By Kate Jones, WPR, Tuesday, June 1, 2021
Around the world these days, social media’s impact on societies is creating understandable tensions. The way in which social media shapes the public conversation has an unpleasant underbelly, exposing and arguably fostering hate and division, while fueling an explosion of objectionable images ranging from child abuse to revenge porn. The risk is that these tensions will become an excuse for restricting freedom of expression, transforming social media from being platforms that enable limitless voices to reach limitless audiences into platforms that allow a few powerful voices to reach huge numbers of people.
In India, a country of over 600 million internet users and the biggest market by user numbers for both Google and Facebook, these tensions are now crystallizing into a battle between the government and social media platforms.
It is galling that the news from India, the largest democracy in the world and traditionally a country of unruly pluralism, is not so different from what’s happening in Russia, where social media platforms are also currently under significant pressure to remove content the government considers illegal. But these are dark days for freedom of expression in India. Human Rights Watch reported that in 2020, journalists were targeted for having criticized the government’s pandemic response. India also imposed the largest number of internet shutdowns globally, with 80 percent of them in Jammu and Kashmir. In September 2020, Amnesty International was forced to cease operations in the country.
Now that same illiberalism is beginning to characterize the Indian government’s treatment of social media. The principal battleground is the government’s attempt to tackle the challenges social media platforms pose to Indian society, as codified in a measure known officially as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The rules are intended to address “disturbing developments” including fake news, distorted images of women and abusive language, as well as crime, terrorism and incitement to disturb public order.
The rules require social media platforms to exercise due diligence processes to ensure they do not host illegal content and allow the government to notify platforms that a specific piece of information is illegal. They also require publishers of news and current affairs to adhere to a code of ethics, to be overseen by the government. What’s more, when necessary to ensure national security or combat crime, social media platforms must enable the government to identify the originators of specified private messages.
The rules have been the subject of widespread criticism both in India and internationally. As regards social media platforms, they raise at least two serious human rights problems.
First, the restrictions on permissible content are broader than the exceptions to freedom of speech allowed in international law and in India’s constitution, and the discretion given to the government to declare information unlawful creates a risk of censorship of acceptable political debate by whichever political party is in power.
Second, the requirement that messaging service providers dismantle their end-to-end encryption on government request in order to identify the original posters of messages may violate the right to privacy.
The rules are also controversial because they seek to regulate not only social media platforms but also digital media. As Indian digital media organizations have written, “For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitutional scheme but at democracy itself.” As a result, Indian digital news outlets, led by The Wire, have begun legal proceedings against the new rules’ application to digital news portals.
And on May 25, WhatsApp initiated its own proceedings, claiming that the breaking of end-to-end encryption is contrary to the right to privacy enshrined in the Indian Constitution and would “effectively mandat[e] a new form of surveillance.” These proceedings place the social media platform in the unusual position of being a plaintiff, rather than a defendant against claims made by users or the government. What’s more, WhatsApp brought its case with the ultimate aim of safeguarding the privacy of its users rather than defending its own corporate interest. It is notable that in the second half of 2020, the Indian government made the second-highest number of requests globally for Facebook user data and that Google reported a significant increase in so-called national security takedown requests by India during 2020.
Ravi Shankar Prasad, India’s electronics and information technology minister, has denounced WhatsApp’s legal action as a “clear act of defiance” and called on the company to work to ensure that both privacy and national security can be protected in parallel. At a political level, the proceedings stand in stark contrast to criticism made in 2020 of Facebook, which owns WhatsApp, for being too accommodating of the Indian government for commercial reasons.
These are dark days for freedom of expression in India.
Under the terms of the new rules, the large social media platforms had until May 25 to appoint and share contact details of representatives in India. These representatives will be responsible for complying with the new rules and responding to grievances, and may face liability for noncompliance. Google has indicated its intention to comply with the rules, while noting, in a nod to transparency, that it will report on any measures it takes to do so. Facebook has also said that it’s aiming to comply. Twitter did not fully meet the deadline, and on May 31, the Delhi high court ordered it to comply in response to a plea by the government, which has warned that noncompliance could lead to loss of status and protection as an intermediary of platform users. On May 27, Twitter announced via a tweetthat it would “strive to comply with applicable law in India” in order to keep its service available, but that it also plans “to advocate for changes to elements of these regulations that inhibit free, open public conversation.”
