LEGAL CHALLENGES OF REGULATING SOCIAL MEDIA PLATFORMS AND ONLINE CONTENT MODERATION

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This article is written by Harleen Kaur of 7^th Semester of BALLB (Hons.) UILS, Panjab University, Chandigarh

ABSTRACT

Social media, in this day and age, has become a handy tool for the entire world. It is one of the most popular and amazing developments of modern technology. But with this comes another aspect of social media to be considered which is not so positive all the time. This aspect being the dark side of social media and online content. To make this even more controversial, there was not any such regulations to keep an eye on what was being put out there on these platforms before 2021 in India.

This article discusses the legal challenges for providing such regulatory framework. It is challenging to provide a framework to supervise online content of such scale and volume. The diversity of our country makes it even more difficult. A content objectionable in one context may not be objectionable in the other. The lack of set standards for what objectionable content means, is another challenge for our legal system.

There has been a lot of discussion on why the regulations are the only answer to resolving the issues with social media. One cannot dismiss that there is actually a need to have some restrictions. What is important is to make sure that such restrictions on the online content should not end up curbing the rights of an individual to voice their legitimate opinions.

KEYWORDS: social media, regulatory framework, hateful speech, freedom of speech.

INTRODUCTION

Social media is a tool which helps in providing mass connectivity. In the era of modern technology, social media has emerged as one of the most powerful of such innovations. In the past few years, especially during the COVOD-19 pandemic, it played a very important role is maintaining relations amidst the lockdown. It assisted a lot of activities, such as continuing work by the practice of work-from-home or continued education through online classes.

As per the Cambridge Dictionary, social media refers to,

“Websites and computer programs that allow people to communicate and

share information on the internet using a computer or mobile phone”

Merriam- Webster Dictionary defines social media as,

“Forms of electronic communication 9sucha s websites for social networking

and microblogging) through which users create online communities to share

information, ideas, personal messages, and other content (such as videos)”

As per the Forbes Report of 2023, globally, there are 4.9 billion active social media users and these numbers are growing at a rate of 9% p.a.

In fact, one of the fastest growing platforms in the world are social media and online content platforms with an estimated growth of 34% p.a. over the next five years.

India is the second largest online market after China. As per the Forbes Advisor[1], at the beginning of 2023, there were about 398 million users (18 years or above) which constitutes for 40.2% of the entire population of India.

So, it is seen that the youth—particularly teens are the largest user base of social media. Unfortunately, they are the most vulnerable group of the population with regards to their mindset, excitement of exploring the world, finding themselves, etc.

But one cannot disregard the fact that social media is reshaping the world today, and it is almost impossible to stay untouched because every person is affected by one facet or the other of the realm of social media.

As it is said that every coin has two sides so as much as social media is helpful, there are other facets to it as well—some believe it to be a blessing while others see it as a bane to human existence.

These platforms create a very easy and large space for crimes i.e., cyber-crimes such as identity theft, sexual predators, cyber stalking and defamation.

GOVERNMENT’S EMPHASIS ON REGULATIONS FOR SOCIAL MEDIA

Considering such situations, the Indian Government has emphasized the need to provide a regulatory framework for social media. The issue of content regulation has always been important considering the diversity of our society—in all aspects—caste, religion, economic status and language. This all makes up of a very sensitive environment.

There is a concern that social media could disrupt the democratic machinery of India due to unregulated content posted regularly on social media. This makes it very easy to attack the government, or anyone for that matter. The government aims to create a more transparent and accountable space with regards to social media platforms.

There is a unanimous opinion that the objectionable content needs to be regulated, e.g., child pornography, threats or violent videos, extremist content, etc. It is believed that social media promotes misinformation, hate speech, defamation, bullying, etc. It is argued that there has been an influx of fake news items especially on WhatsApp and Facebook. There is no editorial control over such content which makes it easy to circulate the same to a large number of people. For instance, in 2018, there was a fake news spread that there had been an incident of mob lynching of five men in Maharashtra—which was not true and still led to a lot of public unrest.

Moreover, India is a target for hostile nations like China and Pakistan—and social media is easily weaponized in such sensitive matters.

Anyways, the Government provides that for electronic media, there are regulatory guidelines under the Cable Television Networks (Regulations) Act, 1995. But there is no such law when it comes to social media and a lot of people or organisations take undue advantage of this loophole.

On the basis of the above-mentioned arguments, the Government has introduced some regulations:

Information Technology Act, 2000 and its Amendments

This Act governs a number of aspects of online content and social media platforms.

