For Facebook and Twitter, the changes to India's IT (Amendment) Act is just what the doctor ordered — or not

• Facebook and Twitter have come under the scanner for how they regulate content on their platforms in India for two separate incidents in the past three months.
• The threat to democracy lies in the grey area where freedom of speech ends and crosses over to ‘hate speech’ territory.
• Lawyers told Business Insider that India’s IT (Amendment) Act, 2018, which has been pending for nearly two years now, is far from perfect.

In India, Twitter and Facebook are facing two sides of the same coin. While one is under fire for removing content without being asked to, the other is being asked why it didn’t remove content that was ‘hate speech’.

The power which social networks have over democracies worldwide has come under global scrutiny, whether that’s in India, the US, Australia, or Brazil. The 2016 US election was only one example of how a social network, if manipulated, can influence the behaviour of people across an entire nation.

At the center of it all is the content they peddle and what they choose to remove — the battle between freedom of speech and where it crosses the line to become ‘hate speech’.

“Companies will be better off if they stop this narrative of how they have their own community standards. They can cite the law and explain why they removed a post,” Mishi Choudhary, an online civil liberties activist and the Legal Director of Software Freedom Law Center in New York, told Business Insider.

According to her, companies like Twitter and Facebook have ad-hoc policies that they change on their own or under the pressure of local governments. There is no standardisation.

The solution proposed by India, which has been on the docket for nearly two years now, is the Information Technology (Amendment) Act, 2018. It no longer allows Facebook, Twitter or any other social network to operate as an ‘intermediary’.

The inner workings of the IT (Amendment) Act, 2018
The first part of the IT (Amendment) Act, 2018, makes it mandatory for social media apps to trace the origin of content on their platforms — upon receiving a court order. It is an important aspect that has been clarified, according to lawyer Harsh Walia, a partner at Khaitan & Co.

“This specific provision may bring much respite to the social media companies as the term “actual knowledge” was a subject of debate/judicial interpretation so far,” he told Business Insider.

The second part of the IT (Amendment) Act, 2018, is where content regulation comes in. If social networks are no longer ‘intermediaries’, they will be accountable for what is circulated on their platforms. They will be required to deploy technology or appropriate mechanisms to ‘proactively’ identify and remove access to unlawful content.

This is what Twitter already did with Prashant Bhushan’s tweets — and why it could be a problem was highlighted in the letter by the Internet Freedom Foundation (IFF) sent to the social network protesting the move.

“This biggest issue is that the term “unlawful” has a broad connotation and social media companies should not be expected to know the intricacies of all statutes to determine what may be lawful or unlawful,” explained lawyer Harsh Walia, a partner at Khaitan & Co.

What’s the alternative?
One way to standardise the process by which content is regulated and reduce government influence is to have human rights law become the underlying framework. It would also take away the power from social networking platforms to decide what is and isn’t hate speech, according to Choudhary.

“Human rights are agreed upon globally, and they also enable transparency. Social networks can cite the law and say why they removed a post. Mark Zuckerberg shouldn’t have to justify his actions — why should he have the power,” she said.

The amendment also doesn’t spell out specific consequences — any kind of liability or punishment — for failing to adhere to the requirements. According to Walia, non-compliance with these obligations will lead to a situation where the safe harbor granted to these platforms will no longer be available to violators.

“This could expose them to consequences stipulated in respect of the relevant content-related offenses,” he said.

India takes center stage
“The arguments and the level of scrutiny this time around is different because it’s the US election year. The Indian elections may not have mattered for social media platforms, but the 2016 election changed the conversation in a very big way,” said Choudhary.

The problems of how social networks are operating in India may have pulled it to the spotlight due to the upcoming US elections but India — as the world’s largest democracy — can poise itself as a leader, according to Choudhary.

“India will have to rise above party lines. It will also have to consider that governments can’t actually pressurise companies to change their policies as and when they deem fit,” she said.

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