What are India’s intermediary protection rules?

What is intermediary status?

India’s Information Technology (IT) Act covers a broad set of companies under the intermediary status. According to Section 2 of the IT Act, apart from companies such as Facebook Inc., Twitter Inc. and other social media platforms, intermediaries also include firms such as Amazon.com Inc. and Zomato. The definition of intermediaries even covers cyber cafes, which can be used by users to access the internet. What is worth noting is that intermediary status  and intermediary  protection, also  called  safe  harbour,  are  defined in different parts of the  Act and losing  the  protection  doesn’t mean losing the intermediary status.

What is intermediary protection?

Section 79 of the IT Act provides protection to intermediaries from being held liable for data, content, and communication that they have no personal knowledge of, shared by users through them. The protections were formulated after Avinash Bajaj, the chief executive of auction portal Baazee.com, was arrested in 2004 for an obscene MMS clip being put up for sale on the platform. This case showed that platforms could be held liable for allowing illegal use cases, but only if they did not take adequate measures to avoid such instances. These measures are defined in the new intermediary guidelines, which came into effect on 26 May.

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What does losing the protection mean?

An intermediary can be taken to court for not following a government request even with safe harbour, but only with respect to that post. However, if a platform like Twitter does not comply with the intermediary guidelines, it loses the shield entirely, which makes them susceptible to accusations of publishing content that breaks the law.

Why do platforms want safe harbour?

Platforms such as Twitter and Facebook, which have millions of users, argue that they cannot possibly be aware of every post, just as the managing director of Amazon does not always know all the items being sold on the online marketplace. As a result, they cannot be held liable. Removing safe harbour protections would mean that the platforms have to actively police and sensor whatever content is available on their services, which in turn could violate free speech and other fundamental rights.

What is the argument against safe harbour?

In contrast, there’s an argument that by using ranking algorithms to determine what gets seen on their platforms, these firms are making editorial judgements. So, if a newspaper is liable for editorial decisions, then why shouldn’t they? There’s also the matter of power here, and the fact that Facebook, Twitter, Google, etc. are ultimately in control of their respective marketplaces and wield more power than an elected government, in determining how information or utility marketplaces work within a country.