The case for regulating social media in India

It has been exactly a month since the results of the general elections 2019 were announced. The time has come to seriously evaluate the role played by social media in spreading disinformation and hate speech in election season. To do so it is imperative to first understand the structure of social media platforms and for that it is necessary to go back to the invention of the telephone itself.

The telephone was invented by Alexander Graham Bell in 1875. Using tuned metal reeds, wire and magnets he and his colleagues were able to harmonise a sending telephone with a receiver and reproduce sound. On March 10, 1876, Bell transmitted the first sentence “Watson, come here I want you” through his contrivance and the communications revolution has not looked back since then.

The telephone essentially is a platform that people still use to communicate with each other. Every telephone user has a number that he or she uses — that number is supposed to be linked to an identity. If the telephone network is misused for the purposes of making crank, anonymous or abusive hatemongering calls the same can be invariably tracked to the miscreants.

However, with the advent of calling cards that could be used from landline phones and later mobile telephony — the ubiquitous SIM cards, these networks are also abused but the problem is not insurmountable.

Telephone companies do not take responsibility for content transmitted over their networks claiming that they are primarily network providers and how the subscriber uses the system is not their responsibility.  With various value added services getting added to the original voice transmission capacity over the past three decades this paradigm also requires a revisit and telecom operators globally should be made vicariously liable in certain instances when there networks become catalysts of mass social and economic disruption.

Now fast-forward to the 1960s. The first practical model of the Internet came with the conception of ARPANET or the Advanced Research Projects Agency Network. Funded by the U.S. Department of Defense, ARPANET utilised packet switching to allow multiple computers to interconnect over one specific network.

By the 1970s scientists had conceptualised the Transmission Control Protocol and Internet Protocol, or TCP/IP, a communications template that set benchmarks on how data could be conveyed between manifold networks. ARPANET embraced TCP/IP on January 1, 1983, and from thereon began the interlinking of network of networks that became the modern Internet.

The online world then took on a more discernible shape in 1990, when computer scientists developed the World Wide Web. While frequently confused with the Internet itself, the web is essentially the most conjoined ways of accessing data online in the shape of websites and hyperlinks. It is the web that aided the propagation of the Internet among the masses. It functions as a critical tread in assembling the titanic trove of information that most of us now use on a daily basis.  The social media platforms like Facebook, WhatsApp, Twitter, Tik Tok and a multitude of others are the flora and fauna of this World Wide Web.

These social media platforms allow people to register themselves for using their services bereft of any tangible verification. As a consequence a number of individuals, companies, political parties, intelligence structures, non-state actors, terrorist groups and even governments abuse this anonymity in order to spread disinformation, abuse, hate and vitriol that has serious implications including and not limited to interference in the sovereign and even democratic functioning of states, causing conflagrations, cyber warfare and interdiction of critical infrastructure to name but a few of the nefarious uses of this framework in the ether. This does not include the vicious dark net that requires very specific browsers to access.

Human beings now live in two parallel civilisations concurrently, a physical and a virtual civilisation. Notwithstanding as to whether the content in question is positive or negative, social media platforms claim that they neither have control over it nor can they verify it. They take no responsibility for allowing dissemination of content irrespective of its portentous repercussions.

Their rationale is that they are platforms and not content providers; therefore they cannot and should not be expected to regulate content governed as they are by the principles of free speech. They are also incorporated in jurisdictions that have strong freedom of expression laws that they hide behind to insulate themselves from lawsuits that could make them liable for what gets transmitted over their platforms.

However, the big social media platforms are not only monopolies in themselves but the equivalents of a public square, albeit a digital one. The Big Five of the virtual civilisation are now akin to public utilities and must be regulated as such. The argument, therefore, that they do not bear responsibility for content on their platforms is
both dubious and disingenuous.

Recently, Assistant Attorney General Makan Delrahim of the US Department of Justice and it’s anti-trust chief in a speech in Israel even alluded to the historic anti-trust actions against Standard Oil, AT&T and Microsoft and stated that there is no need for new anti-trust laws. Those on the books suffice for the new digital arena also thereby implying that there is a case to break up these humongous digital monopolies.

India has over 340 million social media users who consume social media in over a dozen languages.  Facebook is the preferred vehicle of this consumption. It has a serious disinformation problem, particularly during elections and in disturbed geographies. During election season and in turbulent regions posts with incendiary consequences are routinely shared, especially through the encrypted WhatsApp platform. While social media platforms may remove certain pages and delete certain users in response to a outrage it is at best selective and worst glaringly deficient in dealing with hate speech as the author experienced first hand during the recent elections. Though social media platforms claim that they have editorial filters, at a practical level they are virtually redundant.

The effects of such content, circulated by social media in India, cannot be downplayed nor dismissed arbitrarily. In a society as disparate as ours the cohesion we enjoy cannot be taken for granted in the face of unregulated technologies that people are not trained to use.

In the context of the human, political, economic and even existential threats that are manifest, it is irresponsible for social media outfits to refrain from taking responsibility for their content especially when their actions undermine the very principles they professes as sacrosanct. An appropriate legal architecture to counter the enormous sociopolitical problem with its attendant national security implications should be the single biggest national security priority for us as a nation.