Forget the war of words – mostly one-sided – that previous Union Law and IT Minister Ravi Shankar Prasad was having with Twitter over the microblogging site’s failure to comply with the new IT guidelines. It is now clear Prasad and his attempts at martyrdom were misplaced.
Yesterday’s judgment of the three-judge bench of the Supreme Court in Ajit Mohan and others versus Legislative Assembly National Capital Territory of Delhi and Others, gives us enough indication to suggest why Prasad, in his mission to teach Twitter a lesson for refusing to follow the government’s diktat, kept on missing the woods for the trees.
For instead of trying to insist on social media sites like Facebook, WhatsApp and Twitter appointing grievance Officers, etc, to retain their intermediary status, the focus of the government should have been to make these platforms safer for their users.
But, instead of this happening, the government’s ill-defined rules just made it possible for these platforms to cite the controversial IT guidelines to skip liability for allowing their platforms to be used for hate speech, death and rape threats to women, activists and anybody with a contrarian point of view.
The Supreme Court judgment exposes platforms like Facebook and WhatsApp for being business entities that profit from hate cloaked in the name of free speech.
The bench of Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy has correctly pointed out that, with its claim “to be the most popular social media with 270 million registered users”, Facebook’s wide reach “cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinions.”
“Without undermining the role performed by Facebook in giving a voice to various sections of society across the world, it has to be noted that their platform has also hosted disruptive voices replete with misinformation. These have had a direct impact on vast areas of subject matter which ultimately affect the governance of States. It is this role which has been persuading independent democracies to ensure that these mediums do not become tools of manipulative power structures,” the judgment authored by Justice Kaul reads.
The bench is also on-point in its observation that platforms like Facebook are “by no means altruistic in character but rather employ business models that can be highly privacy intrusive and have the potential to polarize public debates”.
“For them to say that they can sidestep this criticism is a fallacy as they are right in the centre of these debates,” the bench notes.
More importantly, the judgment also calls out the different yardsticks that social media platforms like Facebook have vis-à-vis their responsibility while doing business in India and elsewhere.
“The business model of intermediaries like the petitioner (Facebook) being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the United States of America, Facebook projected itself in the category of a publisher, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience,” the judgment spells out Facebook’s double-standards.
The apex court also refuses to allow Facebook to hide behind its claim that it is “merely a platform posting third party information and has no role in generating, controlling or modulating that information”.
“The endeavour to hide behind such simplistic models have been found to be unacceptable by the UK Parliament. The House of Commons Digital, Culture, Media and Sport Select Committee in its 2018 Report had opined that this would amount to shirking of their responsibilities with respect to content regulation on their site… The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content,” the bench notes.
And that is where the cue lies for the Narendra Modi government. It needs to push the social media giants to set up a transparent, independent-of-government-control mechanism to ensure a “third-party” content that is aimed at dividing the society or used to bully or silence others is immediately removed. Facebook, Twitter can begin by ensuring nameless, faceless entities aren’t allowed to get away without action when they issue rape and/or death threats or use the platforms to spread fake news or disinformation aimed at dividing the communities.
The Supreme Court has sent out a categorical message, and the ball is now in the court of the government and social media platforms to do the rest.