Do not let developments around the government serving a notice to Twitter on May 24, 2021 distract you from the larger points that need to be addressed in this debate around governance, free speech and sovereign power. The expression of regulation, the manner in which it has been done, or even the general outcry around it cannot be the window through which we examine the rise, the power and the arrogance of transnational tech giants. In the short term, this will be the outrage of the day and will die out. But the larger debate must not. It affects India of course, but its repercussions will echo among consumers and governments across the world. What emerges from this debate will be a global standard of regulating mega tech companies.
The ideological whims of commercial actors cannot become the operating template, neither for India nor for rest of the world. But the recent behaviour of Twitter, under which it labelled two May 18 tweets (this one at 11:05 am, and this at 11:08 am) of BJP spokesperson Sambit Patra, “Manipulated media,” is attempting to do just that. While an FIR has been filed against Patra, as the Youth Congress National Campaign In-Charge of Indian National Congress Srivatsa tweeted, and investigations are underway to evaluate the authenticity of Patra’s tweets, Twitter’s pre-labelling is a manipulation and attempt to influence the investigation at worst and ideological smugness at best. Others who have been similarly tagged include BJP Rajya Sabha MP Vinay Sahasrabuddhe, BJP national social media in-charge Priti Gandhi, Andhra Pradesh co-incharge Sunil Deodhar, BJP media panellist Charu Pragya and BJP Delhi general secretary Kuljit Singh Chahal.
Twitter could be right. The tweets could be based on manipulated information. And, as such, the application of its “Synthetic and manipulated media policy” would be valid. The policy has three parts—whether the content is manipulated, whether it has been shared in a deceptive manner, and whether it is likely to impact public safety and cause serious harm. As a self-regulating policy, based on user requests to end hate and/or violent speech, for instance, Twitter is perfectly within its rights to do as it pleases. As do Facebook, Instagram, YouTube and other transnational online platforms.
But it could be wrong. If the investigation into Patra proves that he is right, Twitter would have jumped the gun. The government has reportedly written to Twitter to remove the manipulated media tag, as the “matter is pending investigation before law enforcement agency” and asked it to “not interfere in the investigation process”. Most important, the informal note makes the point that content moderation puts a question mark on Twitter’s status as an “intermediary”. In other words, the government of India has told the ‘government’ of Twitter to follow the sovereign law, not its whims.
Political Developments in the US and Twitter Policy
Perhaps, Twitter is emboldened by the actions of US President Joe Biden. Ten days ago and 114 days into his office, Biden revoked a law that questioned the selectivity of social media conglomerates while virtue signalling to their users, and strengthening their ideological preferences that censored non-aligned ideas, politics and people out of their platforms. This was a year-old law signed by former President Donald Trump on May 28, 2020 through Executive Order 13925—Preventing Online Censorship. It confronted social media giants Twitter, Instagram, Facebook, and YouTube (TIFY) seeking free speech protections under the First Amendment to the US Constitution, a foundation of and sacred to American democracy.
In a nutshell, Trump’s Executive Order called out online platforms on two counts. First, domestic—selectively placing warning labels on tweets in a manner that reflected its political bias. Here, he illustrated Twitter’s selectivity behaviour. And second, global—platforms profiting from and promoting the “aggression and disinformation spread by foreign governments like China” by creating a search engine that blacklisted searches for “human rights,” establishing research partnerships in China that provide benefits to the Chinese military, and amplifying Chinese propaganda. Trump’s law captured the angst of users not aligned with Twitter’s ideological leanings and pulled the plug from protections granted to media companies like The New York Times to such platforms. You can either be a media company or an online platform, the law effectively stated.
After Trump lost the elections, Twitter threw out all pretensions of neutrality and permanently deplatformed him, the conflict of interest notwithstanding. The justification of that deplatforming reads like an editorial call: “Our public interest framework exists to enable the public to hear from elected officials and world leaders directly. It is built on a principle that the people have a right to hold power to account in the open,” it stated. “However, we made it clear going back years that these accounts are not above our rules entirely and cannot use Twitter to incite violence, among other things. We will continue to be transparent around our policies and their enforcement.”