It remains to be seen both what the Indian courts will make of assertions that the rules are incompatible with constitutional rights and what effect the rules will have on social media in practice.
Beyond this principal battleground, other significant skirmishes are taking place, particularly between the Indian government and Twitter. First, in late 2020, the government sought to restrict how protesters against a proposed agricultural reform law were using social media to organize and spread their cause. The government issued a legally binding order requiring Twitter to remove over 1,100 accounts and posts that were allegedly spreading misinformation about the protests. Twitter complied in part, stressing publicly that it would “continue to advocate for the right of free expression,” earning a rebuke from the Indian government for its approach. Meanwhile, Facebook reported that it restricted access to 878 accounts or posts in response to government directions during the second half of 2020.
Second, the recent spike in COVID-19 cases in India has catalyzed further government requests for takedowns by Facebook and Twitter, with the government claiming that people were misusing social media to foster panic about the pandemic. But observers criticized the government for singling out posts critical of its handling of the pandemic, including some by opposition politicians. Twitter similarly made public statements about the challenges it faces in meeting all the government’s requests, stressing how it is supporting responsible public debate and access to reliable information on COVID, as well as providing financial support for local efforts to counter the recent massive second wave.
Third, a discrete dispute arose last week when Twitter applied a “manipulated media” label to tweets originating from senior figures in the ruling BJP party, who suggested the opposition Congress party was using a “COVID toolkit” to exploit the COVID crisis for political gain. The posts were debunked by Indian fact-checking site Alt News, but the “manipulated media” tag led to the Delhi police visiting Twitter’s offices in New Delhi and Gurgaon, in the neighboring state of Haryana, to serve the head of Twitter India with a notice of inquiry. Although Twitter’s offices were closed—all its employees are currently working from home—the company criticized what it called “intimidation tactics.”
Determining who’s in the right in these disputes is not a simple matter, because the principles at stake are complex. On the one hand, it is each national government’s prerogative to legislate for the public interest and domestic context of its own country. The large social media platforms have not yet proven themselves up to the task of appropriate content monitoring in all the countries of the world. Lack of regulation of social media has led to an environment in which illegal speech—such as hate speech, discrimination, incitement to violence and abuse of children—can flourish.
But experience has shown that giving governments the power to control what is said is incompatible with protecting freedom of speech, as it creates an almost overwhelming risk of censorship and abuse. Instead, the history of media regulation shows that independent oversight combined with responsible behavior by media platforms can curate an environment that is free, diverse and respectful of context, yet not abusive.
The Indian government is right to be concerned about social media’s impact on society. It is also right to expect social media platforms to mitigate the harms perpetuated through them and to set parameters within which those platforms should operate. Meanwhile, private companies—also rightly—have their own commercial interests at heart, and they have to walk a tightrope between adherence to their principles and potential exclusion from lucrative markets. Even if, for the sake of argument, it is true that today’s leaders of social media platforms are apolitical, the same cannot be assumed for those of tomorrow. And when social media platforms are caught in the crossfire of a battle between ruling and opposition political parties, any action they take will be seen as partisan.
The solution lies not in government control of content, but in creating obligations of process for social media. Regulations should require social media platforms to adhere to high, culturally sensitive standards of moderation of both content and user behavior, and to ensure that the platforms’ own algorithms and operating processes do not lend themselves to corruption or manipulation. The standards imposed by governments on platforms must be consistent with international human rights law and address all aspects of platform practice, and there must be independent oversight of and accountability for their implementation.
The international human rights community ought to be devising standards that generate these obligations of process, while scrupulously avoiding statements that appear to endorse government control of content. In the absence of international standards, governments, social media platforms and civil society should now be working together to devise a similar roadmap, not only in India but around the world.
Kate Jones is an associate fellow with the International Law Program at Chatham House, a senior associate with Oxford Information Labs, and an associate of the Oxford Human Rights Hub. She previously spent many years as a lawyer and diplomat with the U.K. Foreign and Commonwealth Office, serving in London, Geneva and Strasbourg. She has also directed Oxford University’s Diplomatic Studies Program. Follow her on Twitter@KateJones77.