A balance between freedom of speech and penalising intermediaries is the need of the hour
Social Media - a buzzword in millennial circles and often the recipient of government's fury. The usefulness of platforms like Twitter and Facebook is undeniable and they have also contributed to the advancement of democracy and fundamental rights like freedom of expression, movement, trade and profession. However, a single platform cannot become the sole arbiter ofthese rights. As India cracks down on microblogging sites for their noncompliance with its newest pursuit to mitigate false information, Twitter finds itself caught in the crossfire. Twitter lost its status as an intermediary platform along with its coveted legal shield for third party content for failure to comply with new IT rules. India's wrath has been specifically directed towards Twitter as it is the only platform that has not adhered to the new laws.
It remains to be seen whether this development will leave a permanent scar or be lifted once Twitter adheres to the rules. The government and Twitter have been at loggerheads owing to the latter's compliance issues with rules that mandate platforms to increase due diligence and vigilance with respect to objectionable content and be held accountable for the same. Pursuant to Section 79 of the Information Technology (IT) Act, any intermediary shall not be held legally or otherwise liable for any third-party information, data, or communication link made available or hosted on its platform. Simply put, this means that a platform is safe from any legal prosecution brought upon due to the message being transmitted from point A to point B as long as a platform acts just as the messenger and without interfering with its content in any manner. In addition to this, Twitter collects data, influences public perception, and opinions through algorithms that decide what people will see and listen to. Thus, the platform is known to selectively push content on the basis of useractivity, profile, demographic attributes, etc.This has been construed by many as a deliberate manipulation of information flow, albeit under the guise of better user experience, and is considered nothing but colonisation of digital space. It is common knowledge that several social media platforms may have violated governing legislations under the guise of freedom of speech and expression, thus necessitating a dire need for laws that address the evolving problems pertaining to questionable third-party content on these platforms. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021' is a "soft-touch oversight" mechanism to deal with issues such as persistent spread of fake news, abuse of these platforms to share morphed images of women, and contents related to revenge porn or to settle corporate rivalries. Evidently, these Rules are neither full-proof in curbing the root cause of the problem nor keeping up with the changing shades of offences being committed thereon. The IT Act and Rules, although well-intentioned, do not bring adequate clarity on the responsibilities of intermediaries along with third parties and users. The policy guidelines were introduced to address content that goes directly against guidance on Covid-19 from authoritative sources of global and local public health information. Thus, Twitter was quite emphatically trying to curb misinformation that is so prevalent on the microblogging sites these days.But misinformation labeling isnot the only topic that is the Achilles' heel. The new rules dictate that a company like WhatsApp and Twitter should be able to track down the 'first originator' of any objectionable article that Indian government deems threatening to internal security. It goes without saying that striking a balance between freedom of speech and penalizing intermediaries for overlooking their responsibilities is the need of the hour.
(The writer is Managing Partner at KS Legal & Associates. The views expressed are personal.)