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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