Context

• Recently Facebook, one of the social media giant set up the Oversight Board, an independent body, which scrutinizes its ‘content moderation’ practices.

What are the IT rules of 2021?

• Regulating social media intermediaries (SMIs): World over, governments are grappling with the issue of regulating social media intermediaries (SMIs).
• Addressing the issues of SMI controlling the free speech: Given the multitudinous nature of the problem the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance it is important for governments to update their regulatory framework to face emergent challenges.
• Placing obligations on SMI: In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021 that were primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.

What are the recent amendments?

• Draft amendments in June 2022, the stated objectives of the amendments were threefold.

1. Protecting the constitutional rights: There was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms,
2. Grievance redressal: To strengthen the grievance redressal framework in the Rules,
3. To avoid the dominance: That compliance with these should not impact early-stage Indian start-ups.

• This translated into a set of proposed amendments that can be broadly classified into two categories.

1. Additional obligation on SMI: The first category involved placing additional obligations on the SMIs to ensure better protection of user interests.
2. Appellate mechanism: The second category involved the institution of an appellate mechanism for grievance redressal.

Why social media is said to be double-edged sword?

• Moderation of content by platforms: Social media platforms regularly manage user content on their website. They remove, priorities or suspend user accounts that violate the terms and conditions of their platforms.
• Excessive power in government’s hands: In today’s online environment, however, the existing government control on online speech is unsustainable. Social media now has millions of users. Platforms have democratized public participation, and shape public discourse.
• Platforms of democratic freedom: As such, large platforms have a substantial bearing on core democratic freedoms.
• Hate speech on internet: Further, with the increasing reach of the Internet, its potential harms have also increased. There is more illegal and harmful content online today.
• Disinformation campaigns: On social media during COVID19 and hate speech against the Rohingya in Myanmar are recent examples.

What could be the balanced approach between free speech and regulation?

• Government orders must be respected: Government orders to remove content must not only be necessary and proportionate, but must also comply with due process.
• Example of DSA: The recent European Union (EU) Digital Services Act (DSA) is a good reference point. The DSA regulates intermediary liability in the EU. It requires government takedown orders to be proportionate and reasoned.
• Platforms can challenge the governments order: The DSA also gives intermediaries an opportunity to challenge the government’s decision to block content and defend themselves. These processes will strongly secure free speech of online users. Most importantly, an intermediary law must devolve crucial social media content moderation decisions at the platform level.
• An idea of co-regulation: Platforms must have the responsibility to regulate content under broad government guidelines. Instituting such a coregulatory framework will serve three functions.

1. Platforms will retain reasonable autonomy over their terms of service: Coregulation will give them the flexibility to define the evolving standards of harmful content, thereby obviating the need for strict government mandates. This will promote free speech online because government oversight incentivizes platforms to engage in private censorship. Private censorship creates a chilling effect on user speech. In turn, it also scuttles online innovation, which is the backbone of the digital economy.
2. Coregulation aligns government and platform interests: Online platforms themselves seek to promote platform speech and security so that their users have a free and safe experience. For instance, during the pandemic, platforms took varied measures to tackle disinformation. Incentivizing platforms to act as Good Samaritans will build healthy online environments.
3. Outsourcing the content regulation: instituting coregulatory mechanisms allows the state to outsource content regulation to platforms, which are better equipped to tackle modern content moderation challenges.

• Platforms must follow the due process of law: Platforms as content moderators have substantial control over the free speech rights of users. Whenever platforms remove content, or redress user grievance, their decisions must follow due process and be proportionate. They must adopt processes such as notice, hearing and reasoned orders while addressing user grievances.
• Transparency in algorithm: Platform accountability can be increased through algorithmic transparency.

Conclusion

• The GACs must be re-looked because they concentrate censorship powers in the hands of government. A Digital India Act is expected to be the successor law to the IT Act. This is a perfect opportunity for the government to adopt a coregulatory model of speech regulation of online speech.

Mains Question

Q. Social media is a double-edged sword in the realm of free speech. Substantiate. Explain in detail the Idea of coregulation of social media.

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