Who regulates online speech?
As Twitter takes the Centre to court, India must strike a balance between rights and restrictions
Social media company Twitter has taken the Union government to court for its orders to remove tweets and disable user accounts. The government’s orders were mostly against content posted last year at the height of the agitation against the farm laws. This included posts where the illegality was evident — particularly objectionable was a hashtag aimed at the Prime Minister during the protests — but also other content that would fall within the expanse of free speech. Twitter complied with some of the orders, while refusing to act on some others, setting off a confrontation that now appears headed for the courts. The latest trigger for the company’s move, according to reports, was a purported letter from the government warning that Twitter stood to lose its intermediary status and its executives faced prosecution if it continued to resist orders.
For years now, there has been a vexing debate over who regulates online speech: A private (in this case, a foreign) entity, or a government elected by the people. On the surface, the answer is simple: Regulation should be through robust democratic frameworks and rules. These frameworks are imperative since the harms from online speech have become increasingly real, even fanning tension and triggering riots in parts of the world. Much of it has been the result of policies and processes by these companies, which have grappled with social, political and economic realities that Silicon Valley has been alien to. It is well within the domain of a nation-State to thus regulate these processes and policies, and have the final say on online speech, which invariably shapes offline realities on their soil.
On the flip side, however, content moderation influenced by authorities can amount to censorship. In India’s case, legal experts have long pointed out that the wording of some laws, especially Section 69(A) of the Information Technology Act, has been misused by the administration of the day. The government, additionally, does not make public its orders or allow for a user to be given a notice, denying them a hearing. As tricky as these questions are, there are now models that India can look to. As one instance, the Digital Services Act that European nations adopted this week makes it mandatory for entities ordering takedowns to disclose their orders. This is an approach India must consider, even as the courts now wade into a territory that warrants a fine balance between rights and restrictions.