INTRODUCTION
The global digital landscape evolves by the minute as new technological changes enhance the Internet experience for users worldwide. India emerges as a dominant entity on the Internet with almost 850 million users attracting the attention of Big Tech (Apple, Meta and Google) as its most extensive consumer base. The parent act governing activities on the Internet in India is the Information Technology Act 2000. The legislation established almost two decades ago needs an upgrade to align with the political climate and the needs of Indian users. Hence, The Ministry of Electronics and IT is currently engaged in organizing consultations regarding the ‘Digital India Bill’ set to replace the dated IT Act.
WHAT DOES THE DIGITAL INDIA BILL 2023 COVER?
The Digital India Bill 2023 is planned to replace India’s existing Information Technology Act of 2000 and usher in comprehensive oversight of the digital landscape. The bill focuses on addressing modern challenges such as cybercrime, data protection, deep fakes, and online safety. [1]Rajeev Chandrasekhar, Minister of State for Electronics and IT has affirmed that the legislation aligns with India’s ambitious goal of achieving a US$1 trillion digital economy by 2025-26.[2]
The Bill, currently under discussion, is reported to encompass several features that are designed to tackle new-age internet problems. Here are its highlighted aspects:
Reclassification of Intermediaries: The IT Act 2000 defines intermediaries as any existing passage or medium between a user and the Internet. The IT rules further divide them into Social Media Intermediaries (SMIs), Significant Social Media Intermediaries (SSMIs) and Online Gaming Intermediaries.[3] The Digital India Bill organises this segregation and slots intermediaries based on their size and risk factor.[4] The Bill enables customised regulations for different intermediaries, ensuring relevant rules based on their characteristics and impact on the digital sphere.[5]
Cyber Offences: Under the Bill, actionable activities that were previously unlisted are now digital offences with penal provisions. These activities include intentionally spreading misinformation, stealing identities, targeting children with cyberbullying, and other similar actions[6].This provision empowers MeitY to take necessary measures and establish legal frameworks to prevent and punish harmful activities, fostering a safer and more accountable digital environment.
Safe Harbour for Intermediaries: Safe Harbour, as defined in Section 79 of the IT Act, 2000, grants legal protection to online intermediaries such as social media platforms from user-generated content posted on their platforms.[7] The Safe Harbor provision has allowed the flourishing of mega-platforms like Google and Meta in India. But Chandrashekhar believes that the Internet of the 2000s has evolved significantly to grant intermediaries an immunity of this magnitude.[8]
Regulations for User Harms: The Internet of the new age comes with its own designated set of issues that fall under the criteria of user harms. User harms broadly include AI generation technologies like ChatGPT that potentially threaten the User experience on the Internet.[9] The new Bill has a provision that will address these user harms in depth with a focus on misconduct unique to the online world and tackle any possible instances of misuse, violations of regulations, or adverse outcomes that could arise concerning these technologies.[10]
Platform Accountability: The Digital India Bill aims to establish legal measures for holding platforms accountable for hosting prohibited content, including pornography, harmful material for children, copyright infringement, misleading information, impersonation, content undermining India’s unity and integrity, computer malware, banned online games, and other illegal material.[11] This addresses the varying penalties across platforms and the need to address web-specific crimes.
WHY DO WE NEED A NEW INTERNET LAW?
The government’s call for a new law acknowledges the outdated nature of the existing IT Act in regulating the rapidly evolving internet landscape. The gradual amendments and minor changes are no longer sufficient to keep pace with technological advancements. The use of AI-powered algorithms raises concerns about data privacy, while the categorization of intermediaries needs an upgrade to match their specific features. Social media intermediaries, including ISPs, websites, e-commerce platforms, and cloud services, face strict obligations with no scope for relief. These obligations, such as responding to content removal requests within 72 hours merely increase costs and legal liabilities without effectively addressing internet-related risks[12]. Thus, a comprehensive and updated legislative framework is crucial for a balanced and secure online environment.
WHAT SHOULD BIG TECH BE CONCERNED ABOUT?
The increasing impact of AI in different industries has triggered a crucial discussion concerning the legislative framework governing its implementation. Some stakeholders have emphasized the requirement for specific clauses or a dedicated law to govern AI, emphasizing that a code of ethics alone would be inadequate for India, considering its rapid progress in this field. The proposed legislation aims to establish defined boundaries for companies and internet intermediaries using AI and machine learning in consumer-facing applications. The objective is to safeguard users from potential harm, and the legislation proposes strict penalties for any violations.[13] Stakeholders have voiced diverse perspectives regarding the extent and execution of these restrictions. While some emphasize the significance of responsible AI utilization, others underscore the necessity for clear and proportionate definitions of these boundaries. The range of opinions reflects the dynamic discourse surrounding this issue.
