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Why Twitter, WhatsApp must comply with India's new IT rules

The role of big-tech and social media companies in fostering public debates has come under renewed focus, across the globe, in recent weeks.

In India too, after the new Information Technology (IT) rules framed by Government of India came into force, the issue has also acquired a particular edge. The topic has animated the policy makers of countries as far and wide as the United States, Singapore, Australia, France, Brazil and others.

French President Emmanuel Macron’s reaction, after Twitter and Facebook banned former US President Donal Trump from their platforms, captured the essence of the debate – “I don’t want to live in a democracy where the key decisions… is decided by a private player, a private social network. I want it to be decided by a law voted by your representative, or by regulation, governance, democratically discussed and approved by democratic leaders.”

At the core of this debate is the argument by social media companies that they are merely intermediaries, providing a platform to users to express their views without the fear of political or other forms of censorship. Hence, special dispensation should be carved out for these social media companies to recognise this reality.

When these social media platforms first began, this may have been true and that is why they were indeed given safe harbour protection by most national legislations, including, for example, in India. But as the social media platforms themselves evolved, so have their policies of enforcement and community guidelines.

After more than a decade and a half of existence, are the platforms still merely intermediaries, or in the garb of intermediary protection, the platforms have actually morphed into something else? Consider some scenarios, especially since social media platforms are now a very important medium for global discourse.

Taking down social media posts

Should a private player have the unfettered right to decide the norms of free speech for every country in the world? Why should the cultural norms of one country be imported or enforced into another country? Also, who will be the investigator and who will be the adjudicator for a post in dispute?

If every role is going to be performed by the faceless, unaccountable executives of a private company then what about the principles of natural justice? In case of a wrongful decision, who is the appellate authority - the same social media company executives? Then where is the separation of powers?

These are not mere theoretical questions but have very practical consequences as many examples have already established. Add to the mix, the political ideology of the executives of the social media companies and it is a frightening specter of absolute power being used to crush down a particular point of view.

National jurisdictions or supra national entities

A pertinent recent case is the case of Twitter in India. The new IT rules, that came in force on 25th February 2021, enjoin upon Twitter to appoint an India based Grievance Redressal Officer and a requisite mechanism. It is simultaneously also mandated to nominate a Chief Compliance Officer and a Nodal Officer. All other significant social media companies have complied with the rules but Twitter has so far refused to do so.

If a user has a grievance with Twitter’s actions, or if a user wants to lodge a complaint against abusive tweets or harassment, then the user has no option but to deal with faceless and nameless people who operate behind opaque policies enforced arbitrarily, and who are sitting in undisclosed locations.

The cornerstone of any redressal process is that it is transparent; is based on clearly identifiable rules; that all the parties in contention have a fair chance of making their case, and that there is an appellate process in case of dissatisfaction with the verdict. None of these criteria are met in the way Twitter currently operates. The new IT rules, with its multi-tier redressal mechanism, try and address this anomaly.

Consider a person who has been banned by local district administrators from making political speeches under the pretext that his speeches are disturbing peace in the area. The judicial mechanism ensures such a provision is not misused to throttle uncomfortable speech and the aggrieved person can make his case as can the local law enforcement and a final justiciable decision is taken.

Now consider an equivalent case of a person permanently banned from Twitter. In this case the decision takers are not even judicially trained minds or accountable public servants but totally private individuals only accountable towards their monthly pay-cheques.

Add to the mix the political ideology of the decision taker, and it is an unchecked field of blatant interference in political affairs and political discourse of a third country. An executive, sitting in Silicon Valley shall decide whether a person in India or France or Australia should have a platform to express his views or not?

A question maybe asked that Twitter, or other social media companies are not the only platform so why give so much importance to them? It is because the social media companies claim the benefits of being public goods, and that is why they enjoy the safe harbour protection, not available to other private organisations.

Also, once a critical scale, volume and mass adoption is reached, social media platforms are no longer private squares but become public goods where national regulations protecting rights and liberty of citizens must equally apply.

National security and law enforcement

A curious case has emerged in India with WhatsApp contesting the Indian government’s demands of tracing the first originator of a message which has subsequently been used to commit a crime or has national security implications.

In a rather contentious move, WhatsApp has tried to revolve the whole debate on encrypted nature of conversations on its platform and thus argue that privacy of user chats will be violated if first originator is traced.

Encryption is not the only technology through which privacy of user chats can be maintained. In any case, it should be obvious that how to figure out the technology challenge of maintaining privacy while at the same time cooperating with law enforcement should be WhatsApp’s job and not that of government.

The IT rules have multiple safeguards inbuilt so that such requests are very rarely raised and also are so designed so as not to intrude into private chats at all. The contents of the chats are specifically barred from being revealed.

Yet, a question can be asked – is tracing the first originator of messages really necessary?

Consider terrorists using WhatsApp chats to plot an imminent attack. Should the enforcement agencies not have the ability to interrupt such a plot and save human lives?

In the Indian city of Hyderabad, absolutely fake rumors of child lifting that first started circulating on WhatsApp actually led to murders in the real world.

Should the law enforcement agency not have the powers to find out who the devious mind was who first started the rumors? If such rumor mongering would have happened through conventional means, would the law enforcement agencies have been similarly constrained?

If a message is allowed to go to would be criminals and other terrorists that WhatsApp is a free space without repercussions, imagine the real-world consequences?

Larger, long term debates

There are some other questions that policy makers across the globe are already pondering since they have long term consequences.

First, are social media entities, most of them based in one country, merely private companies or are they extension or contributor to the national power of that country? If latter, then when it really matters can we really be sure that they will not be used as geo-political tools of that country?

Second, will we be as sanguine if in future a social media company acquires global scale but is based in a country which has dictatorial or military rule? Will we be then also sure that the said social media company is merely a private company and not an extension of the deep state of that country?

If not, then should legislations not be so designed to cater to all such scenarios? Additionally, should regulations carve out compliance exceptions for social media companies based on their country of origin or should they be agnostic to country of origin and be applicable to all?

Third, what happens if social media companies start taking calls on issues that are hotly contested or have different versions in different countries? For example, should the COVID-19 virus be identified with its country of origin or not? How should a disputed land between two countries be identified through GPS tagging in social media posts?

Fourth, should the norms or speech in one part of the world be enforced in other parts of the world without any consideration for the sensitivity to the cultural context?

Fifth, since ultimately social media companies are private entities and responsible to their shareholders, and given hundreds such examples, is it really possible to discount the possibility of dubious big money being used for geo-political, or geo-strategic purposes through these social media companies?

The role of big tech, especially social media companies, have been a net positive for the world. They have empowered millions of people and democratised the opinion industry like never before in history.

However, just as all other sectors are regulated, the world is currently in the process of figuring out the regulation mechanism which will be in tune with the current realities and the foreseeable future.

The social media companies are no longer the adolescent babies that were born in the mid-2000s. Some are hyperactive teenagers while some others are fully grown-up adults. The regulations must evolve to keep up pace.