Who Governs Online Speech?
The two recent proposals favour the agenda of state (GAC) and industry (SRB), not the interests of people
Published in the Indian Express
Speech is at the fulcrum of opinion-making in democratic societies. The governance of speech - the determination of what speech is allowed, not allowed, promoted or discouraged - is thus an intensely political - and contested - exercise. However, the two proposals being mooted for governance of online speech - government appointed grievance appellate committees (GAC) and the industry self regulatory body (SRB) - seek to preclude this contest in favour of a unilateral government and industry agenda.
The Grievance Appellate Committees, as per the draft issued by the Ministry of Electronics and Information Technology (MEITY) will be constituted by the central government and will serve as an appellate body against decisions of various social media platforms. This is upfront government control. Not only has the Government not laid down a substantive policy with objectively defined contours of forbidden speech, the government wants the right to apply this highly subjective criteria on individual pieces of content and/or users. It is notable that the Government has already arrogated this right and routinely issues take down orders (without providing rationale) to social media platforms to take down or block content with minimal pushback from platforms. However, the national security, public order logic of takedowns does not apply to reinstatement of content/users proactively blocked by the platforms and it is likely that an additional purpose of the GACs is to provide an institutional avenue for the ruling party machinery to get a set of aligned accounts/content reinstated instead of just takedowns. It is evident that the GAC doesn’t meet even minimal standards of democratic legitimacy and should be scrapped.
The industry SRB proposal too lacks democratic legitimacy. Platforms have repeatedly shown themselves to be driven by profit motives which are often at odds with public interest. This is evident generally in the rampant amplification of disinformation and hate speech in a bid to maximise engagement even though it comes at the cost of the integrity of the information ecosystem; and specifically in India where US-based social media platforms have been far more casual in enforcement of their own content standards as compared to in their home country as indicated by disproportionately lower investments in language capability etc. It is thus likely that such a platform-led body will try and maximise the interests of the industry and individual platforms as opposed to the interest of the Indian people. Moreover notwithstanding Twitter’s plea in Karnataka HIgh Court against Center’s “disproportionate use of power” to issue “overbroad and arbitrary” content blocking orders, platforms’ track record in India of resisting government pressure has been very poor. For instance, a former safety head with Twitter has alleged in a whistleblower disclosure to US regulators that Twitter put a government agent on its payroll under duress. Thus, the SRB may act as a rubber stamp providing false legitimacy for covert government pressure while the binding nature of SRB orders will make it easier for the government to exercise pressure on a single lever to ensure compliance across all platforms. This will also take away an important differentiating factor between platforms wherein decisions taken are reflective of the platform’s values and are subject to employee and public pressure. The other real possibility is that such a body will be a nonstarter, racked by internal dissensions or non-compliance and thus pave the way for the Government GAC. This possibility is indicated by the divergent views of the constituent platforms even though the proposal itself was advanced by the joint industry front, the IAMAI.
It is evident that neither of the two proposals meet the minimum standards of democratic legitimacy and need to be rethought. Given the centrality of free speech in a democracy, no government or private body can have unmitigated right to make decisions regarding the contours of acceptable speech. The argument that an elected government has earned the executive right to determine standards of speech like other policy decisions is fallacious because speech is the only democratic way to contest the government itself. The governance of speech, including setting standards and implementation, must thus sit squarely outside the ambit of government. This can be achieved through a statutory regulator which would be answerable to the Parliament. In the meantime, there is an urgent need for transparency in the manner content moderation decisions are taken, including the takedown orders issued by the Government. These orders not only don’t offer a right of hearing to the content creator but are often completely secret, making scrutiny of government decisions impossible.
Finally, it is important to have a conversation about the larger role of social media platforms and their impact on democratic societies. The current proposals are too preoccupied with policing individual pieces of content whereas the impact of social media platforms on our information ecosystems is fundamental. Social media platforms now play an increasingly interventionist role in amplifying certain voices and our public debate must move forward to review structural issues affecting our information ecosystems instead of getting stuck in the minutiae of content moderation.
Download the full report: Politics of Disinformation