Social media, free expression and competition law

These last few days the role of social media platforms, in particular Twitter, has been the subject of intense scrutiny owing to certain controversial hashtags/trends finding traction in the backdrop of the farmers’ agitation. I don’t intend to comment on the legality or propriety of any particular trend; however, I am certainly interested in understanding the role of such platforms which ostensibly empower the voice of the common person and widen the circle of participation in public discourse. In a few pieces under this column, I have written in some detail on the need for greater consultation with the public in matters of law and policy, and I see no reason to depart from that position even in the context of the farm laws which find themselves at the heart of a storm in Delhi.

The situs of the agitation, as opposed to the issue, perhaps explains the kind of attention that is being showered on it. The absence of similar agitations in other parts of the country for the most part doesn’t seem to matter much because other parts of the country are not Delhi, and if such agitations were limited to other parts of the country, it is anybody’s guess if they would have received similar attention. Coming back to the discussion at hand, social media platforms have certainly made it possible for several causes to find greater eyeballs than they otherwise would have. Prior to the advent of social media, mainstream print and electronic media’s monopoly over news and opinion was unparalleled, and the fact that access to such platforms wasn’t within the reach of the average citizen is undeniable. Therefore, social media has certainly democratized access to public megaphones which, notwithstanding the noise they generate, are necessary particularly in Bharat given its sheer diversity.

Having said that, the time has come to examine certain assumptions we take for granted in the context of social media. Previously, presumption of neutrality was imputed to both print and electronic media which has been severely undermined not just prospectively but also retrospectively. In other words, I am not sure if the media was ever neutral. The lack of options on the political front gave the impression of political stability, which spilt over even on the media front. However, with emergence of viable alternative political options, the perception of neutrality too has worn off. Dare I say that social media platforms are witnessing a similar phase since people are no more willing to put stock in their claim of neutrality. The claim of being mere “intermediaries” doesn’t find as many enthusiastic takers as it did, say a decade ago.

Given that some of these platforms virtually enjoy monopolies in their respective spaces/relevant markets with no viable substitutes, it may be possible to treat them as essential facilities which have acquired a position of dominance. Therefore, they attract the attendant obligations under the Competition Act, the foremost and most obvious of which is a bar against abuse of dominant position. Sure, such platforms may claim that they thrive on User Generated Content (UGC) and unlike mainstream media, do not exercise any form of editorial control over with the content prior to its transmission/publication/dissemination. This may be true only to the limited extent of the initial publication of the content since the larger question is of the treatment of the content post publication by the platforms. In other words, to assume that editorial control can be exercised only prior to the publication of content may not be valid given the nature of such platforms and their exercise of ex post facto editorial control which is typically provided for and codified in their privacy policy and terms of use.

Since individuals may not have the bargaining power needed to push back against the inconsistency of such platforms and a standard civil action for contractual violation of the terms of use may not be the most effective and expeditious of remedies, to my mind, the Competition Act seems like an option worth considering. I say this in light of the inquisitorial powers the Act vests in the Competition Commission of India (CCI) and the broad in rem nature of the enquiry envisaged the Act. Apart from the nature of the proceeding, the sheer sweep of reliefs that may be granted by the CCI, which include compelling a platform to reshape its practices in accordance with the framework under the Act, make this remedy all the more attractive. And the icing on the cake is the fact that the Act enables any person to initiate a proceeding. In other words, one need not be strictly an aggrieved party to set the ball rolling against a social media platform either for anti-competitive practices or for abuse of its dominant position, provided of course it enjoys a dominant position in the relevant market. The Act goes a step further since it envisages suo motu initiation of proceedings by the CCI itself without the need for a prime mover outside of the CCI.

May be the time has come to lay down a few behavioural standards for social media platforms so that public discourse is not subverted in the name of free speech through promotion of select strains of thought and speech, which undermines the fundamental expectation of diversity in a democracy. Or at least, such platforms must wear their leanings on their sleeve so as to enable the consumer to make an informed choice in what is supposed to be a free market of ideas.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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