India entered the golden age of mass media after the economic liberalisation in 1991. But the private sector continued to focus on mature markets and the bulk of rural India remained in dark-- both in representation and accessibility in the mainstream media. This “great Indian digital divide” has now been partially reduced with the number of internet users in rural India now being approximately 10% more than those in urban areas.
This 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. The social media has now risen to become the primary platform for information and communication replacing the traditional media.
Social media promised to democratise the entire media space in India. With mass production of and resulting access to cheap smartphones, every “consumer” of information aspired to become autonomous and sovereign. The chief debate in the field of media studies shifted from its exclusive focus on ownership structures to audience choice and agency.
While the ownership of social media platforms turned into a growing concern, the question of who “owns” social media was left open. Over the years, however, social media has attracted a lot of criticism for fake news, hate speech, misogynistic and anti-minority content and most importantly its manipulative impact on electoral democracy.
In this context, the dilemma faced by democratic countries across the world can be stated thus: do we need to regulate social media? If yes, how?
In India, extant laws such as the Indian Penal Code and Information Technology (IT) Act hold individuals responsible for their online behaviour. Recently, India has notified a stricter guideline i.e. ‘The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’ wherein the ‘originator’ of any unlawful message has to be identified.
As put up by Electronics and IT Minister Ravi Shankar Prasad, the basic essence of the latest guideline is ‘soft-touch oversight’ to deal with a prominent issue such as spreading of fake news, abuse of platforms to share morphed image of women and contents related to revenge porn or to settle corporate rivalries. For social media platforms like Twitter, Facebook, etc. these guidelines remove the ‘safe harbour’ provisions provided under Section 79 of the IT Act if the platforms do not comply with due diligence norms as it limits their liability over content that users posted on their platforms.
‘Self-regulation’ was deemed as a solution as long as social media was a marginal player. If social media content comes in conflict with the law and, in some cases, even turn to manipulate public opinion for vested interests, the growing consensus seems like self-regulation has failed miserably. The new guidelines require social media companies to report objectionable content to the government. However, this reporting and reliance on the government alone to regulate social media may potentially compromise the privacy of users.
The growing and the close intersection of social media and law need fresh thinking and innovative ways of regulating content online. Given increasing convergence with regard to organisation and ownership of different modes/types of media, a unified approach to regulation may be considered wherein an independent agency appointed by the enactment of regulatory laws and self-censorship might provide a way out of the enforcement dilemma.
However, much of this legal infrastructure is limited by national boundaries. India is not the only country that is facing such a dilemma and several countries are considering regulating social.
Firstly, the countries need to come together under the aegis of the United Nations to form a module like World Health Organization (WHO) for a coordinated measure to fight the menace. The individual governments should tax the funding of these platforms proportionate to their social media penetration.
Secondly, misinformation and deliberate conspiracies such as QAnon, Anti-vaccination, anti-5G, etc. can impact a wide global population irrespective of its origin. Technologies such as Deepfake are evolving at such a rate that they can develop a whole new genre of social threat. The writing on the walls is exactly similar to how the world had to come together to create the unified Basel framework for its interdependent financial institutions.
Thirdly, 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.
As stated in the UN special report in 2018 on regulating user-generated content, “ Companies should recognise that the authoritative global standard for ensuring freedom of expression on their platforms is human rights law, not the varying laws of states or their private interests, and they should re-evaluate their content standards accordingly.”
How to address the issue about social media regulations would require inputs from nation-states, internet companies and technical community and also voices representing users’ rights and civil society. With democracy being at stake, the future will be governed by how regulators and companies act today.
Tishya Pandey
The author is a TMT lawyer. She can be reached at tishyapandey.adv@gmail.com