Safe harbour at risk – Regulation of Net intermediaries | 13th March 2023 | UPSC Daily Editorial Analysis

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What's the article about?

  • It talks about the ongoing debate over the regulation of net intermediaries.


  • GS2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation;
  • GS3: Awareness in the fields of IT;
  • Prelims


  • Recently the Ministry of Electronics and Information Technology held its first consultation on the Digital India Act. This new legislation will soon replace the existing Information Technology Act, 2000.
  • The Minister of State for Information Technology, Rajeev Chandrasekhar, asked this question as he outlined the key points of the proposed law: “should there be a ‘safe harbour’ at all for all intermediaries?
  • In this article, write analyses this statement.

Some proposed features of the Digital India Act 2023:

  • Legally protected freedom of expression on social media sites.
  • Provisions for online safety
  • New Adjudicatory Mechanism
  • Safe Harbour – this is the point of contention in this new proposed act.

What is ‘safe harbour’?

  • Safe harbour – as prescribed under Section 79 of the IT Act, 2000 – is legal immunity that online intermediaries enjoy against content posted by users on their platforms.
  • This is available as long as these platforms abide by certain due diligence requirements, such as censoring content when asked by the government or courts.
  • The concept originally came from Section 230 of the United States’ Communications Decency Act, which has been termed “one of the foundational laws behind the modern Internet”.
  • It is one of the main reasons behind the meteoric rise of Internet giants such as Facebook that have defined the Web 2.0 era where users can post content on the internet.
  • Tech experts believe that safe harbour is a crucial tenet for ensuring free speech on the Internet since platforms only have to act on speech that is deemed illegal.


  • Regulation of hate speech and disinformation on the Internet is a must and intermediaries, including digital news media and social media platforms, have an accountable role to play.
  • The IT Rules’ specifications on giving users prior notice before removing content or disabling access, and for intermediaries to come up with periodic compliance reports are well taken.
  • Social media intermediaries should not shut down users’ posts or communications except in the interests of public order and to avoid legal consequences.
  • But care should be taken to ensure that requirements on intermediaries should not become needlessly onerous and punitive, which also vitiate the principle of safe harbour.
  • There is a legitimate concern that the government is keener on regulating or taking down critical opinion or dissent in social media/news platforms than hate speech or disinformation, which in many cases has originated from representatives of the state.

Way Forward:

  • Safe harbour provisions that explicitly provided immunity to online services with respect to user-generated content had gone a long way in catalysing the Net’s development.
  • While modern regulations to tackle issues related to misinformation, problematic content and the side effects of the new form of the Internet are a must, they should still retain first principles of safe harbour without whittling down their core.

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