The Supreme Court recently expressed the need to regulate social media to curb fake news, defamation and trolling. It also asked the Union government to come up with guidelines to prevent misuse of social media while protecting users’ privacy in three weeks’ time.
The apex court made these statements while hearing a transfer petition by Facebook which has asked for petitions on regulation of social media filed in Madras, Bombay and Madhya Pradesh High Courts on similar issues to be transferred to the SC so that the scope can be expanded.
In India, social media platforms already come under the purview of the Information Technology (IT) Act, the ‘intermediaries guidelines’ that were notified under the IT Act in 2011 and the Indian Penal Code.
With the SC's directive to the Indian government for further regulation of social media, TNM asked experts what were the challenges associated with the same.
Existing regulations and misuse
Executive Director of the Internet Freedom Foundation (which is also an intervenor in the above case in SC) and lawyer Apar Gupta points out that 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.
There are also reporting mechanisms on these platforms, where they exercise discretion to ascertain whether a reported post is violating community guidelines and needs to be taken down. These, however, have been reported to be arbitrary – many posts on body positivity and menstruation, for instance, have been taken down in the past while other explicit imagery continues to be allowed.
“But it’s necessary to have minimum legal standards that need to be fulfilled to compel such take-downs on social media. If platforms had to take down posts based on individual complaints, it could result in many frivolous take-downs. Free speech should be the norm, and removal of content, the exception,” Apar argues.
IT consultant Kiran Chandra says that many of the existing regulations themselves are “dangerously close to censorship and may have a chilling effect on freedom of speech, which is why cases are being fought on those in courts.”
Even under existing regulations, there is scope for misuse - which has also been documented in the past - to curb dissent.
“One of the key problems of a lot of regulatory measures is the vagueness of language which is exploited by state agencies to behave in a repressive way,” Kiran says. “Any regulation has to be clear and concrete so that there is no scope for overreach."
Much of fake news is driven by politics
Fake news isn't exactly new, but its proliferation and extent have expanded manifold with social media.
Srinivas Kodali, an independent security researcher, says that it is not as though governments do not know where a good portion of fake news is coming from. “Most political parties have IT cells that dedicatedly work on creating and spreading fake news. But what is the Election Commission or anyone else doing to stop that?” he questions.
Kiran points out that this machinery exists with a view to gain electoral dividends. “There can be no countering fake news without taking on these structures and the political forces behind them,” he says.
He adds that social media giants also need to take responsibility. “Currently, considering the role social media companies play in the society, they are doing almost nothing [about fake news]. In fact, virality - and a lot of fake news tends to be viral - is the basis of the business model of many social media companies, including Facebook, and WhatsApp, which it owns. At the very least, these companies need to dedicate far more resources, and must provide more transparency into their functioning if any dent has to be made in countering fake news.”
Kiran also says that there is a need to support websites that bust fake news, and make people more aware of the need to verify news.
Defamation and online harassment
Experts say that when it comes to the SC’s observation that there should be redressal mechanisms for someone who has been ‘defamed’ on social media, the recourse is pretty clear-cut.
Pranesh Prakash, a fellow at the Centre for Internet and Society, says, “If it concerns defamation, it is very likely that the victim knows where the defamatory post has come from. Even if it is not an original message, the defamation law does not require you to find out the origin of such a message. Anyone who has put it, forwarded it, is liable.”
That being said, it is the social media giants that need to pick up the slack when it comes to dealing with targeted harassment and online bullying.
It has been reported earlier that Facebook, due to its lack of understanding of the Indian context as well as diversity, often fails in effectively removing hate speech from the platform in India. Facebook's community guidelines are unavailable in several Indian languages too.
Kiran says that while there already exist legal provisions for dealing with offensive speech, the problem is that they are either misused or underused. “Critics of the government get hit with these cases unreasonably while many who engage in hate speech and abuse are followed by the most powerful people in the country. Here again, social media firms need to massively increase the resources they spend on weeding out such content.”
Privacy and surveillance concerns
Any conversation on additional regulation of social media brings up concerns about privacy and surveillance.
Apar says if regulators want easy access to user information for curbing misuse, spread of fake news and the like, it would require online platforms to modify their products to increase surveillance - to have exact details about who said what, when and about whom. “This is why it’s important for legal standards and conditions for accessing user information to be followed. Government also needs to become more accountable on what information on users they are demanding from social media companies.”
Kiran cautions that “any bid at regulating expression online has to be proportional and concrete with adequate redressal mechanisms and without any blanket provisions.”
“We need strong data protection and privacy laws which restrict the scope of these companies and reduce their footprint online,” he adds, referring, for instance to Facebook's monopoly - the company also owns Instagram. “Similarly, the role they play in elections and political processes as a whole, needs to be checked.”
Srinivas points out that ultimately, social media is a reflection of what is happening in the society: “If there is no rule of law offline, it won’t be there online.”