US President Donald Trump’s executive order on online censorship, which followed his spat with Twitter for fact-checking his claim on voter fraud, may expedite a review of rules governing social media firms in India.
The order puts the spotlight back on India where the government has been considering regulating social media platforms to curb fake news and hate speeches. The executive order makes American tech platforms more vulnerable to regulation in other jurisdictions, said Vivan Sharan, a tech policy expert.
“The safe harbour available to social media in India may also be narrowed. Second, it necessitates a larger conversation between tech platforms on their global standards for online speech. If social media is to be treated as a public square, as noted in the executive order, calls for local standards will follow,” said Sharan.
The need for greater regulation of social media companies in India, however, stems from concerns that they are not doing enough to curb the misuse of their platforms. Short-video app TikTok was accused of promoting pornography among teens and temporarily banned from app stores following a Madras high court order. WhatsApp was slammed for failing to curb fake messages that led to several mob lynchings in 2018, as well as for the Pegasus spyware attack. Twitter has been criticized over the spread of hate speech.
“In India, which is the world’s biggest democracy, I see ignorance among key authorities, which has created a mess when it comes to effectively handling social media platforms. The lack of a single governing authority has added to social media woes,” said Virag Gupta, a Supreme Court lawyer.
Experts suggest regulation may also be needed because firms such as Google, Facebook and Twitter have morphed into media companies, but without any rules governing them that apply to traditional media. Advertising veteran Martin Sorrell has said the tech firms should take responsibility for content. In India, experts have long argued that they should be held to account for infringements under the law of the land in the same way that media companies, publishers, editors, journalists and ordinary citizens are.
Social media in India is governed under the Information Technology Act and the laws are in a relatively nascent phase, said Harsh Walia, partner, Khaitan and Co. “Germany, Singapore and Australia enacted legislation regarding diverse aspects of social media regulation. That being said, the demand for regulating social media firms here is picking up.”
The IT ministry is drafting guidelines to regulate social media. Vrinda Bhandari, a Supreme Court advocate, said that currently India has protections for ‘intermediaries’—social media companies—under section 79 of the IT Act. Under the safe harbour provisions, intermediaries are granted conditional immunity from content posted by users.
“However, the government has proposed amending the guidelines through the draft IT Intermediary Guidelines (Amendment) Rules, 2018, where intermediaries must deploy technology-based automated tools to filter ‘unlawful content’. These rules are not yet notified,” she said.
Salman Waris, managing partner, TechLegis Advocates & Solicitors said Indian law has been playing catchup, while European countries have imposed huge fines on some social media firms for violations.
In the wake of the Trump order, lawyers here will find it difficult to justify the role of social media as platforms and not publishers, said Chandrima Mitra, partner DSK Legal, an Indian law firm. The moment platforms look into censoring content, they are no longer neutral platforms.
Twitter Public Policy has called Trump’s executive order a “reactionary and politicized approach to a landmark law”.