Free expression is not safe in India: government must not slash social media safe harbour protection

In a severe blow to free speech, the Indian government is reportedly gearing up to strip “larger platforms” such as Twitter, Facebook, and YouTube, of immunity against third-party content posted on their websites. This would decisively tip the scales in favour of censorship and fundamentally alter the internet landscape to the detriment of people’s rights.

Intermediaries — the platforms hosting the content — in major democracies have safe harbour protection, also known as an “immunity shield,” exempting them from liability for content posted by people who use their platforms. In India, such protection is granted under Section 79 of the Information Technology Act, and has been reinforced by the Supreme Court’s landmark Shreya Singhal judgment.

The safe harbour regime is crucial to strengthening democracy — in India and across the globe. It prevents pre-censorship and over-censorship by platforms, and allows people to exercise their fundamental right to freedom of expression. With digital authoritarianism on the rise in India, and people’s online freedom hanging in the balance, slashing this immunity would have disastrous consequences. This action is not an effort to rein in Big Tech, it is a blatant attack on human rights by intimidating the online ecosystem into compliance with censorship. Raman Jit Singh Chima, Asia Pacific Policy Director and Senior International Counsel at Access Now

The report in the Times of India states that the government will remove immunity for certain platforms through a set of problematic amendments to the IT Rules, 2021. The original language set by the Indian Parliament mandated the safe harbour provision to apply to all intermediaries. Lawmakers did not provide for varying standards of immunity based on the type of intermediary, as is now being applied by executive branch officials.

India’s IT Rules of 2021 undermine free speech and privacy. The proposed changes worsen the impact by further tightening the government’s grip on online content, and now potentially removing safe harbour protection. Alarmingly, these substantive changes are being made through the executive’s limited rule-making powers without legislative backing. Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now

The Indian government must commit to protecting free expression, maintain safe harbour protection, implement stakeholder feedback, and refrain from introducing any amendments or laws that fail to protect human rights.