India must not allow this policy reversal of the US to infiltrate into its law-making and justice-delivery processes. If Patra is guilty, he will be held accountable by the Indian investigators and will fight his battle in Indian courts. The pretentious ‘government’ of Twitter has no role here. No real government, least of all the Indian government, will accept such interference. Predictably, the Special Cell of the Office of Deputy Commissioner of Policy has sent a notice to Twitter: “In the course of investigation it has come to our knowledge that you are acquainted with the facts of the matter and are in possession of information with regard to the same. You are therefore requested to be present in the office of undersigned for the purpose of investigation with all the relevant documents.”
Five Factors for Consideration
While this game will continue, there are some existential questions Twitter, in particular, and online platforms, in general, need to follow on their part. But that doesn’t end the debate—as consumers and user-stakeholders in the sanctity of free speech and the platforms that purport to support it, this affects and impacts us. What impacts citizens will influence the most important policy actor—governments. In this three-stake field of citizens, companies and governments, there are five debate points to engage.
One, are online services such as TIFY media companies or technology platforms? If they exercise editorial choices, including deplatforming or labelling, they are media and will face weak accountability through India’s insipid libel laws and defamation pretensions. If they are platforms, they will have to allow all kinds of opinions, irrespective of whether they are ideologically or politically aligned to theirs or not. Of course, issues such as hate speech and violent speech will need to be curbed—in tune with Indian, not US, laws.
Two, India is in a constant state of elections. In 2022, two major states will elect new legislators and governments, while in 2024 India has the general elections. Any sort of manipulative behaviour by TIFY will mean influencing behaviour and infiltrating India’s democracy. This is what the US accuses Russia of doing. Now that the US-Russia narratives are before us, India will not tolerate it. Of course, if TIFY choose to be “media,” they will and can exercise the freedoms granted to them and push their politics and ideologies.
Three, should the government sit back and allow ideology as usual, or should it take action? Remember, the government of the day may not be in power tomorrow. As the Trump-Biden experience shows, today’s laws can be changed tomorrow. Further, if the principle is to regulate, it must be based on first principles of citizen interests. If anyone is celebrating the tags today because it serves their political or ideological leanings, they will come back to haunt tomorrow. A first principles approach makes it easy to draft regulations.
Four, if India opts to go for intervention, what sort of regulation do we want—rules-based or principles-based? For the scale that these transnational platforms offer, a rules-based order will be impossible; and if attempted will be a constant work in progress. It will also be easy to dispense justice on, as companies will cite precise clauses and the letter rather than the spirit of the law. On the other hand, if India goes for a principles-based regulatory structure, and place the spirt of the law above precise letters, it will deliver ease of doing business but in a confrontation, will be left to the preferences of a judge.
And five, we need to decide whether TIFY deliver private goods or public. Structurally, they are private companies; they are listed. But effectively, their power has gone beyond economics. The deplatforming of the world’s most powerful man shows that, “In effect, Mark Zuckerberg and Jack Dorsey just fired a shot across the bow of lawmakers,” wrote Vasant Dhar. “While they make the rules, Zuckerberg and Dorsey just showed them who wields the ultimate power.” He talks about nationalising. In India, this is an idea fraught with failure. But a middle ground could be carved out by placing a compliance officer who reports not to the CEO or the Board of TIFY but to a government-enabled oversight mechanism comprising experts in technology, governance, consumer rights and corporate law. Perhaps, we need a new category for online platforms that is public as well as private, one that allows for profits as well as expression.
This debate is not restricted to or engaged by New Delhi alone. Already, Berlin and Paris are concerned participants . “The chancellor sees the complete closing down of the account of an elected president as problematic,” German Chancellor Angela Merkel’s chief spokesperson Steffen Seibert said. Rights to free speech “can be interfered with, but by law and within the framework defined by the legislature—not according to a corporate decision.” France went a step further. “This [deplatforming by Twitter and Facebook] should be decided by citizens, not by a CEO,” Junior Minister for European Union Affairs Clement Beaune told Bloomberg. “There needs to be public regulation of big online platforms.”
Other democracies will join in sooner rather than later. Yesterday, Trump was deplatformed; today, Patra is being labelled; tomorrow, any leader anywhere in the world could have to kneel before the power of these ideologically selective and politically interfering platforms. These will include leaders who are conveniently cheering these actions today and, thereby, granting private firms a greater legitimacy than governments, and more power than sovereigns. This is not acceptable, certainly not in India, definitely not in the 21st century. The ‘government’ of Twitter has to follow the government of India, period.
This article was first published on ORF.
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