“Any social media intermediary that uses algorithms to decide the ranking, placement, promotion or suppression of user-generated content is no longer just a pipeline to ferry such content but has an active role in deciding its fate. A blanket safe-harbour protection against liability for such content, therefore, needs a relook,” a senior government official said.
The safe harbour provision protects online intermediaries from legal liability for third-party content, data or communications hosted or transmitted by these platforms. Only platforms that enable peer-to-peer messaging and do not interfere with the content delivered from one user to another will be exempt from the proposed withdrawal of safe harbour protection, the official said.
An email sent to the Ministry of Electronics and Information Technology seeking its response to the proposed move did not elicit a response till press time.
The discussions are at preliminary stages, sources said, adding that the withdrawal of blanket protection for intermediaries will require an amendment to the IT Act, 2000, sources said.
“That is likely to take some time as we will also have to do stakeholder consultations on this issue. We have received representations and some legal feedback on the subject for now and are studying it,” the official quoted above said.
Under Section 79 of the IT Act, all internet intermediaries, including social media platforms, are protected from prosecution against lawful or unlawful user-generated content if they do not initiate the transmission of a message, select the recipient, or modify the information being shown to the user in any way.
The legal provision also mandates intermediaries to exercise due diligence and comply with rules prescribed or amended by the government from time to time. However, this protection does not apply if an intermediary abets, aids or induces the commission of an unlawful act involving such content.
The protection is also withdrawn if an intermediary, despite receiving knowledge of unlawful content through a government notice or court order, fails to remove such material from their platform.
A rethink of the blanket exemption has also been prompted by recent instances of platforms actively influencing the content users see, another official said.
“If an algorithm decides what a user should be shown, the intermediary cannot escape its liability. Who is to be held responsible if explicit content is inadvertently shown to a social media user below the age of 18?” the official said.
Separately, the government is also likely to propose a mechanism that will let users approach social media intermediaries directly to request content takedown in cases where the content is a deepfake or non-consensual image or video and directly impacts or relates to the user, one of the officials quoted above said.
“Currently, the removal of most such content requires a legal process, under which users have to file a complaint with law enforcement agencies or obtain a court order. In cases involving deepfakes or non-consensual images and videos, time is of the essence. Users must therefore be given the option to seek their removal from platforms as quickly as possible,” the official said.