Regulation of Social Media in India

WHY IN NEWS:

• Twitter has lost legal protection in India over its failure to appoint statutory officers in line with the new IT rules

WHAT IS SOCIAL MEDIA?

• Social media are interactive technologies that allow the creation or sharing/exchange of information, ideas, career interests, and other forms of expression via virtual communities and networks.
• It can be categorized into six types:
  • Joint projects like Wikipedia
  • Blogs like Twitter
  • Content Communities like YouTube
  • Social Networking Sites like Facebook, Whatsapp
  • Effective Game Worlds like World of War craft
  • Virtual Social Worlds like Second Life.
• Social media is different from traditional media in a sense that it has a broader reach, allows two-way conversation and immediate exchange of information, is generally free of cost and lacks any entry barriers

STATISTICS:

• Around the globe, there are more than three billion active social media users and the number is growing by 9% annually
• Social networks are one of the fastest growing industries in the world with a projected 34% annual growth over the next 5 years
• India has 574 million active Internet users as of 2019, and India is the second-largest online market, behind China.

BENEFITS OF SOCIAL MEDIA:

• Political Empowerment:
  • Social media has proven to be a solution to the challenge of declining youth political engagement as it has provided a new medium of communication through which established political institutions and actors can reach out to young citizens
• Dismantled the hegemony of traditional media:
  • Social dismantled the hegemony of corporate-owned print and TV media houses along with the dominance of the traditional urban elite in the production and consumption of news
  • It has provided an alternate source of knowledge in a world where mainstream media has come under severe public criticism for propaganda.
• Democratisation of Information
  • Social media is allowing the democratisation of knowledge and broader communication.
  • People around the world now feel empowered to bypass traditional curators of information.
  • They have also become creators and disseminators of content, not just consumers of it.
• Economic empowerment:
  • Social media is facilitating access to customized information about jobs and employment opportunities and is overwhelmingly perceived as an important tool for businesses in general, and speci?cally for start-ups and social enterprises
• A transformational tool for education:
  • Social media has gained incredible popularity over the past few years as an open source of information and knowledge sharing platform
• Platform for marginalised communities to ?ght for their rights:
  • Social media provides a great platform to marginalised communities to express their feelings, issues, problems and organise themselves to raise their voice against oppression.
  • For example: Use of rainbow pro?le ?lters on Facebook enhanced feelings of belonging in LGBTQ community and acted as a means of showing support for the community.   
• Women empowerment and bridging gender divide:
  • Social media has proved to be a powerful vehicle for bringing women’s rights issues to the attention of a wider public, challenging discrimination and stereotypes and encouraging policy makers to step up commitments to gender equality.
  • Hashtag activism which includes various campaigns such as UN Women’s #HeForShe, #MeToo have helped to mobilise public attention on women’s rights
• Cultural integration:
  • It has provided a common way of linking people from diverse communities, traditions, opinions and places with each other across the world establishing a sense of belonging to a greater social network other than one’s own local community.
• Improved governance:
  • Social media provides an interactive two way communication mechanism through which the government can measure public sentiment with respect to new laws or key policy changes
  • Moreover Social Media has empowered common people to directly interact with the government and avail government services directly.

NEED FOR REGULATION:

