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Independent regulator needed to regulate content takedown on social media NewsFunda

When does one draw the legal line between free speech and breaking the law on social media? This issue was at the forefront when the Indian government asked Twitter to remove nearly 1200 accounts for sharing provocative content on farmers’ protests from their

platform

. The Times of India’s Vivekanand Ojha and Pradeep Tripathi spoke to Sanjay Hegde, senior advocate at the

Supreme Court of India

on the issue of free speech on social media and how

governments

and social media companies differ in their outlook on this issue.

Do Indian laws allow the government to order social media firms to take down specific content that is deemed dangerous by the government?

Yes, of course. All laws across the world have these kinds of provisions, where if there is some particular content which has consequences of a dangerous nature, law enforcement can ask for that content can be taken down. There are various provisions in various parts of the world. There are societies and countries which are very solicitous about the right to free speech on one hand while there are some countries which do not recognize free speech at all. And then there are others, in-between like our country, where governments think that they decide how free speech should be.’

What are the options available to social media firms if they don’t want to comply with the government order?

If the government order is not something to the liking of the social media company, they have the same remedy as anybody else. If I don’t like something that the government orders, I can challenge it in court, especially constitutional courts.

Under the current laws, can the government proceed with coercive measures like arrest of top officials and banning the app altogether?

Government still retains the power to ban apps. It is a different question as to whether that ban will be challenged or not. You will recollect that the Govt banned TikTok and the company has not challenged it in a court. As far as coercive measures are concerned, what can the government do? Government can’t just march in and say ok you didn’t do it, so I am putting you in jail as you are the managing director. There will be a legal process. The government will no doubt file a case, criminal complaint or lodge an

FIR

at a police station. Then there would have to be an investigation and in the course of the investigation, if the investigating officer were to decide to arrest somebody then that arrest could then be challenged in a court.

The government claimed Twitter treated protesters at Capitol Hill differently from those who stormed Red Fort on Republic Day. What is your reaction?

Surely, the government does not think that those who are protesting are Donald

Trump

supporters? There was a specific situation on Capitol Hill, which was largely due to the speech of Trump, therefore at that state, Twitter determined that it was too dangerous to let Mr Trump on their platform. I don’t think that the events in Delhi and Capitol Hill, and the personalities concerned are comparable. This is loose talk on social media which is now finding its way into the government’s statement.

Twitter has partially complied with the government order but has refused to ban some handles that belong to news media, journalists and activists. Can this be justified in legal terms?

Twitter is a company that has corporatized free speech. Twitter, Facebook, Google are important platforms on which people exercise their right of free speech, but they are privately owned. So, while they control access to the marketplace of ideas and the public square, they also have a responsibility to defend free speech on their public squares. Some of their actions may be seen as standing up to government orders. Of course, I do not think that Twitter or the government should be able to do such things unilaterally. There may have to be some other mechanism.

If the government says that you did not obey my orders, therefore I am shutting you down, then again that could be challenged by Twitter in a court and they could give their justification. Government’s powers are normally to ask for specific content to be taken off. Supposing there is a tweet or a Facebook post which has a video that is objectionable, taking that one down is one thing. Here the government order which is not available to the public at large, seems to imply wholesale taking down and de-platforming of people. That is a much more radical thing.

Don’t you think there should be self-regulation for social media platforms like news media?

Corporate houses say that they have their self-regulating mechanism, but they don’t seem to be effective. We have people who still keep going on and these are people with large following, who say objectionable things, and nothing ever happens to those accounts. Whereas some odd posts or some odd quotation is misinterpreted, and the whole account goes down. So, I don’t think there is anything in terms of a coherent, stated policy which is applied uniformly across the board.

Does the govt follow a transparent mechanism to decide on objectionable content it wants banned?

I have been advocating for a long time that there should be somebody independent of the government and the social media firms to regulate content takedown. There may be times when content needs to be urgently taken down. Governments may order it and social media firms may do it. But thereafter there must be a mechanism to reinstate the content if those orders are wrong. And those must be regulated by outside, independent regulators. We can’t trust the government alone, nor can we trust the social media companies. And not every matter can go to the regular courts either. It may be better that there are independent regulators of people who know the technology space, and who know the law.

How do you summarise this spat between the government and Twitter?

There was no spat earlier because Twitter was obeying anything and everything from the government. It also seems that there was a large amount of revenue considerations also involved on Twitter’s part. However, having set the tone in the US, especially when it banned certain accounts including that of Trump, Twitter seems to be now taking some part of the responsibility of defending free speech. That itself has angered the government which seems to think that free speech can only be to the extent allowed by them, and it should not be for a private corporation to decide as to what speech should be allowed and what speech should not. I do see various legal issues arising out of this spat heading to court, one way or the other.

Do you think Twitter has different policies for different countries. Is this fair on the part of Twitter?

They are trying to comply to the extent they can with Indian laws in India and with their own company standards in the US. So, it is a very careful game of rendering to Caesar what is Caesar. But as they say, no man can serve two masters. You either have a very transparent standard across the platform irrespective of geography where you will stand up for free speech or you have a very convenient standard that wherever there is a government which gets too hot for them, they will succumb. I think Twitter’s values as a corporation are also in question here.

News is auto-aggregated by a computer program and has not been created or edited by Newsfunda

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