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Courts are the new battleground for social media giants in India

Over the past few months, the biggest social media companies have been put on trial in India. Courts have become a battleground with Facebook, WhatsApp and Twitter in various courts of the country right now, both as petitioners and respondents. 

Last week, the head of Facebook India Ajit Mohan was in the Supreme Court which ruled that he would have to appear before a Delhi Assembly committee for his representation regarding the riots that broke out in Delhi last year. In its judgement the court also said that “the capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be”. 

Around the same time, Twitter India’s Manish Maheshwari was arguing in the Karnataka High Court that the notices the Uttar Pradesh Police sent to him over an investigation into a viral video were “without the sanction of law”. The UP Police, though, said Maheshwari was playing “hide and seek”.

Separately, Twitter was in the Delhi High Court getting an earful from the judge for not yet having complied with India’s new social media rules and assuring the court that it will comply soon. On Sunday, the company appointed a resident grievance officer and released a compliance report as required under the new social media rules. 

WhatsApp, too, was in the Delhi High Court over its controversial privacy policy, committing that it won’t enforce the policy until India passes the imminent personal data protection bill. 

All this, just in the last week. And it looks like there is a lot more of the same to come.

A privacy lawsuit filed by WhatsApp against a particular provision of the social media rules which it claims threatens encryption security is yet to come up for hearing. And then Twitter told the Delhi High Court that while it will comply with the rules, its submissions do not mean that it is giving up its right to challenge the rules later on. 

It’s been the same story outside of the courts as well. In May, Delhi Police’s anti-terror wing descended on Twitter’s Delhi and Gurugram offices to serve the company a notice. Twitter called it “intimidation” but according to the police it was a “routine process”. 

Former IT Minister Ravi Shankar Prasad and Twitter, for a long time, were locked in a public war of words. And Prasad’s replacement, Ashwini Vaishnaw, said that Twitter is not above the law of the land on his first day of taking charge of the IT Ministry. 

According to experts, all this is a culmination of the government wanting to increase its control over social media platforms and the platforms trying to find wriggle room wherever possible. 

Big tech and big businesses thus are at crosshairs of governments globally.

And according to lawyer Prasanna S, this tussle is actually a good thing.  

“The tussle between social media companies and the government is important. These are two different power centres and it is important they be at loggerheads with each other. For instance, judicial power is separate from executive power and the tussle between those two is always a good thing,” Prasanna said. 

“Besides, we don’t want these social media entities to be cowed down by the government, and comply with everything with tails between their legs,” Prasanna added. “We want these companies to stand up to the government for all legitimate purposes.” 

Rahul Narayan, a Supreme Court advocate, acknowledged that social media companies today have become too big which is among the major reasons why governments around the world have been rushing to regulate the segment.

“Social media companies have more of a soft power. People can connect with millions of people so naturally it becomes important to control,” he said. 

Both Narayan and Prasanna were lawyers for the petitioners in the landmark 2017 right to privacy judgement by the Supreme Court. Prasanna is also a member of the rights body Article 21 Trust which works at the intersection of the right to life and digital technologies. 

Prasanna also cautioned that any disciplinary actions under the regulation should not be handled entirely by the government. 

“There is absolutely no question that social media platforms are an important medium through which political speech happens. And when the government controls these platforms it will also try to control that political speech. So any disciplinary action for social media where the government is involved should be a no go,” Prasanna said. 

The alternative to the government acting like a regulator of social media, according to Prasanna, should be regulation by independent bodies that are statutorily appointed with very little involvement from the government.

“The Competition Act is great, but it is not sufficient alone to regulate social media companies. Public listed companies are regulated by multiple entities like SEBI, CCI and RBI. Similarly, social media companies being answerable to multiple regulators is not a bad thing at all,” Prasanna said.

Udbhav Tiwari, who is a public policy advisor to Mozilla, said that there certainly is a growing consensus across the world to have an independent regulator to regulate social media. 

“The UK is taking a similar approach with its draft Online Harms Bill under which the Ofcom, which is similar to India’s TRAI, will act like a social media regulator. The EU’s Digital Services Act has also considered certain national authorities to regulate social media [called Digital Services Coordinators]. In the US, some draft amendments to their intermediary rules have proposed recognising the FCC as a regulator for some aspects,” Tiwari told Entrackr

However, he cautioned that the laws that form the basis of the formation and functioning of these independent regulators will have to be extremely well drafted. “None of these except for the EU’s Digital Services Act have created a good legal framework for these regulators to function in,” according to Tiwari.

Under the new IT Rules, significant social media intermediaries—platforms with over 5 million Indian users—are mandated to appoint a chief compliance officer who can be held liable under any proceedings in case of non compliance. This, according to Narayan, could lead to companies over-censoring content just to be on the right side of compliance. 

“Over censorship is a real danger. If a company’s employee is going to go to jail for certain content decisions, then it is only natural that they will be over cautious and eventually start acting as agents of the government,” Narayan said. 

A highly placed source at a large social media company echoed the same sentiment. “You tell me, would you like to have a job where there is always a fear of going to jail? Social media platforms by design don’t produce content, they only host it. Why should criminal charges be applied to a person at a social media company for that?” this person said on condition of anonymity. 

“In countries like Russia and Turkey, social media companies are fined a certain amount for not adhering to their intermediary liability or content regulation regime. That is not happening in India,” Mozilla’s Tiwari said. 

“Here, the rules say you either comply or your executives face the threat of criminal action and that is an extreme jump. India needs to find a middle ground, issue a show cause notice for non compliance, fine these companies and engage in a more gradual process of escalation,” he added.

Queries sent to the IT Ministry, Facebook, WhatsApp and Twitter for this story remained unanswered until publication. 

When asked about the legitimacy of current social media regulation, Narayan said that the CCI investigation of WhatsApp’s privacy policy is a good thing. Similarly, provisions to stop the circulation of child pornography and other similar types of content under the IT Act is welcome. “But the government can not act on behalf of political parties in regulating social media,” he added. 

It is worth remembering that in May the IT Ministry had sent letters to Twitter asking it to remove the “manipulated media” label from tweets by BJP chief spokesperson Sambit Patra and other people considered to have close ties with the BJP.

However, in these letters, the government did not cite the legal provision under which it was making these requests. Twitter still hasn’t removed the manipulated media label from those tweets.

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