A significant development to this debate is the recent feud between US President Donald Trump and Jack Dorsey, CEO of Twitter. While, on its surface, it is a battle between two powerful Americans, it can have longlasting effects on how we consume media in India.
Generally, both in the US and in India, social media companies are not liable for the content that is posted by users under what may be termed as “safe harbour laws”. At the same time, they can take down information without any legal liability, permitting them to police their platforms. It permits them to make choices and indeed such choices may come with political biases. As Stanford Cyber Policy Center’s Daphne Keller has argued, social media platforms should act as “good Samaritans”, and not be legally obligated to enforce neutrality, since, “by trying to moderate speech… they will be deemed insufficiently neutral”.
Such an immunity is not absolute. It rests on compliance — whether they are taking down posts once notified of the illegality. These principles first developed through legislation and court challenges in the late 1990s and early 2000s and have received global acceptance. In India, this occurred a bit later, with the law being developed till 2015. It has remained somewhat static since then.
But this law is plainly antiquated. Today, social media platforms are incredibly powerful and ubiquitous. They have upended traditional news media, broadcasting and rewritten how people conduct themselves on a daily basis in nearly every aspect of their lives. It determines national debates, personal habits and can act as the arbiter and source of power. This has led to several nuanced questions which legal scholars and technical experts are still trying to answer.
For instance, to deal with the problem of disinformation, should platforms self-censor? If yes, in what circumstances? Or, should they maintain a level of neutrality? These obtuse questions around designing regulatory structures for the future of safe harbour protections are what is at the centre of the present debate.
The specific factual controversy which provides context for this arises from allegations by Trump after two of his tweets on mail-in ballots were “factchecked” by Twitter, which appended labels, warning users about their accuracy.
In response, a fuming Trump issued a presidential order on May 28, undermining the protections enjoyed not only by Twitter but other intermediaries as well. This presidential order is broken into eight sections. Eric Goldman, law professor at Santa Clara University School of Law, who analysed it, termed it “pro-censorship political theatre”.
It increases government power by now providing a questionable legal basis to re-interpret under what actual conditions immunities are available to social media platforms and encourages prosecution against them for political bias. There is emerging consensus that many portions of this executive order would be unenforceable and even susceptible to legal challenge for violating free speech protections under the United States Constitution, as per an analysis by Keller as well as tweets by David Greene, civil liberties director, Electronic Frontier Foundation.
Closer home, we are facing a somewhat similar moment. This goes above and beyond concerns on political bias or misinformation to diverse arguments made for greater control and content censorship. We have a clumsy draft, termed as Draft Intermediary Rules, that contains provisions that would require automated filtering and heavy-handed censorship.
They also included provisions for a novel concept termed “traceability”, which was first evangelised, to my knowledge, on Twitter posts when mob lynchings were linked to WhatsApp forwards. This would have broken end-to-end encryption, which is a much-needed relief to ordinary people who discuss incredibly sensitive information online and made them susceptible to cyber-attacks and mass surveillance.
Finally, in this complex soup of competing interests, what are some clear takeaways? First, online platforms have immense power and impact on ordinary people, but the prescriptions which are being proposed both in the US and India cater to interests of greater government control. Second, there is a lack of a clear path on regulating online platforms that can account for these disparate harms.
At present, there are ongoing conversations around the regulatory frameworks of competition law, consumer protection or evolving a whole new regulatory paradigm for such large social media entities that emerge from a “duty of care” principle. Third, due to these two significant facts there will be continuing allegations of bias, leaving persons across the political spectrum with a sense of grievance.
This presents continuing opportunities for discretionary action which suffer from legal deficiencies and may even smack of political control.
The solutions may not be easy, but they do merit a few easy prescriptions that need to be based on clear-headed principles that cater to the public interest. These must start with greater transparency which can help policy professionals understand the disparate problems that emerge and move in a comprehensive manner towards developing a regulatory framework that caters to our present needs. While there have been some conversations floated by the Ministry of Electronics and IT to take a relook at the Information Technology Act, 2000, it needs to be accelerated with a view towards serving the long-term interests of individual liberty and innovation rather than of Silicon Valley platforms or any government of the day.
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