• Social costs:
  • Impacts of social media on human behaviour and societal functioning have necessitated a conversation on how social media platforms should be regulated to minimize their social costs such as adverse impact on mental health, anti-social behaviours etc.
• Big tech companies leveraging their dominant position to impose unfair terms and conditions on Indian users:
  • For ex: WhatsApp in 2021 >> updated its privacy policy >> according to which users would no longer be able to stop the app from sharing data (such as location and number) with its parent Facebook unless they delete their accounts altogether.
• Ethical and privacy concerns:
  • The unethical use of social media has resulted in the breach of individual privacy and impacts both physical and information security.
  • While children and teenagers represent the largest Internet user groups, for the most part they do not know how to protect their personal information on the Web and are the most vulnerable to cyber-crimes related to breaches of information privacy
• Increasing polarisation of society:
  • There is mounting concern that the hyper-personalization bias of social media algorithms contribute to social polarization by creating ‘?lter bubbles’ or ‘echo chambers’ that insulate people from opposing views about current events
  • People seek 'informed' opinions through ?lters only from people they trust and look for news that con?rms their world view (known as Con?rmation Bias) and users are more likely to like and share the more polarizing topics (called the ‘ampli?cation effect’).
  • Excessive social polarization is undesirable as it erodes the democratic institutions that protect free speech and other basic rights.
• Threat of fake news and misinformation:
  • It is often very difficult to establish authenticity of news receiving through social media sites.
  • The nature of anonymity that it provides will give space for fake news generators to thrive.
  • Traditionally we got our news from trusted sources, journalists and media outlets that are required to follow strict codes of practice.
  • However, the internet has enabled a whole new way to publish, share and consume information and news with very little regulation or editorial standards.
  • Competition among websites and social media platforms has sometimes resulted in the generation of fake news
  • In the past year, more than two dozen people have been lynched by mobs spurred by nothing more than rumours sent over WhatsApp
• Financial frauds
  • People are becoming victim of online scam through social media
• Threats to national security:
  • Unregulated social media has empowered state and non-state actors with the means and know how to co-opt the media landscape in pursuance of illegal and terrorist activities, such as radicalization, child pornography, human traf?cking, drug trafficking etc.
  • Proven instances of gross failures of Facebook includes anti-Muslim riots in Sri Lanka, the violence against Rohingya in Myanmar
• Undermining democratic institutions
  • Unregulated social media has also allowed foreign and domestic actors to interfere in democratic functioning of nations through unidenti?ed use of political advertisements during elections, spreading disinformation about government bodies etc.
  • For ex: Facebook–Cambridge Analytica data scandal concerned the obtaining of the personal data of millions of Facebook users without their consent by British consulting firm Cambridge Analytica, predominantly to be used for political advertising during 2016 U.S Presidential election
• Violation of human rights
  • Social evils like online teasing, cyber bullying, posting in?ammatory or objectionable content, sexting and trolling etc.
• Online abuse and defamation
  • Social media offers a platform to trample the dignity of individual for political and personal purposes.
• Denial of agency
  • Social media deprives people’s ability to exercise freedom of thought. Although the user is still making choices, their decisions ultimately ?ow from understandings that may suffer from detrimental misconceptions that were promoted by a platform’s algorithms

PRESENT STATUS OF REGULATION:

• The Information Technology Act, 2000
  • The Act de?nes ‘Intermediary’, and Social Media platforms, as such fall under the de?nition of intermediaries and are required to follow ‘due diligence’ as prescribed under the IT Rules
• Guidelines for Social Media/Intermediaries under IT Rules 2021:
  • Categories of Social Media Intermediaries:
    • Based on the number of users, on the social media platform intermediaries have been divided in two groups:
    • Social media intermediaries.
    • Significant social media intermediaries.
  • Due Diligence to be followed by intermediaries:
    • In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
    • The safe harbour provisions have been defined under Section 79 of the IT Act, and protect social media intermediaries by giving them immunity from legal prosecution for any content posted on their platforms.
  • Grievance redressal mechanism is mandatory:
    • Intermediaries shall appoint a Grievance Officer to deal with complaints and share the name and contact details of such officers.
    • Grievance Officer shall acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.
  • Ensuring online safety and dignity of users:
    • Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc.
    • Such a complaint can be filed either by the individual or by any other person on his/her behalf.
  • Additional Due Diligence for the Significant Social Media Intermediaries:
    • Need to appointments:
      • Chief Compliance Officer
      • Nodal Contact Person
      • Resident Grievance Officer >> all of whom should be resident in India.
    • Compliance Report:
      • Need to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively.
  • Enabling identity of the originator:
    • Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information.
    • Required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, Or of incitement to an offence relating to the above or in relation with rape etc.
  • Removal of Unlawful Information:
    • An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the appropriate Govt. or its agencies through authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.
• Initiative from Judiciary
  • The Supreme Court of India issued the directions to the print, electronic or social media to maintain a strong sense of responsibility and ensure that unveri?ed news capable of causing panic is not disseminated.
  • The Supreme Court has struck down the controversial Section 66A of the Information Technology Act, 2000 that made posting "offensive" comments online a crime punishable by jail, as being unconstitutional and against free speech
• Initiatives taken by election commission
  • In the 2019 elections, The Election Commission of India has issued instructions on social media use during election campaigns that require candidates
    • To provide certain information about their social media accounts
    • Obtain pre-certi?cation or approval of their political advertisements
    • Report expenditure on campaigning through the internet, including via social media websites.
• Other steps taken:
  • The government has urged the Internet Service Providers (ISPs) to block access to child pornography websites and also requested them to educate its subscribers about the use of parental control ?lters on devices via messages, emails, invoices, websites and more.

