Ubi Jus Ibi Remedium! For every wrong, law provides for a remedy. Except on the Internet. What began as innovation in the 1990s has now become a world stage for people of all kinds — suppressed populations under dictators, revolutionaries and marginalised groups, to paedophiles and terror propagandists, scamsters and demagogues. Free speech has become ‘free for all’, while providing a voice to the voiceless and support to the hapless, social media platforms have become powerful instruments of social change.
It is time to examine if an operative paradigm of immunity from liability for social media platforms has actually led to a freer, safer and more just world, or has created the potential for immense harm and destabilisation of societies worldwide. We examine 10 questions from a legal and rights perspective.
Is social media a public space?
Even for public spaces, there are rules for protest. Any action here should confirm to be in consonance with reasonable restrictions and constitutional limitations; in interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence. Anything which violates these offline, is also an infringement when committed online.
Who is a publisher?
Publishers of traditional media, now even in electronic form, have always been held responsible for content which is defamatory, incites violence or contains hate speech. Social media platforms face absolutely no liability and do not take any responsibility, in contrast with the editorial responsibility of traditional media, while performing similar roles. Paradoxically, these commercial platforms still engage in content curation, filtering and selection, takedown and moderation. This creates an anomalous situation where they exercise rights without any legal safeguards or enablements.
Online platforms as censors
Censor means to prevent someone from speaking, to suppress something from being displayed. An agency which reviews content and suppresses material for a specific purpose, e.g. objectionable or offensive material, is called as exercising the act of censorship. In the case of online social media platforms, the task of deciding what to censor, and how, has largely fallen to the handful of corporations that control the platforms on which much of the world now communicates.
They are acting as gatekeepers to free speech, while claiming immunity from any responsibility as a publisher of information. The lack of transparency in the algorithms and decisions of content moderation, takedown and filtering without any judicial oversight is also a cause for concern.
Breach of privacy and user tracking
Right to be forgotten is an integral part of right to privacy. User’s fundamental right to privacy is breached by the platforms by taking blanket consent by the user to collect, share and process by themselves and third parties. It is essential that the individual knows as to what the data is being used for with the ability to correct and amend it. The hallmark of freedom in a democracy is having the autonomy and control over our lives which becomes impossible, if decisions are made in secret without our awareness or participation.
Data sharing with governments
Criminal and illegal activity on social media platforms is increasing exponentially and governments across the world are struggling to fight child porn, fake news, terrorism, racism, anti-national content, fraud by personation, etc. There is a need of enabling technology-based automated tools to identify, trace and remove the unlawful and harmful content with governments without court order but following the due process. The freedom of speech versus threat to individual rights and nation’s security and sovereignty, needs to be balanced through a standard procedure-driven mechanism following due process of law. This wouldn’t impede free speech or right to privacy but instead help protect the very foundations of democracy.
Neutrality — political ads
In the US Senate’s Facebook hearing, when asked if Facebook was responsible for the content posted, Mark Zukerberg said the company was “responsible for the content” on its platform. They admit to closing pages and groups that support certain political ideologies. These platforms also accept and run political advertising, and have allowed users’ data to be harvested and used for political purposes, while profiteering from such exercises. Treating them as neutral interpreters is inherently flawed.
Encryption
Encryption is one of the tools to ensure that the users can communicate safely or anonymously between one another. However, it cannot be considered as the only tool to protect users from harm, it also degrades and limits the ability to enforce our criminal laws, therefore some balancing of priorities is needed. A method to ensure responsible posting and traceability can be KYC, which is essentially knowing who the user is on the other side of the screen, it will prevent things like bots, multiple fake accounts, and misrepresentation of who the person really is.
Vicarious liability
Even if one accepts a broad immunity model which has resulted from Section 230C of the CDA, the general principles of natural justice and Tort law cannot be taken away. Defamation is a strict liability offence, where mens rea is not needed. Broadcasting on social media squarely fits into the definition of publishing, hence an anomalous situation is created wherein the same act carries punishment if performed on other or traditional media. Social media platforms exercise a great degree of control on what is published on their sites, they also derive the financial benefit from the activities of the users. This is created a legal paradox where the victim is left with no remedy despite significant contributory negligence on the part of these platforms. By no stretch of logic can one imagine how the concept of vicarious liability does not apply in this case.
Duty to care
In any other industry which deals with the public at large, having the potential of affecting people’s rights adversely, there is an implied duty to care. Notably In 2000, the European Union (EU) passed the “Electronic Commerce Directive”, which creates a duty of care for ISPs — that they should take down tortious materials upon notice.
National sovereignty
The allocation of risk has to be proportional to the enormity of harm possible. Today these platforms virtually have a free pass to ignore illegal activities, to deliberately repost illegal material, and to solicit unlawful activities while ensuring that abusers cannot be identified often immunising providers from activities that extend beyond Internet speech, while creating hurdles in the lawful exercise of investigation by the state into patently criminal acts. Constitutionally, any restrictions to right to free speech can only be imposed by the state, that too for lawful purposes in a lawful manner.
These supranational entities have walked into the shoes of the state, performing these actions with no legal provisions and no accountability to anyone. The questions asked here offer no panacea for fixing societal problems on online platforms, but it is time to ensure that the Internet is not a rule-free space. Free speech must not crush the vulnerable and these rights must not be used as a veil to manipulate people with emotionally charged, false claims, or weaponise information dissemination for political ends. As a bottom line, free speech and human rights must be protected at all costs.
The state cannot abandon its responsibility to protect its citizen. There are various legal developments like Germany’s Network Enforcement Act 2018, or NetzDG law, wherein online platforms face fines of up to €50 million for systemic failure to delete illegal content. There are similar movements in the US, Australia and elsewhere. The Indian government is revising the intermediary guidelines that seek to make social media companies more responsible for content on their platforms. It is time that a fine balance is established between the rights of individuals, mediated by these supranational business interests and simultaneously preventing state overreach, while preserving incentives for innovation, which is the real-life blood of the Internet, tough call.
Brijesh Singh is Inspector General of Police, Maharashtra, and Khushbu Jain is Advocate in the Supreme Court. Views are personal.