Silencing Of A President – Media, Telecoms, IT, Leisure
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The power of social media platforms is now legendary. But silence the most powerful man in the world? This is something else! Press reports on Thursday’s unprecedented measures to freeze US President Trump’s accounts by social media giants may have come as a shock to the world. Especially since it was the president’s preferred method of engaging with his people (and the global public at large). This historic moment makes it controversial for the Ministry of Electronics and Information Technology (MeitY) to reconsider its proposed construct of agent liability.
To set the context in India, in the 2015 Shreya Singhal judgment, the Supreme Court held that online content could be removed from intermediary platforms by court order or at the behest of the government. This offered social media platforms protection from liability in connection with user-generated content. Thereafter, MeitY proposed changes to the Intermediaries Guidelines from 2011 to include provisions such as mandatory upload filters and message traceability. Before India ushers in an era of pre-censorship, let’s consider how social media platforms respond to powerful political statements in the context of their community guidelines.
An e-commerce platform blocking Trump’s online merchandise websites has made a strong statement that it will not tolerate acts of violence. The President’s recent actions allegedly violated the Platform’s Acceptable Use Policy, which prohibits promoting or endorsing any organization, platform, or person who threatens or condones violence to advance cause.
In upholding free speech, a popular networking site hasn’t removed Trump’s inflammatory posts, including the one posted in May 2020 that advised protesters could be shot in Minneapolis. or subsequent posts spreading misinformation about the voting via email. However, on November 5, 2020, a group called “Stop the Steal” that organized protests against the president’s vote was banned. This week’s actions reaffirm your commitment to complying with these community guidelines.
According to current Indian law, Section 79 of the Information Technology Act of 2000 (IT Act) offers intermediaries a conditional Safe Harbor protection for third-party content on their platforms, provided that it is only conduits that only allow access to communication systems and refrain from doing so Submission of the content. Intermediaries are expected to have privacy policies and the due diligence required in the Intermediary Policy. In the Indian context, would actions such as the shutdown of the President be considered appropriate due diligence?
What MeitY suggests is to go beyond this due diligence and following community guidelines. The goal is the mandatory provision of automated filters for proactive monitoring of content on such platforms. Does this proposal address the lack (according to the Supreme Court) of the obligation on intermediaries to use their own thoughts to assess the legality of user content? Would this move, which would change the view of the Delhi Supreme Court in My Space Inc. v Super Cassettes Industries Ltd. and Kent RO Systems Ltd. against Amit Kotak quoted, have a frightening effect on freedom of speech on the Internet?
MeitY’s suggestions could not only compromise freedom of speech but also compromise user privacy as automated filters go through all content uploaded on a social media platform. In the case of KS Puttaswamy v Union of India, where privacy in relation to information and communication has been declared as fundamental rights under the Indian Constitution, legitimizing instruments before censorship would certainly violate the general right to privacy in India.
MeitY recognizes the impact of social media on society, from electoral democracy to mass movements on issues such as sexual harassment, and also suggests introducing the concept of news traceability. The traceability of users of E2EE (end-to-end encryption) platforms such as WhatsApp and Signal is a challenge as the intermediary does not have access to the content flowing through its platform. The introduction of a traceability function for E2EE services requires the removal of the secure encryption. and this would again lead to an impairment of the privacy of the individual.
In MeitY’s defense, it is clear that the lack of U.S. laws governing government speech on social media left the door open for Trump’s leverage to unbridled propaganda. Globally, the lack of meaningful regulation in this area has resulted in social media platforms having little or no incentive to regulate their lucrative platforms, curb the spread of lies, and put people in power (in government or otherwise ) to moderate. MeitY is understandably trying to fill this gap in India. At the same time, the question arises: is it going too far?
Social media platforms follow the community guidelines and walk the tight rope to reconcile freedom of speech with a view to undesirable content. MeitY needs to actively look into them to see how the proposed changes will affect the future of the Internet in India. Will it censor free speech? Dilute privacy? Restrict the fundamental rights of Indians? One needs to reassess the proposal for social media verification (in the Personal Data Protection Bill) which, when read with concepts of upload filtering and traceability, provides the necessary conditions to free the internet’s free and open space for users to restrict.
Drafting an intermediary liability law in the light of the proactive shutdown of the US President through social media platforms requires global collaboration between tech companies, civil society, academia and governments. This ensures that consistent political developments do not lead to the digital rights of users being impaired.
Undoubtedly, the violence in the US capital is a direct result of the falsifications, conspiracy theories and hate speech that have become acceptable on social media platforms. But how is this crime seen in relation to the intermediaries? Should they be seen as accomplices or advocates? Or would their unprecedented action be welcomed?
While regulating harmful content is essential, social media platforms cannot be expected to take over the President of the United States! Interestingly enough, they did just that.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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