India and the world want social media firms to do more for 'safe harbour'

 

As India tightens the noose of regulatory compliance around social media platforms, there have been concerns about dilution of the safe harbour provision in the country’s Information Technology Rules.

Safe harbour means immunity for social media companies, in case any content transmitted over their platforms violates the local laws. Facebook, Twitter, Instagram, YouTube and a host of other social media platforms enjoy such immunity, as several jurisdictions, including India, recognise these platforms are like bookstore owners, mere conduits that shouldn’t be held accountable for the content of the books in their store.

But in the digital economy, various countries, looking to check the spread of misinformation and hate speech, require social media platforms to fulfil certain conditions to enjoy their safe harbour. A common condition across countries is that these platforms should remove ‘unlawful’ content, after receiving actual knowledge about the same in a notice from the courts or law enforcement agencies (LEAs). India’s new IT rules broaden these conditions substantially. They require significant social media intermediaries — social media platforms with over 5 million users — to identify the first originator of any piece of information, which the government feels jeopardises the sovereignty and integrity of India. Law experts have pointed out that the wording of these rules is too broad-based and could mean many things. There is also the concern about what the government treats as fake news or unlawful content, as recent events such as the clampdown on young ‘toolkit’ activists would attest.

WhatsApp said that to identify the first originator, it would need to break the end-to-end encryption (E2E) on its platform. Tech experts agree. E2E forms the fulcrum of WhatsApp’s, Signal’s and Telegram’s claims of safeguarding user privacy. It means that no one, even WhatsApp, can read your messages. But to comply with the new norms, it would have to store ‘hashed’ data about the originator of each message. So the new rules require platforms to store more user data, undermining the principle of data minimisation.

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