Context: With the spotlight on social media regulations across the globe, there is a need to discuss at length the need to create an evidence based, proportionate and targeted regulation.
Need to regulate social media platforms:
- There is undoubtedly a need to regulate social media platforms in some way given the power of these platforms, the increasingly important role that they play in society, and the harms that can occur in the digital ecosystem.
- Jurisdictions around the world are trying to develop methods to deal with new problems posed by technologies.
- Europe is one of the leading jurisdictions in this respect, they have recently put in place the General Data Protection Regulation, which sets a fairly high standard for data protection.
- In India, IT Act is nearly 20 years old and is arguably no longer sufficient to deal with the present digital ecosystem, whether it is in terms of
- the scope and nature of offences in the law,
- the provisions permitting surveillance and censorship by the State or
- even in terms of sections such as those pertaining to intermediary liability.
India’s draft social media guidelines:
Source: The Economic Times
- The government had faced significant pushback from civil society and industry when these guidelines were released for public consultation.
- Target certain social media companies: One of the primary problems with the draft Rules is that while they are intended to target certain specific types of social media companies.
- However, they apply broadly to all intermediaries - ranging from social media companies to telecom service providers and content delivery networks.
- Putting in place similar obligations on all intermediaries makes little sense.
- Against the existing ruling of the Supreme Court in Shreya Singhal: The Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
- Provisions for intermediaries: The provisions obliging intermediaries to use automated tools to filter content and the obligation to trace and identify users are particularly problematic.
- These seek to implement substantive obligations which are not contemplated under the IT Act itself, and which could seriously affect civil liberties (speech and privacy rights in particular).
- Excessive regulation could certainly lead to over-censorship: This could occur through direct censorship by the government or indeed if you remove safe harbour protections altogether, as this would give companies an incentive to censor content so as to avoid lawsuits.
- Section 79 of the IT Act does not require social media platforms to take responsibility for third party content shared on their platforms.
- Changing this system to mandate content removal and censorship by intermediaries themselves - would be unfair and disproportionate.
- The Communications Decency Act in the US establishes a self-regulatory system for platforms. Accordingly, platforms are supposed to police the content shared on their platforms – though they continue not to be responsible for any content shared by third parties.
- Consistency, transparency and accountability of platforms in implementing self-regulatory processes to moderate content.
- Over the last few years, there have been numerous cases of arbitrary or inconsistent censorship by many of the biggest platforms.
- Due to the global pressure, platforms like Facebook have begun the process of establishing an oversight board which will independently review content moderation decisions.
- This is an interesting attempt to avoid excessive state-regulation, and something that is worth keeping an eye on going ahead.
- Structural issues: As far as the platform economy is concerned, some of the biggest problems include: The centralisation of power in the hands of a few technology companies, caused by a number of factors ranging from network effects to the economies of scale in processing data.
- Liability of intermediaries based on functions: Intermediaries which by definition refers to all the mediating entities that bring us the Internet, ranging from cyber cafes to social media platforms should continue to face liability based on their specific functionality and the role that they play in the digital ecosystem.
- The current law, which only casts obligations on them if they play an active part in the commission of an offence, should stay in place.
- Not giving complete freedom platforms to do as they wish, particularly given the structural problems in the digital economy.
- Putting in place relevant norms to deal with broader issues such as privacy and competition law, as far as content moderation practices go, it may be useful to think about putting in place procedural norms for platforms to follow.
- Knowing the purpose of regulation: The key is to figure out what exactly we want to achieve through regulation, what is the specific problem or market failure you are targeting.
- Evidence based, proportionate and targeted regulation is the need of the hour.
The Internet is no longer as “democratic", given the monopolies that many platforms enjoy and the consequent control over numerous aspects of our lives. Most technology platforms are built on surveillance based models.
There is the need to properly figure out ways to address these issues given our addiction to free content and given that privacy harms can often be amorphous or long-term.
Existing laws regulating social media platforms
- ‘Intermediaries guidelines’ under the purview of the Information Technology (IT) Act (notified under the IT Act in 2011 )and the Indian Penal Code regulates social media platforms in India.
- Under existing laws, social media channels are already required to take down content if they are directed to do so by a court or law enforcement.
- Legal backing for censorship in India: Section 69A of the Information Technology Act, 2000 mentions that the Central Government or an officer authorized by it may block public access to information on a computer resource, by directing any agency of government or intermediary.
Image Source: Mint