Vol. 19 Issue 1 (2023)
Conceptualising India's Safe Harbour in the era of Platform Governance
The push for greater regulation of online platforms has led to calls to re-evaluate the statutory immunities granted to online intermediaries for hosting unlawful third-party content (i.e., safe harbour). This paper argues that greater accountability for online platforms need not interfere with existing (and indeed strengthened) safe harbour protections. However, to achieve this outcome, legislators must recognise the difference in enforcement approaches between secondary liability and platform governance regimes. This paper argues the types of obligations that can be imposed as pre-conditions to safe harbour are different from those that can be imposed as direct statutory obligations. This is because secondary liability is enforced through individual suits against individual pieces of content while direct statutory obligations are continual and apply to all content on and all procedures of a platform. Relying on the principles of secondary liability, this paper outlines the types of obligations that can be meaningfully enforced (and those that cannot) using the tool of secondary liability. Using India’s Intermediary Guidelines as a case study, this paper highlights the importance of matching their type of obligation to the appropriate enforcement mechanism (e.g., transparency mandates cannot be imposed as pre-conditions to safe harbour) and the risks to both free speech and platform accountability of failing to do so. Recognising the difference between how secondary liability and direct statutory duties operate should lead to a reassessment of arguments that call for a dilution of safe harbour in the name of greater platform accountability. The paper concludes that intelligent statutory design can distinguish between the obligations that can be imposed as pre-conditions to safe harbour and those that ought to be direct statutory duties, allowing legislators to achieve greater transparency and accountability from platforms while retaining (and even strengthening) existing safe harbour protections.
Vasudev Devadasan is a Consultant at the Centre for Research and Planning, Supreme Court of India.