Right off the bat, we need to appreciate that moderation ofspeech (by any means) is a genuine requirement. This is so because it is innatein human nature to behave badly when there is less accountability ortraceability.
Further, mass media, by definition reaches all over and hasthe potential to change public perception about events.
To temper the power of traditional mass media likenewspapers, radio stations, and the like were legally obligated to proactivelymonitor the content they put out on their platforms.
However, when the Internet and the Web were being created inthe Silicon Valley in the USA, the same problem as to the filtering of thecontent put out on the platform presented itself.
However, this time there will be no handful of writers andeditors putting out content, but millions or more common people all over theworld, pushing out content with little accountability.
The result of this is all too well-known – in addition to aminority of content that is relevant and useful; a ton of useless, irrelevant, provokingcontent commonly called trolling.
This point is elucidated in a Saturday Night Live sketchtitled Internet Comments Talk Show.
How to proactively monitor content put out by so many userson a fast-enough basis? The only solution was to follow the model of a newspaperwith every user as a writer and an extensive army of paid moderators working 24×7.
This was and is, of course, economically unviable and apotential killer of freedom of speech. Thus, the pioneers of the Internet andthe governments found a solution.
The solution was that the Internet companies will beconsidered to be blind to the content being put out on its platform by othersunless brought to attention by a person, non-governmental entity, or thegovernment.
Then, the company will take action on the same.
This is what legal immunity to information technologyintermediaries in the Information Technology (Intermediary Guidelines andDigital Media Ethics Code) Rules 2021 means.
Quoting Section79 in The Information Technology Act, 2000, “Notwithstanding anythingcontained in any law for the time being in force but subject to the provisionsof sub-sections (2) and (3), an intermediary shall not be liable for any thirdparty information, data, or communication link made available or hosted by him.”
There is no denying that the social media is, in thecontemporary times and the future, an indispensible and essential part of thesociety. But there has to be some accountability unless we want the world toturn into Hobbes’ war of all against all.
The Indian government is asking social media companies to doa couple of things and the latter are cooperating on many of the points.
One requirement is that offending content, once notified, beremoved within a reasonable time period. The social media companies are okaywith this and are meeting the requirements of establishing physical offices andpersons responsible for round-the-clock availability regarding any offending content.
To do this, the Indian government derives power from Section69A in The InformationTechnology Act, 2000. Quoting from this section, “Power to issue directionsfor blocking for public access of any information through any computer resource”
However, the contentious issue is with the requirement ofallowing government organizations to ask social media companies for the “firstoriginator” of any piece of content.
In other words, every message ever sent will be stored withall the profiles it has passed through, so that when a time comes that theIndian government deems it necessary to know who created and dispatched anygiven message, the social media company can pinpoint to that person.
Also read: Twitter Account Verified: Now you can also get ‘Blue Tick’ on your profile like Bollywood celebs
The now-prevalent trend of fake news has fuelled the Indiangovernment’s actions to bring order to the chaos for these free-for-all andgratis mass communication systems like WhatsApp, Facebook, Instagram, andTwitter.
To achieve its goal, the government is likely to press intoaction Sub-section (1) ofSection 79 of The Information Technology Act, 2000, “When an intermediaryfails to observe these rules, the provisions of sub-section (1) of section 79of the Act shall not be applicable for such intermediary and the intermediaryshall be liable for punishment under any law for the time being in forceincluding the provisions of the Act and the Indian Penal Code”
Now, if the social media companies choose to not comply withthe rules, then their legal immunity can be withdrawn and that opens up a wholenew world of complexity and expenditure for these for-profit companies withshareholders.
Then, the platform will be considered cognizant, a willingpartner and responsible for any offending or illegal content on their platform.
This tug-of-war between the state and the for-profitcompanies with users’ privacy and their use and misuse of the technology hangingin the balance will be instrumental and interesting to watch out for.
The question to ask ourselves as a free and possibly indiscriminateuser of these social media apps is that what we will do when these companieshave their legal immunity withdrawn and take actions to keep themselves on thesafe side.
Most probably the users, especially in the contemporary pay-with-attention-not-casheconomy, do not care about what happens with the company whose product they areusing. They will jump ship to a new shiny app the moment their routines on theapp are disrupted.
But this time it may not be possible because the scope willinclude all apps operating in the nation.
Also read: Gamers Rejoice: PUBG is officially back
To be clear, all apps including the well-known ones namelyWhatsApp, Facebook, Instagram, Twitter; or the challengers namely Signal,Telegram; or any other app will have to either put in place infrastructure toidentify “first originator” or else lose legal immunity.