In December 2004, the Delhi Police arrested Avnish Bajaj, the CEO of Baazee.com, because someone in Kharagpur, West Bengal, tried to sell through the website video copies of two Delhi-based students having sex. While the court granted bail to Bajaj in a few days, the case itself dragged on till May 2008 when he was finally acquitted of all charges. The case presented a dilemma for our government and courts—if a user posts something illegal online, should those who run the platform where it was posted be held responsible for it? Eventually, the court decided that they should not, and this has become common practice in Indian law.
After this judgment, the Indian government codified the waiver through new rules under the IT Act. It has proven to be a boon for the growth of the internet in the country by allowing social media companies to acquire users rapidly, while not having to worry about the legal liability arising from the content they post. It has allowed the internet to grow as a free space, where citizens can express themselves without having to worry about either governments or the company censoring their views. Of course, if users post something illegal, they can still be punished under laws that already exist in the country. The protections prevent companies from proactively silencing users.
This arrangement is now coming under stress due to the rise in hate speech and misinformation on social media. Both governments and civil society believe that social media companies have not done enough to keep the internet safe for people. For example, parliamentary panels have summoned social media companies and are evaluating their role in inciting violence in India. Governments are calling for the companies to do more, including threats to remove the legal immunity and ‘safe harbour’ that they have hitherto enjoyed. These issues culminated in new rules framed for online intermediaries in February 2021.
The new rules augmented existing government control over online platforms. Social media companies, a term left vague and expansive, need to take down content within 36 hours of receiving a government notice. They also need to appoint a nodal person for 24×7 coordination with law enforcement officials and hand over any data that they are asked for within 72 hours. The rules, however, go far beyond just social media. The central government can ask ‘curated content platforms’ such as Netflix and Hulu to take down or modify content. Ditto for digital news platforms. Through these rules, the government is empowered not only to restrict fake or hateful content but also regulate almost all kinds of content that are shared online.
Mishi Choudhary, who is the legal director of the Software Freedom Law Centre in New York, argues that in the battle between governments and social media giants, there is only one loser—the user. No matter how much the companies spend on lawyers and PR armies, she believes that they always fold when presented with a final offer. But the companies do not lose their own terrain; instead, they give up users’ rights at the altar of business continuity. In the end, these messy negotiations transfer power away from the user and divide it between governments and platforms.
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For example, the 2021 intermediary rules could have an unexpected impact on free speech in the country through either of two mechanisms. First, internet companies might prefer caution to risk, and may themselves start removing user posts overzealously to avoid getting into legal trouble. In response to the rules, many streaming platforms reportedly asked content creators to avoid depicting social and political realities in their shows. They also cancelled many hitherto popular shows, allegedly because the content was too risky. Self-censorship will be even more deleterious for social media companies, as they deal with millions of user-generated pieces of content every day. They might deploy AI-based systems to screen content at the required scale.
However, such automated measures are known to be inaccurate.
Moreover, if social media firms start fearing legal liability, they are likely to take down content selectively. For example, news reports that appeared in the Wall Street Journal in August 2020 alleged that Facebook’s leadership team in India allowed certain members of the ruling party to continue to be on the platform, despite violating its hate speech rules. Social media platforms may not turn such a generous blind eye to content posted by leaders of other political parties.
The other and potentially more powerful mechanism through which the new rules compromise freedom of speech is by strengthening the government’s ability to censor content online. Balancing free speech with other societal interests like safety or public order is highly subjective. Therefore, most countries have left such nuanced decisions to the judiciary. This helps maintain the ‘independent oversight’ principle of good institutions. India’s rules, however, allow governments to unilaterally ask social media platforms to take down content. Moreover, the government committee that monitors streaming services and digital news consists only of government bureaucrats, has no safeguards in its appointment and removal and can only make recommendations to the government. Therefore, it is a committee that has no real powers and is completely under the thumb of the central government.
Free speech is the very foundation of a democracy, and the internet has today become the fountainhead of new ideas. A good institutional architecture would have recognised the government’s right (and duty) to keep us safe online but would have put in place a tightly written law, transparent enforcement and independent oversight to avoid unnecessary transgressions into our free speech. Such a regime would have mandated that any blocking or take-down order is issued only after judicial scrutiny.
If judicial scrutiny seems excessive, it could have set up regulators that would be independent of the government and include primarily retired judges. A good institutional design would also have provided a mechanism for those of us who are affected to challenge the order in court. It would have required the government to place any takedown mandate in the public, for civil society and others to scrutinise it. The government’s ability to block the free flow of thoughts is a nuclear option that it can choose to exercise over democracy itself. Therefore, such an option must be treated with caution and the safeguards it deserves.
Excerpted with permission of Bloomsbury India from Caged Tiger: How Too Much Government is Holding Indians Back by Subhashish Bhadra (Hardback Rs. 799; 272pp).