Safe harbour protection for social media not so safe for users

The Ministry of Electronics and Information Technology (MeitY) issued a fresh notice to twitter as a last chance to comply with the directions issued under the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, failing which, twitter may lead to loss of immunity as an intermediary under the IT Act 2000. It is imperative to understand what led to the present situation.
The gift of safe harbour protection could have come with obligation. When section 230 of Communications and Decency Act of USA came into existence, intermediaries were given safe harbour, including the right to moderate in good faith but this double protection came with no concomitant expectations.
This safe harbour concept was followed across the globe. With time, these intermediary platforms started with their own rule book to regulate this space. The self written guidelines may be created by these platforms: (a) to genuinely foster a hospitable safe space and/or (b) for purely economic imperative not to lose users driven away by explicit content and/or (c) by a fear of legal intervention if they are unable to protect their users themselves. However, these written guidelines of the platform are simply not the whole story: there are real differences between the rules these companies post and the decisions they end up making, case by case, in practice.
What they allow and what they prohibit, and how they explain why, are the hottest hot-button questions of the day. The fantasy of a truly “open” platform is powerful, resonating with deep, elysian notions of community and democracy but it is just that, a fantasy. Today, in reality, there is no platform that does not impose their self created rules, to some degree atleast.
These social media platforms or intermediaries reach an enormous number of people and touch an enormous number of interactions. Though the benefits of this may be obvious and even seem elysian at times, the perils are also painfully apparent, more so every day: the obscnce, the pornography- child pornography, the violent, the illegal, the abusive and the hateful.
It was observed that these platforms were oblivious to the problems or self-interested enough to make the space safe and secure for users. To understand how bad is bad? Tempting to act or not to?
The situation has come to where there exist no accountability, transparency, audit trail, appeal, no speaking order, no justifiability, no reason given thereby giving rise to arbitrariness. The action taken by the platform appears to be random, without any semblance of logic. These platforms started to exercise a great degree of control on what is published on their sites, they also derive the financial benefit from the activities of the users. This has created a legal paradox where the victim is left with no remedy despite significant contributory negligence on the part of these platforms.
The State cannot abandon its responsibility to protect its citizens. Which led to a situation, that regulators across the globe started imposing rules, to some degree as not to do so was simply untenable.
Several legal developments are happening in this space. Apart from India, Germany enacted Network Enforcement Act 2018 (NetzDG law) wherein online platforms face fines of up to Ђ50 million for systemic failure to delete illegal content. The Australia’s Online Safety Bill 2021 which came into existence on July 23, 2021 gives the country’s regulators the power to track and take-down on violent threats, revenge porn and other abusive posts on the internet. Users who create such posts face up to five years in prison. Tech platforms that do not remove them within 24 hours will be fined up to $415,000.
Now when these platforms can have their own rules and act upon- what stops them in aligning with the law of land? Especially when twitter has a total reach of 76.9 million users of which more than 23.6 million users are from India as on March 2022 (as per statista).
These platforms cannot shelter under the ‘free speech’. Free Speech is ‘even if you don’t agree, one has a right to say but as soon as it crosses law, law will take its course. Therefore, for these platforms to go beyond the law is contrary to the will of the people.
Constitutionally, any restrictions to the right to free speech and privacy can only be imposed by the state, that too for lawful purposes in a lawful manner.
Irony is, these platforms want to impose restrictions suitable to their own benefits but not according to the law of the nation or to make the online space safe for everyone.
This safe harbour provision has given these platforms a free pass to ignore illegal activities, to deliberately allow repost illegal material, and to solicit unlawful activities while ensuring that abusers cannot be identified often immunizing providers from activities that extend beyond Internet speech, while creating hurdles in the lawful exercise of investigation by the state into patently criminal acts.
Until Platform liability is in place, these platforms will continue to enjoy the two sides of safe harbour- the ‘right but not the responsibility’ to moderate/police their sites as they see fit.

Khushbu Jain is a practicing advocate in the Supreme Court and founding partner of the law firm, Ark Legal. She can be contacted on Twitter: @advocatekhushbu.