Safe Harbor is a legal concept that protects a single website and allows third-party users to share content of legal liability for any illegal post. |Picture source: Getty Images/Istockphoto
Story so far: In submitting a written submission to the Congressional Standing Committee of Communications and Information Technology, the Alliance Department of Information and Broadcasting said it was reconsidering the concept of a safe harbor for social media platforms to address the issue of “fake news” online.
What is a safe harbor?
Safe Harbor is a legal concept that protects a single website and allows third-party users to share content of legal liability for any illegal post. The concept was proposed as a key guarantee in the early days of the Internet to encourage online innovation and prevent website owners from unfairly pursuing content they did not post. The concept of a middleman responsible for third-party content is called intermediary liability, and by default, a safe harbor protects the site from any criminal action of its hosted content. In the United States, the safe harbor was inserted in Section 230 of the Communications Act of 1934, which inserted into decades of laws in 1996. In India, Article 79 of the Information Technology Act 2000 grants similar protections to intermediaries.
Protection is not without conditions. In India, if an intermediary obtains “actual knowledge” of illegal content on their websites, they will lose the liability protection under Section 79 if they do not work for a specific period of time to lower the content. The Supreme Court has read “actual knowledge” which means a court order or government notice.
Without the protection of a safe harbor, online intermediaries could have huge consequences for illegal content. For example, in 2004, the then-head of the website eBay was arrested in India because users listed disks containing child sexual abuse materials for sale.
How does India regulate the protection of intermediary liability?
Although the safe harbor does have the above conditions, the Information Technology (Intermediary Guidelines and Digital Media Ethics Regulations) rules provide other conditions for the platform in 2021 to prevent the protection of intermediary liability. Social media companies need to have a Nodal official, an appeal officer lives in India and need to submit complaint reports about content they receive regularly and measures taken against them for this purpose. The court has been challenged in the past few years.
For example, in 2023, the Alliance Government informed the 2023 Information Technology (Agent Guidelines and Digital Media Ethics Regulations) amendments that contained provisions that would deprive content that had been notified as “fake news” from the fact-checking unit of the News Information Bureau. The amendment was immediately challenged by comedian Kunal Kamra in the Mumbai High Court. The petitioner pointed out that the government has designated fact-checking units that may be truth and put pressure on social media companies to lower content without following a longer process without having to follow the user who sends notifications to content, otherwise the government is beyond its authority. The Mumbai High Court supports Mr Kamra, the case is being appealed by the government.
Why is the government considering amending the terms of the safe harbor?
The government accused foreign social media platforms of violating Indian laws and being too slow to revoke notices. Before Elon Musk acquired Twitter, now known as X, the platform had a public confrontation with the alliance government’s orders regarding hidden user content. X, under Mr Musk, continues to issue the right to block and revoke orders with the government without notifying users of the Karnataka High Court. The alliance government has modified the revision of the safe harbor as a way for platforms to manage their sites more proactively, not just information they think is wrong, but for the deep effects generated by AI, network abandonment, etc. In the United States, for different reasons, former President Joe Biden and current President Donald Trump both targeted Section 230 – Mr. Biden’s White House attempted to weaken the protection of the safe harbor to make the platform accountable for extremist content, while Mr. Trump was suspected of silent conservative voices.
The Ministry of Electronics and Information Technology said it will draft a Digital India Act (DIA) to incorporate these changes, but an overview of how safe harbors will change under the proposed law has not been revealed. In addition, no draft DIA law has been issued.
publishing – May 11, 2025 at 03:54 AM IST
