In recent months, there have been discussions about the concept of ‘intermediaries and safe harbour’ protection in India and an intermediaries ability to claim safe harbour in the context of deepfakes. It is undeniable that the Information Technology Act needs to be augmented with a modern and up-to-date tech legislation.
The ‘Digital India Act’ which is purposed to meet the challenges of the present-day digital ecosystem in India seems to be the solution. This process of updating the law involves intrinsically reconfiguring safe harbour principles, which perceivably continue to be the default option for all intermediaries under the present law.
The concept of safe harbour protection, as embodied by Section 230 of the US Communications Decency Act and Section 79 of the Information Technology Act, has played a pivotal role in facilitating the growth and development of the internet. By exempting intermediaries from liability for third-party content, these provisions have nurtured a vibrant online environment by fostering free speech and enabling internet users to freely express themselves without arbitrary intrusion.
However, the rise of deepfakes, manipulated content and misinformation has raised significant concerns about the potential misuse of safe harbour immunity. Critics argue that intermediaries, by passively hosting deepfakes, become complicit in the spread of misinformation, thus undermining the integrity of the online ecosystem. These concerns are triggering a paradigm shift in the realm of intermediary liability. Governments, industry bodies, and jurists are engaged in critical discourse to recalibrate the balance between protection of free speech and intermediary liability for hosted content.
The safe harbour principles are fundamental to the functioning of a free, open to all and borderless internet. Any legislation that seeks to completely abolish safe harbour, would not only be ineffective but also counterproductive. Whilst the discourse seems to suggest that Digital India Act may potentially weaken safe harbour protection, I maintain that intermediaries should still be entitled to claim safe harbour benefits, if they can demonstrate fulfilment of well-defined thresholds of due diligence. It is the due diligence thresholds that need revision and reset; not the concept of safe harbour itself. Eliminating the safe harbour principle altogether would blur lines between content publishers and intermediaries, which would only further undermine the efficacy of internet, making the remedy worse than the malady.
It is imperative for the discourse to emphasise that whilst determining due diligence obligations for safe harbour protection, our Constitutional thresholds and goals are not ignored. Whilst legislation can define specific due diligence requirements, it ought not to vest upon the executive, the power to determine safe harbour status of an intermediary.
Any role to the executive in such determination will indirectly permit it to pre-censor content and suppress dissenting voices detrimentally impacting the fundamental right to freedom of speech. This would create a dangerous precedent where the executive could potentially curtail or influence free speech by selectively granting or withholding safe harbour protection. Constitution of India is people centric and permits ‘free trade’ — in ideas and ideologies.
After all, as has been observed by the Supreme Court of India, it is not the function of the government to keep the citizen from falling into error; it is function of the citizen to keep the government from falling into error. ‘Thought control’ is alien to our constitutional democracy.
Specifically in the context of deepfakes, the notion that intermediaries will not be entitled to safe harbour protection has become a prevalent assertion, often repeated without rigorous examination. This superficiality stems from the belief that intermediaries, simply by hosting deepfakes, are complicit in their distribution and the harm they inflict.
This reasoning is fundamentally flawed as it overlooks the intermediaries' role as mere passive conduits of content and not the originators of deepfakes. The issue deserves a more intelligent debate. The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox, the latter offering a more controlled environment for expressing speech. Superficial discourse will fail to acknowledge the complexities inherent in determining intermediaries' culpability for deepfakes and the legal framework surrounding them.
In light of the unique challenges posed by deepfakes and intermediary’s ability to claim safe harbour, technological solutions may offer better remedies than superficial regulations. Tech players must collaborate to develop common standards to ensure transparency when AI-generated media is shared. This could be achieved through robust mechanisms to identify and flag deepfakes, including systematic fact-checking, timely disclosure and watermarking.
Policymakers and industry stakeholders must collaborate to educate users about the dangers of deepfakes and methodologies to identify them. After all, the internet user is also a stakeholder in the assessment of authenticity and potential harm of deepfakes. Prudence lies in strengthening the existing safe harbour regime whilst enhancing the accountability and transparency of intermediaries.
To conclude- any legal framework that seeks to undermine the fundamental principles of safe harbour protection or grants excessive discretion to the executive in determining intermediaries' eligibility for safe harbour protections will ultimately exacerbate the issue of online harm.
—The author, Sajan Poovayya, is a Senior Advocate with constitutional, technology, corporate and commercial law practice in the Supreme Court of India. He was also among the youngest to serve as an Additional Advocate General for the State of Karnataka. The views expressed are personal.
(Edited by : C H Unnikrishnan)
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