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In India & Europe, Can New Rules Make Twitter & Other Social Media Responsible?

Intermediaries have reached a stage where regulatory oversight needs to ensure diligence alongside safe harbour.

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Last week, three major actions have happened concerning cyberspace and more around social media regulations. The Indian government notified the amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, that would facilitate the setting up of Grievance Appellate Committee(s) (GAC) for oversight on the social media content moderation and responses by the intermediaries. Elon Musk finally acquired Twitter and announced a council for content moderation and the European Parliament and the Council of Europe published the Digital Services Act (DSA) that laid down the regulations for responsible and diligent behaviour by providers of intermediary services among other things.

While they might be unrelated in terms of their notification, the fact that they touch on the same subject is pertinent.

Over the last couple of years, social media as one of the most prominent intermediaries and its nuances, have been a discussion point across the stakeholders—be it the users, law enforcement or regulators.
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Why Social Media Regulation Is the Need of the Hour

The global public space status that platforms like Twitter, Facebook and others have acquired with their proliferation supported by emerging technological possibilities, has created many issues of governance and societal concerns. The enhanced prospects of expression and the freedom exercised, have been of considerable attention across jurisdictions professing democracy for decades.

Along with that, the concerns around privacy that technology has exposed for users, the possibilities of artificial intelligence and deep learning fostering profiling at levels hitherto unknown, have soared. So have the debate around the balance between privacy and security or even regulation.

The principle of safe harbour which social media platforms in most jurisdictions have enjoyed so far, as far as the facilitation of content through their medium is concerned, seems inadequate to address many of the issues that emerge with the usage of those medium.

In many instances, these platforms have started becoming the dispenser of justice, exceeding their roles as intermediaries. A few even brazened out to imply that their terms and conditions of usage were above sovereign governments' decisions and directions.
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What Intermediary Role Expansion Means for Cyberspace

That’s exactly the situation why the union government in India decided to bring in the Intermediary Guidelines rules in February 2021 which is being implemented from May 2001. While the overarching Information Technology Amendment Act 2008 (IT Act) remained the basic law, the guidelines were built on the rules for its implementation whereby the primary consideration was ensuring ‘more responsibility’ from the intermediaries.

These enhanced responsibilities meant that the platforms had to implement better due diligence, conform to the directions of judicial entities, law enforcement and respond to the users' grievances. To the credit of the government, a classification was also done to define significant social media intermediaries as those above a certain threshold of users (above 5 million) so that greater responsibility was applied.

The DSA of the European Parliament has almost taken the same position in terms of greater responsibility and due diligence and like India, it has also classified a category of enhanced intermediaries (above 45 million users across Europe). Even Australia has exercised a similar position for greater responsibility of the social media platforms.

It is clear that while freedom of speech remains the guiding principle in all these jurisdictions, the need for platforms facilitating the most levels of conversations, exercising greater responsibility is a step that is borne out of experience and the wider and emerging possibilities of technology, often resulting in issues of governance.
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Social Media: Self-Regulation Or Govt Mandate?

The question that arises is how does this get implemented. Can the platforms be left to themselves to moderate as per their terms and conditions or they have to be clearly guided by sovereign and cultural considerations? Clearly, it has to be the latter and so, the next question that arises is what is the best approach.

Should the oversight mechanism remain with the platform as a first step to be escalated to a higher wider body within the country of jurisdiction so that sovereignty remains the clear yardstick and then move to the law enforcement and judicial recourse or one of the first or second steps eliminated.  Also, what would be the guiding consideration of the constitution of the grievance and oversight committee as both levels?

Clearly, the approach of Elon Musk and the announcement of the Indian government’s appellate approach needs to factor this question. A decade back, the best approach would have been self-regulation as the platforms enjoyed safe harbour protection. However as the space has expanded in enormity on many fronts including the large number of users as well as misuse of the medium where people abuse each other or use the medium for provocation, independent oversight function with active participation from a sovereign government with all check and balances could be the most optimal approach.

In India, the rules associated with the implementation of blocking of content as well as monitoring and interception of content have functioned with a committee drawn from different ministries for more than a decade to decide on the steps taken and have by and large been non controversial. In the current case of GAC, along with government representatives, individuals with knowledge of the sector as well as from the technical background will be an approach to start with.
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These are times when the stakeholders realise that intermediaries have reached a stage where regulatory oversight on them needs to ensure the responsibility and better diligence while enjoying the advantages of safe harbour.

While allowing them to be the facilitator of content, it has to be ensured that the regulations of the content that flows through their networks do not become their function so as to ensure complete fairness.

Whether in Europe where the laws will apply in a few weeks from now as well as India, the guiding principle is to keep the content free and legally palatable. As Elon Musk takes Twitter through the next few months, it will also be imperative to see that the platform remains fair and oversight is dealt with fairly by a more independent body. 

(Subimal Bhattacharjee is a commentator on cyber and security issues around Northeast India. He can be reached @subimal on Twitter. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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