Section 69A– The government is empowered to block online content that threatens national security, public order or incites violence. It can issue directions to block access to a specific website or content.

Section 79– This provision creates a liability of intermediaries which includes social media platforms. These intermediaries are to observe and supervise the content to remove or disable any illegal content upon receiving notice from appropriate authority.

Section 505(2)– Sharing or spreading any content that promotes hatred, enmity or malice among religions or social groups is punishable.

Intermediary Guidelines and Digital Media Ethics Code (2021)

This was the first time the government ever provided detailed guidelines for digital content and OTT (Over the Top) platforms. The aim of this code was to regulate social media intermediaries and digital media platforms. These guidelines impose certain obligations on intermediaries including social media platforms such as:

Appointment of a Chief Compliance Officer, Grievance Redressal Officer and Nodal Contact Person.
Implementing a content moderation mechanism which would work to remove any prohibited content within 36 hours of receiving a court order or notification from appropriate authorities.
Establishment of a grievance redressal mechanism to address user complains within a specified timeframe.

As per these rules, the publishers are to abide by the ‘Norms of Journalistic Conduct’ of the Press Council of India and ‘Programme Code’ under the Cable Television Networks Regulations Act.

In 2021, there was a plea filed before the Supreme Court against the 2021 Rules by the Jamiat Ulema-e-Hind. The Chief Justice of India expressed that the web platforms like YouTube run fake news and slander reputations possible due to an absence of regulatory mechanism. There is no accountability for such matters. So social media, due to the lack of any self-regulatory framework and legislative restrictions, becomes a little bit of a blind spot and is able to evade responsibility.

LEGAL CHALLENGES TO THE REGULATIONS—ARGUMENTS AGAINST GOVERNMENT CONTROL OVER SOCIAL MEDIA

The regulations on social media and the online content moderation on various platforms is not openly accepted by various stakeholders. It has been argued that such regulations to control online speech are unsustainable.

Social media platforms are integral to modern communication. It enables expression of opinions and increases public participation. This intersection of social media and freedom of speech raises some legal issues.

Freedom of Speech and Hateful Speech

Article 19(1)(a) of the Constitution of India provides every citizen a right to freedom of speech and expression. This right, however, not an absolute right. There are some reasonable restrictions[2] on the said right when related to sovereignty and integrity of India, security of the nation, public order, etc.

It is provided that the regulations on social media aim to combat hateful speech. But there is no clear standard of what hateful speech/content is. There is a need to have clear guidelines laid down for the same. It is also to be made sure that such guidelines are in proportion to the harmful speech whilst being uniform to avoid allegation of bias.

These considerations are pertinent to the subject matter and pose a legal challenge as it is a tedious task to lay down such legislations.

Contextual Nuances

When it is said that there is a need to clarify the difference between legitimate speech and harmful speech, it makes it important to understand context, culture, intent, etc. in different parts of the nation. This is a meticulous job but has to be considered for a consistent and uniform regulatory framework. If not done properly, there will be, misunderstanding leading to curbing a person’s right to freedom of speech by removal of their legitimate thoughts in the name of regulations.

Talking about hate speech, brings in the question of who defines it? Or what is it exactly? If we take example of the movies like Padmavat, Lipstick Under My Burkha and Article 15, it seems that what is understood to be hate speech, the standards of the same are not very reasonable. And such examples serve a testimony to the fact.

The same goes when one considers the need of such regulations on social media for the security of the nation. Whatever constitutes extremist or anti-national content is not clearly defined. There are no guidelines to judge the same. Allowing such regulations, it is argued, would make it very easy to remove any content at one’s own inconvenience. The hypersensitivity of one stratum should not serve as a reason to curb another’s fundamental right to freedom of speech and expression.

Scale and Volume of the Content

There is an enormous amount of content on social media platforms. In a short span of time, there are countless images, videos, messages, etc. on online platforms. This content reaches the masses with one click. It takes less time to send messages than snapping our fingers.

Thus, it is very difficult to keep track of such content. It would require a lot of effort to build a robust system efficient enough to keep track of the enormous content. Only then would it be possible to monitor it and apply the regulations laid down to keep a check of the same.

However, India does not have technology or tools advanced enough to take on such a tedious task. It is intimidating to even think about it. In absence of the same, even the laws cannot achieve their objective, no matter how detailed these laws are.

There are multiple agencies involved in formulating and implementing policies regarding regulations on social media. This leads to a lot of overlapping.

India lags in regulating social media due to the volume—a concern raised even in the Law Commission’s Consultation Paper on Media Regulation[3].

