INTRODUCTION
A few days ago, Meta’s subsidiary Instagram removed a video in which Prime Minister Narendra Modi addressed protesting students over the NEET question paper leak. Meta said the post was taken down by an AI automated content moderation system, calling it an “isolated technical glitch”. The incident however, not only worsened the political image of the government but also drew the attention of the netizens on the provision of Section 79 of Information Technology (IT) Act, 2000 – the legal “safe harbour” given to internet services. The episode intensified the discussion on whether social media platforms can still claim safe harbour by using AI automated moderation services.
BACKGROUND
Section 79 of the IT Act offers safe harbour protection to digital intermediaries for third-party or third-user content, guaranteeing civil and criminal immunity in certain conditions. Digital platforms will be safe at least under this section, if they follow the statutory due diligence and promptly remove any illegal content on the platform on receiving the notice from the authorized government authority. But the exemption from liability is not absolute. If knowingly, the platform contributes to an unlawful act, or doesn’t disable access to unlawful content once it has gained actual knowledge through a court or government order, the protection ends.
India’s safe harbour regulation is very different from the US model. In the US (Section 230 of the Communications Decency Act), the law provides safe harbour even if platforms moderates or removes content (Zeran v. America Online). In India, a platform can only be a “passive conduit” if the intermediary doesn’t ‘select’ recipients or initiate transmission of the information or modify its content.
Content Moderation now In Shreya Singhal v. Union of India, the Supreme Court did not, directly, consider the content moderation obligations of intermediaries. The Court simply held that an intermediary shall, only on directions from a court or government authority through a notice under Article 19(2), disable access to specific content. These safeguards are now being eroded by case-law developments like the Delhi High Court judgment in Christian Louboutin v. Nakul Bajaj (where it was held that in the presence of Section 79 safe harbour provisions, active moderation of content is anathema) and the union government’s commencement of ‘Sahyog’, an administrative content blocking portal in 2024.
KEY POINTS
Parliamentary Standing Committee, led by MP Nishikant Dubey. Ministry of Electronics and Information Technology (MeitY) has set up the Parliamentary Standing Committee to investigate Meta. For example, Loss of Passivity: The Standing Committee indicated that a platform with algorithmic content management will not be a passive / neutral host under the IT Act (and thus not entitled to the legal protections provided by Section 79).
What Meta asked for The Parliamentary Committee: request Meta directly and formally, through the CEO, Mark Zuckerberg removes the immunities for Meta’s safe harbour.
Powered Live: Post hosts are increasingly no longer the people who originally upload the post to the platform. Today, an AI system may actively rank, curate, recommend, and moderate posts (e.g., through content filtering) on a platform.
ANALYSIS
The controversy reveals a fundamental tension in the legal architecture that India has built around online content. Existing regulations create an impossible choice for platforms: use automated AI moderation to weed out objectionable material, risking an active controller label and losing safe harbour; or do nothing and risk statutory due diligence violations.
The precedent that would be set by rescinding safe harbour immunity based on bugs in automated AI moderation is equally damaging. The removal of platforms’ statutory exemption from liability for automated filtering errors will incentivize platforms to apply drastic precautionary measures in the form of precautionary removal. This would amount to a violation of individual’s right to free expression under Article 19(1)(a). It can even lead to the flouting of constitutional protect in Shreya Singhal.
CONCLUSION
The differences between Meta and the Parliamentary Standing Committee show how Section 79 of the IT Act (designed in 2000 for passive web hosts) is poorly suited to regulate the AI-enabled public square. Applying an outdated ‘passive conduit’ model of regulation on more sophisticated algorithmic platforms puts the entire regulatory system into disarray. Parliament should amend Section 79 to set modern statutory standards that facilitate AI moderation without undermining free expression and platform responsibilities.
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WRITTEN BY- AASTHA KEDIA
