Fact-checking mechanisms may need to be put in place before platforms allow publication of content, says Chandrima Mitra, partner at DSK Legal
NEW DELHI :
The controversy surrounding President Donald Trump’s executive order that takes away the immunity enjoyed by social media platforms like Facebook and Twitter in the US puts the spotlight back on India’s social media regulations. With the government yet to notify the draft guidelines, Chandrima Mitra, partner, DSK Legal, talks about whether the platforms should be treated on a par with traditional media. Edited excerpts from an interview:
Will the Trump executive order have repercussions for India?
The executive order has widely been talked about worldwide and not just in India. The Indian courts have been taking cognizance of fake-news “steroid-blogging" on platforms like Twitter, Facebook, etc, where hate-speeches/comments are made for achieving a political goal or out of frustration, and are likely to have repercussions on how social media platforms may operate in India in future.
Considering the fact that most of the popular social media platforms are based in the US, the effect of the executive order on such social media platforms in the US will have an impact globally and depending on whether the executive order stands the test, the social media platforms may formulate policies which will apply to their presence in global jurisdictions. Currently even the social media platforms, are diametrically opposite in their approach towards censorship. There always needs to be a balance between censoring social media content and the right to freedom of speech.
Indian courts have repeatedly held freedom of speech on a very high pedestal but the freedom comes with reasonable restrictions. Therefore, the approach in India will have to be one where constitutional provisions for free speech and expression are used in tandem with other legal provisions related to publisher accountability, instead of skewing the balance in favour of one over the other.
In India section 79 of the Information Technology Act, 2000, provides the necessary shield to the intermediaries—social media platforms in this case—against liabilities arising from any third-party information made available by them on their platform. However, it is to be remembered that section 79 while being a “safe harbour" provision is not an unconditional immunity.
Should technology platforms like Twitter, Facebook and Google be treated on a par with other media organizations since they also carry news?
Social media’s reach is much wider than the traditional media’s. Access to smartphones and better bandwidth connectivity have increased the social media presence multiple times over. Social media platforms are today extremely influential. So it is necessary that when social media is used for disseminating news or information, the platforms should be treated on par or subject to a higher standard of care and accountability as compared to traditional media organizations. Freedom of speech and expression in India is also coupled with duty of responsibility and accountability. Freedom of speech and expression under Article 19(1) of the Constitution goes hand-in-hand with reasonable restrictions that may be imposed under Article 19(2). It would be beneficial for India to look at the regulation standards implemented by different countries in order to introduce guidelines which form a balance between freedom of speech and accountability of social media platforms.
How will the lawyers deal with the Trump’s executive order in the Indian context?
The lawyers in the Indian context will have a difficult task to justify the role of social media sites as purely platforms and not publishers. The moment the platforms look into censoring content, they are no longer neutral platform but may be considered in the capacity of publishers. Indian courts have held freedom of speech on a high pedestal but the freedom also comes with reasonable restrictions. Fact-checking mechanisms may need to be put in place before the platforms allow publication of content and therefore the consequent liability will need to be placed.