Diverse Legal Systems

Social media platforms work across the globe. Even if a person is within the territory of one nation, the content consumed or produced goes beyond territorial boundaries. Different nations have different cultural background leading to different legal systems altogether. There may be some similarities but the interpretation and application of laws differ from nation to nation.

Formulating legal regulations which would comply with norms from all across the world whilst also being acceptable culturally around the world is almost impossible. This is to say that India can make guidelines for within its territory but it still won’t be able to monitor all the social media content. This is one of the biggest challenges of lying down such regulations.

As it is said that social media has made the world very small but this has made the process of formulation of laws to the online arena very difficult. There always exists one loophole or the other which allows a person to evade any accountability on their part.

Balance between Automated review System and Human Review

Almost every established social media platform has a system of automated review which world to oversee the content on the said platform. In case of any deviance from the guidelines laid down by the social media platform, the system is able to pick out such content, remove it and report it.

But such system is not necessarily reliable as it often removes legitimate content while keeping the objectionable content. So, it is necessary to have a balance between automated review and human review.

This again is another challenge. The legal framework for regulation and moderation of online content needs to have guidelines for both of them in such a manner as to strike a balance between them, all the while, making sure that their functioning is smooth, coordinated and efficient. The standards to supervise must make sure that there is no discrepancy which might end up working in favour of the objectionable content put out there.

Trigger Criticism from the Public

Another legal challenge would be the opposition from various stakeholders (the companies, digital industry, public). The reason is that any industry with government regulations—banking, healthcare, insurance, oil, etc. has created monopolies and stifled competition. This harms startups or smaller businesses. India needs more startups, innovation, entrepreneurships. Social media regulations will trigger exits and discourage new investments.

Most businesses function on end-to-end encryption. A vast number of them would prefer to exit the Indian market rather than letting government oversee every detail and violates privacy.

Moreover, weakening such encryption is in contradiction to the principle of data minimization which was endorsed in the data protection bill promoting privacy.

Moreover, as said earlier, such regulations would curb the freedom of speech and expression—which is more harmful to our democracy than anything.

SUGGESTIONS—SELF-REGULATION

Social media poses some problems for the society but it is has been argued that even in the absence of social media, fake news still was in play and would remain so forever, because it is unfortunately a part of human nature. It is difficult to predict it most of the times. Yes, social media has increased the speed of spread of such misinformation but it is not the root cause of the same.

It is said that such social media regulations must be left in the hands of social media platforms themselves. Self-regulation is not censorship but a way of laying down minimum standard of decency, ethics and accuracy while making sure to protect the rights of the individuals (users).

These platforms have an obligation to oversee the content being put out on their platforms or the purpose for which it is being used.
Moreover, survival in the market is important for any business out there. The more objectionable the content is, the more customers would leave the platform. No business would want to continue losing their consumers so in order to survive, these platforms would have no problem laying down a strict code and regulatory guidelines or adhering to the same.
For example, YouTube employed 10,000 employees globally to monitor and remove objectionable content. Around 8 million videos were taken down in 2018 in 3 months alone. About three-fourth of these videos were never even viewed. 81% of these videos were taken down instantly.
Another platform named Facebook has 30,000 employees for the detection and removal. 15 million pieces of violent content in 3 months in 2018. Over 99% of such content was removed automatically.

So, the social media platforms to provide content standards and regulatory guidelines to promote transparency,

To make these platforms liable in case of any failure to do so.
To provide an independent redressal mechanism to clearly lay down whether a content with respect to its context is objectionable. But in such cases, the burden of proof would be upon the government.

CONCLUSION

Social media has become an integral and inseparable part of our lives in recent times. It affects almost everyone—whether directly or indirectly. As with all the technological advancements, there are both the positive and negative sides to it. Recently, there has been a lot of discussion regarding the need for a regulatory framework on the social media platforms and online content. This discussion also highlights the legal challenges of doing the same.

It is not as easy to put regulations on the social media platforms because of the scale and the volume of online content. These platforms operate globally making it all the more difficult to monitor them. Moreover, the lack of any definitive character of what objectionable content is makes it much more difficult to provides such standards to regulate. Who decides what such definitions are, especially in a country like India with immense diversity in every aspect possible. Also, there is an argument that online discussions simply mirror the society and are not the root cause of evil in the world.

However, it cannot be disregarded that social media does play a role in speeding up the circulation of any fake news, violent content, etc. So, the need for a regulatory framework is not being dismissed altogether but it is believed that it would be possible to supervise such content by making sure the social media platforms themselves mandatorily lay down the guidelines for the same.

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