The power wielded by social media platforms is now legendary.  But silencing the most powerful man on earth? That is something else! Press reports on the unprecedented actions of suspending US President Trump's accounts by social media giants on Thursday may have come as a shock to the world. Especially as this was the president's favourite method of connecting with his people (and the global public at large). This historic moment makes it moot for the Ministry of Electronics and Information Technology (MeitY) to reconsider its proposed construct of intermediary liability.

To set the context in India: it was in 2015, in the Shreya Singhal judgment, that the Supreme Court opined that online content could be taken down from intermediary platforms following a court order or at the behest of the government. This afforded social media platforms protection from liability related to user-generated content. Thereafter, MeitY proposed amendments to the Information Technology (Intermediaries Guidelines) Rules, 2011 by including provisions such as mandatory upload filters and traceability of messages. Before India ushers in an era of pre-censorship, let's consider how social media platforms are addressing powerful political statements in the context of their community guidelines.

An e-commerce platform, while suspending Trump's online merchandise sites, has made a strong statement that it does not tolerate actions that incite violence. The President's recent actions are alleged to have violated the platform's acceptable use policy, which prohibits promotion or support of organizations, platforms, or people that threaten or condone violence to further a cause.

In upholding free speech, a popular networking site did not remove Trump's inflammatory posts, including that of May 2020 suggesting protesters in Minneapolis could be shot; or subsequent posts spreading misinformation about voting by mail. However, on November 5, 2020, it banned a group called ‘Stop the Steal' which was organizing protests against the presidential vote count. This week's actions reaffirm its commitment to follow through on these community guidelines.

Under current Indian law, Section 79 of the Information Technology Act, 2000 (IT Act) offers conditional safe-harbour protection to intermediaries for third-party content on their platforms, providing  they are mere conduits that give only access to communication systems and refrain from transmitting the content. Intermediaries are expected to have privacy policies and adhere to the due diligence prescribed under the Intermediaries Guidelines Rules. In the Indian context, would actions such as silencing the President be considered adequate due diligence on their part?

What MeitY proposes is to go beyond this due diligence expectation and adherence to community guidelines. It aims for mandatory deployment of automated filters for proactive monitoring of content on such platforms. Does this proposal address the absence of (as per the Supreme Court) the requirement for intermediaries to apply their own mind for judging legality of user content? Would this step, quoting the Delhi High Court view in My Space Inc. v. Super Cassettes Industries Ltd. and Kent RO Systems Ltd. v. Amit Kotak, have a chilling effect on free speech on the Internet?

In addition to diluting free speech, MeitY's proposals could negatively impact the privacy of users, as automated filters run through all content uploaded on a social media platform. For example, in the case of K. S. Puttaswamy v. Union of India, where informational and communicational privacy were declared as fundamental rights under the Indian Constitution, legitimizing pre-censorship tools would surely fall foul of the overall right to privacy in India.

Recognizing the influence of social media on society, from electoral democracy to mass movements on subjects such as sexual harassment, MeitY is also proposing introduction of the concept of traceability of messages. Traceability of users of end to end encryption (E2EE) platforms, such as WhatsApp and Signal, is a challenge as the intermediary does not have access to the content that flows through their platform. Introducing a traceability feature for E2EE services will require breaking secure encryption; and this would once again lead to compromising individual privacy.

In MeitY's defence, it is clear that the absence of any US laws regulating government speech on social media left the door open for Trump's influence to spread propaganda unbridled. Globally, the lack of meaningful regulation in the field has left social media platforms with little or no incentive to regulate their lucrative platforms, rein in the spread of falsehoods, and moderate individuals in power (in government or otherwise). MeitY is, understandably, trying to plug that loophole in India. At the same time, it begs the question:  is it going too far?

While following community guidelines, social media platforms walk the tight rope of balancing free speech with an eye on undesirable content. MeitY needs to actively engage with them to consider how its proposed changes will affect the future of Internet in India. Will it censor free speech? Dilute privacy? Limit the fundamental rights of Indians? One needs to reassess the proposal for social media verification (in the Personal Data Protection Bill) which, when read with concepts of upload filters and traceability, has the wherewithal to curtail the Internet's free and open space for users.

Drafting law relating to intermediary liability, in light of the proactive silencing of the US President by social media platforms, begs global collaboration between technology companies, civil society, academia, and governments. This will ensure that consequent policy developments do not result in the attrition of users' digital rights.

Undoubtedly, the violence witnessed in the US capital is a direct fallout of the fabrication, conspiracy theories, and hate speech that have become acceptable on social media platforms. But how is this offence viewed vis-à-vis  the intermediaries? Are they to be regarded as accomplices or abettors? Or would their unprecedented action be applauded?

While regulation around harmful content is essential, social media platforms cannot be expected to take on the President of the United States! Interestingly, that is exactly what they did.

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