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Home >Opinion >Columns >The US may be blazing a trail to regulate social media

In the aftermath of the last US presidential election, much was made of the use of social media sites such as Facebook to a candidate’s advantage. Subsequent revelations alleged that consulting firms and inimical foreign governments had been involved in mining social media for personal information and had used this to aim messages at people that potentially influenced the result.

In the 1980s, the penultimate decade of US newspaper ascendancy, hundreds of news organizations existed to serve the country, as they still do in multilingual India. The rise of social media put paid to that. One would have thought that democratic access would have opened up to a large variety of news from all corners of the globe, but the hard fact is that the internet has pulled the other way. There are far fewer news outlets now than there were some years ago.

The problem is that social networks don’t have journalistic norms. Anyone can say anything on any topic. Almost everything is an opinion, but not clearly labelled as such. As a result, much of the “news" available on these platforms is biased. Also, the spread of false and malicious news at warp speed can stoke violence. We have already seen this in India, when WhatsApp came under scrutiny after a doctored video that originated as an innocuous advertisement in Pakistan spread and stoked violence.

“Wild west" attitudes have since calmed down slightly, thanks to fact-check revelations by real journalists and pressure from politicians the world over. Under America’s 1996 Communications Decency Act, online platforms have the power (and immunity) to block posts that they deem lewd, excessively violent, inimical to others’ interests, and so on, even if the post is otherwise protected under US free speech laws. Earlier this year, I wrote in this column about how social media platforms seem to be policing themselves ahead of what might well be a Joe Biden presidency. (https://bit.ly/2Hgxw4m )

I may have been wrong. It isn’t just the prospect of a President Biden. Politicians from both sides of the divide are showing a willingness to externally police and monitor social networks, rather than leave the job to these platforms. US President Donald Trump recently asked for Section 230 to be repealed in a tweeted response to Facebook’s decision to take down unverified claims of corruption by Biden’s family. Last week, adding fuel to this fire, associate justice Clarence Thomas of the US Supreme Court referenced the whole of Section 230 in a decision on another matter that had relied on a rare interpretation of it to deny immunity in Malwarebytes Inc. vs Enigma Software Group USA, LLC. Associate justice Thomas agreed with a judicial decision taken to turn down an appeal on the case, which had been decided in a lower court, but in his written opinion, he launched into a musing on Section 230 in general, arguing that US courts had interpreted it too broadly. In his view, its provisions had been used by US companies to censor free speech beyond the original intent of the law.

Despite the US pre-election din, Thomas’s musings have created a furore. Ajit Pai (no relation to me), who is chairman of the Federal Communications Commission, wrote that such platforms have a right to broadcast free speech but not the immunity to censor it for decency or accuracy as they see fit. Unlike associate justice Thomas’s nuanced remarks, Pai’s statements run counter to the current law that specifically confers such immunity.

While this may seem like an obscure US ruling that has no locus standi elsewhere, America’s experience in recent years with the internet should serve as a warning to the world. The hardening of stances on both sides of the political aisle and the acute polarization of views are painful to watch. The proximate cause is social media. India, where these platforms are also quite pervasive, faces similar troubles.

As they familiarize themselves with the internet, newly online Indians are bound to fall prey to the echo chamber algorithms that social media firms use to ensure that they spend all their time within the confines of their own firm, therefore becoming easy targets for specifically crafted messaging. To be fair, as I pointed out in my earlier column, some of these corporations have started policing themselves internally and publishing “transparency reports". Facebook has also set up an “oversight board", to act as a sort of apex court for Facebook’s internal decisions.

However, for all these companies’ efforts at transparency, we cannot ignore the fact that their judgements are made behind closed doors. What should be regulatory attempts to influence the transparency of information that members of the public see are now instead secret corporate processes. We have no way of knowing the extent of specific biases that may be inherent to each firm. We need nuanced legislation and an enlightened judiciary to deal with this.

America’s legislation is old and might need an overhaul. In India, any new legislation for the internet would need to preserve free speech while ideally applying adequate external pressure to make sure that social media content is filtered for accuracy and decency. Let us remember that courts do not legislate, but ensure adherence to existing laws. And as associate justice Thomas’s example shows, they often also decide on the exact interpretation of an existing piece of legislation. The tighter the law, the tighter its interpretation and application.

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