CHALLENGES ASSOCIATED WITH REGULATION OF SOCIAL MEDIA:

• Undermine the principles of open  Internet:
  • Regulating social media could undermine the principles of open and accessible Internet
• Issue of accountability:
  • Since platforms do not generally create their content, they contend that they are not responsible for what users produce and are thus exempt from the libel, defamation, and other laws and regulations that govern traditional media like newspapers and television
• Compliance sti?es innovation and creates monopolies:
  • Collective experience over many industries (ex: banking, healthcare, insurance, oil, etc.) has shown that high cost of complying with government regulations inhibits competition since it discourages startups from entering a market and disproportionately harms existing smaller players
• Impact on free speech:
  • Public regulation related directly to content moderation (a take-down of content approach) could lead to building a censorship framework that might harm freedom of expression and suppress dissent or disfavoured speech which, in turn, may lead to more “unimaginable harm to democratic polity”.
• Violates the principle of self-regulation:
  • Regulation of social media, such as New IT rules of 2021 >> makes a mockery of the concept of self-regulation, with an inter-ministerial committee of government officials in effect becoming an appellate authority over the self-regulatory exercise

SUGGESTIONS:

• Self-Regulation by the platforms:
  • A self-regulatory framework can help social media platforms ful?l their obligation to the public to limit spread of misinformation, extremism, hate speech, etc. and build trust with community members.
• Capacity building:
  • Addressing the prevailing issues in the society:
    • Efforts to address prevailing issues in the society will increase the potential bene?ts from social media usage
    • There is thus a need to focus on addressing the prevalent issues of communalism, casteism, sexism, extremism, poor law and order etc
  • Promoting inclusivity:
    • Advantages of social media are restricted for many people to due illiteracy, language barriers and the digital divide in infrastructure between rural and urban areas
  • Digital Literacy and Awareness:
    • It is far less controversial than attempting to regulate the internet
    • Responsible social media use must be taught at our educational institutions
• A balanced approach of government:
  • Governments should strive to protect free speech and at the same time mitigate the social costs of the social media by providing a strong democratic oversight
  • Government should make social media platforms liable for obviously illegal content, if it is not removed within a certain period of being reported
  • Government should also encourage social media companies to de?ne and periodically update content standards and enforcement guidelines
• Institution building:
  • Independent agencies at the national and international levels by abiding by a unified data governance law like General Data Protection Regulation (‘GDPR’) may act as the coordinator between the three stakeholders- government, social media companies and individuals.
• Global cooperation:
  • Misinformation and deliberate conspiracies such as QAnon, Anti-vaccination, anti-5G, etc. can impact a wide global population irrespective of its origin.
  • Therefore countries need to come together under the aegis of the United Nations to form a multilateral agency for a coordinated measure to regulate social media

PRACTICE QUESTION:

Q. “The growing and the close intersection of social media and law need fresh thinking and innovative ways of regulating content online”. Discuss