The Ministry of Electronics and IT has been actively organising consultations on the proposed “Digital India Bill” to build conceptual alignment on a new law that will replace India’s 23-year-old Information Technology (IT) Act. The goal is to upgrade the current legal regime to tackle emerging challenges such as user harm, competition and misinformation in the digital space. The Union Minister of State for Electronics and Technology, Rajeev Chandrasekhar, said that the first draft of the Bill should be out by the end of June. This is a much-anticipated piece of legislation that is likely to redefine the contours of how technology is regulated, not just in India but also globally. Changes being proposed include a categorisation of digital intermediaries into distinct classes such as e-commerce players, social media companies, and search engines to place different responsibilities and liabilities on each kind.
Why the present regime is untenable
The current IT Act defines an “intermediary” to include any entity between a user and the Internet, and the IT Rules sub-classify intermediaries into three main categories: “Social Media Intermediaries” (SMIs), “Significant Social Media Intermediaries” (SSMIs) and the recently notified, “Online Gaming Intermediaries”. SMIs are platforms that facilitate communication and sharing of information between users, and SMIs that have a very large user base (above a specified threshold) are designated as SSMIs. However, the definition of SMIs is so broad that it can encompass a variety of services such as video communications, matrimonial websites, email and even online comment sections on websites. The rules also lay down stringent obligations for most intermediaries, such as a 72-hour timeline for responding to law enforcement asks and resolving ‘content take down’ requests. Unfortunately, ISPs, websites, e-commerce platforms, and cloud services are all treated similarly.
