Software collaboration and the global push to rewrite platform liability

Safe harbors that shield online platforms from liability for user content helped make the modern internet possible. Yet those protections are under pressure worldwide as regulators seek to curb harmful content and expand platform accountability. While the spotlight has been on social media, the fallout from these policy shifts can spill over onto software development platforms, which operate under a very different risk profile.

Most regulatory proposals do not distinguish code hosting and collaboration services from general-purpose content platforms. That lack of differentiation creates three distinct dangers for developers:

  • Misapplied liability: Software collaboration platforms carry far lower risk for most categories of objectionable content, but platform regulation rarely acknowledges that distinction.
  • Restricted access: Narrower safe harbors reduce access to source code, undermining not only development work but also developers’ rights to free expression, assembly, and association online.
  • Fragile ecosystems: When a single project becomes unavailable due to liability concerns, every downstream project that depends on it can break, jeopardizing the broader software supply chain.

Policymakers addressing problems like disinformation need to account for these realities. Regulation should be calibrated to the varying levels and types of risk across the full spectrum of user-generated content platforms—not written as if every platform were a consumer social network.

Why developer input matters

As governments around the world consider intermediary liability reforms, technically informed perspectives are scarce but highly valued. Developers have already demonstrated that they can shape legislation: in the case of the EU Copyright Directive, software collaboration platforms were deemed irrelevant to the directive’s purpose, since developers who post code publicly intend it to be shared and neither they nor the hosting platforms profit from that sharing. That outcome came about because developers engaged directly with the process.

If you are in a jurisdiction considering such reforms, reaching out to elected representatives can make a difference. The key points to communicate:

  1. Platform liability is not the right tool for every online content problem. When the root causes are offline, addressing them directly is more effective than penalizing intermediaries.
  2. Where platform liability is warranted, rules must reflect a platform’s specific risk profile. Disinformation, for example, is a far greater concern on general-purpose consumer media than on code collaboration services.

Developers who want to review a specific proposal or prepare talking points for policymakers can contact the Developer Policy team via Twitter or email.

Policy landscape: Where platform rules stand

Governments around the world are actively reshaping the legal environment for online intermediaries. Several major proposals and recently enacted laws could materially affect how developers build and collaborate on software platforms. The timeline below covers the most significant developments.

Proposed legislation under review

Australia — Online Safety Bill 2021: Introduced in February after a consultation period that ran from December 2020 to February 2021, the bill could pass in the coming weeks.

Brazil — Internet Freedom, Responsibility, and Transparency Act: Known as Brazil's "fake news" bill, the measure passed the Senate in June 2020 and moved to the House (Câmara dos Deputados) in July, where it remains under consideration.

EU — Digital Services Act (DSA): The proposed DSA is the main vehicle for updating the E-Commerce Directive, the EU's 20-year-old intermediary liability framework. GitHub contributed to OpenForum Europe's submission regarding last year's DSA consultation and to a subsequent response to the Commission's proposal this year.

Austria — Hate on the Net law: The Austrian Parliament released a draft of this legislation last September, with a public consultation ending October 15.

France — law to combat hateful content on the internet: France's Constitutional Court struck down key provisions of this bill in June 2020. The bill's sponsor considered revival after a terror attack near Paris in October, and the measure is now being taken up as part of the bill against separatism, which was presented to the Council of Ministers in December and adopted by the National Assembly in February.

Germany — Network Enforcement Act (NetzDG) amendments: Germany's parliament is seeking to amend the act, but the Federal President has voiced concerns about new requirements to hand over sensitive user information and has not yet signed the revised bill.

South Africa — Films and Publications Amendment Act: Public comment was opened last August on proposed amendments to the act — which has been dubbed the "Internet Censorship" bill — following the act's passage in 2019.

UK — Online Safety Bill: The UK is expected to publish an Online Safety Bill this summer, following its Online Harms White Paper from 2019 and subsequent public consultations.

US — Section 230 and DMCA Section 512: With a new president and new Congress in 2021, monitoring continues on new bills in this space, following the established frameworks of the Digital Millennium Copyright Act (DMCA) Section 512 and Communications Decency Act (CDA) Section 230.

Recently enacted rules

India — Information Technology Act: New rules published in February, the Intermediary Guidelines and Digital Media Ethics Code, are already in effect. Additional obligations take effect at the end of May for online platforms with five million or more registered users in India, which qualifies them as "significant social media intermediaries." GitHub joined with Mozilla and Wikipedia in 2019 and with Mozilla and Cloudflare in 2020 to voice concerns and make recommendations to the Ministry of Electronics and IT.

Pakistan — Citizens Protection (Against Online Harm) Rules 2020: Pakistan passed the initial rules in January 2020 and published a revised version, the Removal and Blocking of Unlawful Online Content, in October 2020.

Singapore — Protection from Online Falsehoods and Manipulation Bill: Passed in 2019, this "fake news" law remains in effect.

Turkey — Social Media Law, 2020: The law, formally titled Organizing Publications made in the Internet Environment and Combating Crime Committed through Publications about the Law, took effect in October after parliament passed it in July.

For regulators to craft effective, technologically informed policy, they need input from the developer community. Developers are well positioned to explain how new rules affect software development and collaboration. The Developer Policy team welcomes questions and discussion via Twitter or email.