Upcoming digital Bill may widen the ambit of online censorship

The changes include dropping language that prescribes some legal guardrails around blocking orders, and potentially opening up the application of the provision to other conditions.

The Bill is a key part of a comprehensive legal framework which the Centre is trying to create. This framework encompasses various legislative measures such as the recently notified Digital Personal Data Protection Act, 2023, the draft Indian Telecommunication Bill, 2022, and a policy addressing the governance of non-personal data.

Currently, Section 69 (A) of the IT Act allows the government to issue content-blocking orders to online platforms such as social media sites if it is “necessary or expedient” to do so on account of national security, public order, and friendly relations with foreign governments, among other things.

However, under the changes being considered, the government could drop the requisite of blocking orders to be “necessary or expedient” and also widen the ambit of such orders to content that “violates any law for time being” apart from the typical rider of national security, it is learnt.

“The idea is to streamline the process of issuing content takedown orders and to also open the ambit for issuing such orders for violation of any existing law,” a senior government official said, requesting anonymity since the draft is yet to be completely finalised and deliberations are private.

The Ministry of Electronics and IT did not respond to a request for comment.

The development comes even as India — led by the government and various courts — has witnessed a growing trend of online content censorship. Between 2014 and 2020, the number of content-blocking orders issued to social media companies by the government increased by almost 2,000 per cent, data shared with Parliament showed.

According to the data shared in Lok Sabha by former Minister of State for Electronics and IT Sanjay Dhotre, the government ordered social media companies to take down 9,849 links from their platforms under Section 69 (A) of the Information Technology Act, 2000, in 2020, compared to 471 such requests made in 2014, an increase of 1,991 per cent.

The platform X (formerly Twitter) had also challenged some of the IT Ministry’s content-blocking orders in the Karnataka High Court last year. The Court, however, dismissed the company’s plea and also imposed a penalty of Rs 50 lakh, citing its conduct of approaching the court without complying with the Central government’s orders.

Complying with the government’s takedown orders is a key requirement for the legal immunity — commonly known as safe harbour — that social media platforms such as Meta, YouTube, and X enjoy from user-generated content hosted by them.

Safe harbour is offered by default to online platforms that are classified as “intermediaries” under Section 79 of the IT Act, provided they adhere to certain due diligence requirements laid down by the government.

However, under the Digital India Bill, the government could stop offering the immunity to platforms by default.

Under consideration is a plan that empowers the Central government to decide which intermediaries should have safe harbour, meaning that the protection will no longer apply to platforms just by virtue of being intermediaries.

According to the official who did not wish to be named in this report, platforms that play a role in transmission, caching, or hosting content while exercising editorial responsibility over it will not have safe harbour.

While it is currently unclear whether social media platforms will be offered safe harbour — a key tenet of facilitating online free speech – by default, the change could give the government a whip to control who gets exemptions, and who does not.

The government is also planning to establish a regulator for the online space, called the Digital India Authority which will primarily determine non-compliance with provisions of the Digital India Bill, whenever it becomes law.

The Bill, as reported by The Indian Express earlier, will also focus on user harm and categorising acts like deliberate misinformation as offences.