Ministry of Information and Broadcasting (MIB) is reconsidering the “safe harbour” clause under Section 79 of the Information Technology (IT) Act, 2000 to curb the spread of fake news. However, the government has ruled out enacting a new law immediately, citing the need for broader consultations in light of constitutional provisions related to freedom of speech and expression (Article 19(1)(a)).
What is Safe Harbour Clause?
Legal Shield for Intermediaries:
- Safe harbour refers to the legal protection granted to intermediaries (like social media platforms) for content posted by users. It shields them from liability unless they fail to act upon receiving “actual knowledge” of illegal content.
Section 79 of IT Act, 2000: Grants conditional immunity to intermediaries if:
- They comply with government-prescribed guidelines.
- They act swiftly upon receiving actual knowledge of unlawful content via court orders or official notification (as clarified by the Supreme Court).
Regulatory Mechanisms in India
IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:
- Mandates platforms to:
- Appoint a Grievance Officer (resident in India),
- Appoint a Nodal Contact Person,
- Periodically submit compliance reports on grievances and actions taken.
- These are mandatory conditions for platforms to retain safe harbour protections.
IT Rules (Amendment), 2023:
- Introduced the PIB Fact Check Unit to label content related to the government as “fake news”.
- Raised concerns as it could lead to automatic loss of safe harbour for flagged content.
Legal Challenge & Court Ruling:
- The amendment was challenged by comedian Kunal Kamra and others in the Bombay High Court, which:
- Struck down the amendment in 2024, calling it unconstitutional.
- Noted that the Fact Check Unit cannot act as the sole arbiter of truth without due process.
Government Response:
- The Ministry of Electronics and IT (MeitY) is preparing to file a Special Leave Petition (SLP) against the Bombay HC verdict to defend the PIB’s Fact Check Unit and the related amendments.
Government’s Position and Concerns
- The government argues that a statutory foundation for the PIB Fact Check Unit is essential to combat misinformation about its policies and programmes.
- It believes that misuse of safe harbour by intermediaries has allowed unchecked circulation of fake content.
- However, it acknowledges the challenge of balancing this with constitutional freedoms and user rights.
Global Perspective
United States Debate:
- Section 230 of the U.S. Communications Decency Act offers similar safe harbour protections.
- President Joe Biden: Called for its revision to increase accountability.
- President Donald Trump: Accused it of enabling censorship of conservative content.
Future Legislative Steps: Digital India Act (DIA)
- Digital India Act (DIA) is expected to replace the IT Act, 2000.
- The draft is awaited, and it may redefine intermediary liability, especially concerning AI content, cybersecurity, child safety, and online harm.
- Likely to restructure safe harbour provisions in the context of fake news, deepfakes, and misinformation.
Significance of Safe Harbour
- Promotes Online Innovation: Encourages platforms to host user content without fear of legal action.
- Checks on Abuse: Protects against arbitrary government takedown requests while ensuring accountability.
- Previous Abuse Example: In 2004, eBay India’s head was arrested over user-uploaded child pornography content — a key example cited in safe harbour debates.