The elimination of safe harbour provisions, which protect intermediaries, has raised concerns and sparked a debate. Thanks to these provisions, platforms like Facebook, Twitter, Instagram, YouTube, and WhatsApp have thrived in India. However, there are differing opinions on the necessity and definition of a safe harbour in today’s evolved internet landscape. Rajeev Chandrashekhar believes that the concept is debatable due to the significant changes since the IT Act’s inception.[14] The complex classification of intermediaries further complicates the task of crafting regulations. Some stakeholders argue for preserving safe harbour for traditional intermediaries without content moderation. The others advocate for a nuanced approach considering the evolving nature of online platforms and diverse internet participants. Technology experts emphasize that safe harbour is vital for protecting online freedom of speech and enabling platforms to tackle illegal content while maintaining a delicate balance. The rapid evolution of technology has seamlessly integrated real-world issues with the powerful medium of the Internet, capable of disrupting established systems. Recent global events vividly illustrate the unchecked influence of social media platforms during significant global events.[15] The existence of conflicting perspectives on the issue provides a valuable understanding of the need for a safe harbour provision.
The proposed Bill also aims to tackle the dominance of mega-corporations in the digital realm, such as Google, Meta, and Apple. Their overwhelming monopolization and excessive influence have become alarming. These giants have significant leeway that could be used to gain unfair advantages over emerging platforms. There are diverse viewpoints on this matter, with some advocating for measures to promote healthy competition and protect smaller players, while others emphasize the importance of balanced regulations to foster futuristic change and maintain a competitive digital environment.
CONCLUSION
In summary, the Digital India Bill positions India as a possible global digital leader, aiming to secure a future with accessible and secure digital infrastructure. The Bill’s collaboration with stakeholders will ensure effective implementation, while a strong legal framework for governance and data protection inspires user confidence. Certain challenges like inclusive access and privacy concerns, need to be addressed and elaborated on. Overall, the bill has the potential to revolutionize India’s digital landscape, foster economic growth, and empower its citizens, leading to a truly inclusive and digitally empowered nation.
Author(s) Name: Nityashree B (NMIMS School of Law)
Reference(s):
[1] Khyati Anand, ‘Digital India Bill 2023: Key Provisions and Stakeholder Perspectives’ (India Briefing, 03 July 2023) https://www.india-briefing.com/news/digital-india-bill-2023-key-provisions-stakeholder-perspectives-28755.html/ accessed 20 July 2023
[2] Soumyarendra Barik , Digital India Bill draft soon: What to expect from India’s overhaul of Internet laws’ (The Indian Express, 29 May 2023) <https://indianexpress.com/article/explained/explained-sci-tech/digital-india-bill-draft-what-to-expect-8632982/> accessed 20 July 2023
[3] Information Technology Rules 2021, r 3(1)
[4] Rohit Kumar, ‘Laying the foundation for a future-ready digital India’ (The Hindu, 27 June 2023) <https://www.thehindu.com/opinion/op-ed/laying-the-foundation-for-a-future-ready-digital-india/article67012692.ece> accessed 20 July 2023
[5] Anand (n 1)
[6] Ibid
[7] Information Technology Act 2000, s 79
[8] Soumyarendra Barik,’ Govt rethinking ‘safe harbour’ in Digital India Bill: How this could change internet landscape’ (The Indian Express, 11 March 2023) <https://indianexpress.com/article/explained/explained-sci-tech/digital-india-bill-new-law-internet-explained-8488748/> accessed 20 July 2023
[9] Soumyarendra Barik, ‘New IT Act looks to rein in ‘deliberate’ misinformation’ (The Indian Express, 15 July 2022) <https://indianexpress.com/article/technology/tech-news-technology/new-it-act-looks-to-rein-in-deliberate-misinformation-8027748/#:~:text=The%20new%20legislation%2C%20being%20referred%20to%20as%20the,was%20last%20amended%20in%202008%2C%20the%20official%20said.> accessed 20 July 2023
[10] Anand (n 1)
[11] Ibid
[12] Information Technology Rules 2021, r 3(1)(b)
[13] Ibid
[14]Aarathi Ganesan, ‘Should There Be Safe Harbour At All?”: 30 Talking Points From The Digital India Act Consultation’ (Media Nama,1 0 March 2023) <https://www.medianama.com/2023/03/223-30-talking-points-digital-india-act-consultation/> accessed 20 July 2023
[15] Issie Lapowsky, ‘Here’s How Facebook Actually Won Trump the Presidency’ (Wired, 15 November 2016) <https://www.wired.com/2016/11/facebook-won-trump-election-not-just-fake-news/> accessed 20 July 2023
