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The 6 January incident in Washington DC and its aftermath online can be seen as pivotal events informing conventional wisdom about social media regulation. First, with the exception of free speech absolutists, most people now agree that some level of content regulation is necessary to combat ‘fake news’ and hate speech. Second, many people think that the ‘de-platforming’ of ex- President Donald Trump and Parler is proof that social media is “too powerful and biased", and needs legislative intervention.

There are valid concerns about what constitutes ‘fake news’, who determines this and how much regulation is too much. However, it is difficult to challenge conventional wisdom on the first part, at least on the surface. For Blackstone, writing in the 1700s, freedom of the press was freedom against licensing acts such as those passed by the Stuart kings, which required any book to be cleared by an authority before it was allowed to be printed. The tools largely chosen by social media behemoths—labelling questionable posts, and exercising some measure of control over how posts go “viral"—are not modern-day licensing laws, but merely control the amplification of posts. Uncontrolled dissemination of material to millions of people forms no part of the right to free speech, and these steps are reasonable and proportionate tools for stopping the tide of fake news and hate speech that has imperilled social harmony and our democratic institutions. More drastic action, such as the deletion of some posts, undoubtedly impacts free speech. But, as Columbia professor Tim Wu convincingly argues, many arguments of the traditional free speech doctrine rest on assumptions that simply do not hold good in the modern information age and merit some reconsideration. The information age, with its glut of data, requires a new paradigm of free speech and new definitions of censorship, particularly because these concepts are now being adopted by private companies.

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The fact that a mild form of content regulation on social media is necessary does not mean that the state should be doing this. While the state has the right to stop the incitement or commission of crimes, respect for free speech would mandate as minimal a role as is possible in regulating discourse beyond these broad lines. Blocking rules should be a shield against social disharmony but not a sword against dissent. The courts need to draw a careful balance in such cases. Self-regulation of content by social media companies is new and deserves breathing room before heavy regulation is considered.

The second part of conventional wisdom needs some unpacking too. Consider the ban on Donald Trump by Twitter. Civil libertarians see censorship in this, conservatives see “cancel culture", and various heads of state see it as an affront. We should just see the facts.

Twitter is a private service that is not reliant on government largesse. It is by no means a public authority. Nor is it the only way to reach the public, though it is certainly convenient. Those banned by it can use other modes of communication—other apps or simply traditional means like mailing lists, press appearances, etc. When I sign on to a private service, I agree to be bound by its terms and conditions, and it isn’t scandalous for the service to eject me if I violate them. The political impact of ejection by Twitter may be huge, but as a legal issue, it is difficult to distinguish it from a restaurant that ejects a drunk customer for misbehaviour. Yes, it is disquieting to have a company ban a head of state from using its services, but it’s for heads of state to ensure that they are not put in such an embarrassing situation. They must either comply with its terms or forgo the service.

The ejection by Amazon Web Services (AWS) of Parler for failing to moderate its content has led critics to bemoan the power of AWS to shut down other businesses—you can’t tell people to create their own platform and when they do, compel it to shut down. Yet, the case isn’t so simple.

For consumers, access to the internet is a human right, and those providing such access ought to be regarded as public utilities. But there is a difference between denying consumers access to the internet and denying businesses access to a host platform should they fail to comply with the rules laid down by hosting services.

Web hosting services are not dependant on state licenses. There are several companies that offer hosting, though none is as big as AWS. As private businesses, they are entitled to set down rules as long as these comply with competition law mandates. So far, Parler hasn’t shown any violation of competition law by AWS in court. Also, there is no human right involved that can compel private firms to host content unacceptable to them. Parler now appears to be back online, through a different service.

The power exercised in both these cases is based on commercial success and comprises the enforcement of usage rules. This is not dependent on any state mandate and does not violate human rights. If the state wishes to have a say on who can tweet or which business should be hosted, it can set up its own social network or web hosting service. Platforms do have the power to regulate content and customers, subject to laws against unfair discrimination. Those who say they’ve been “unfairly" de-platformed have remedies under antitrust and consumer laws.

In trying to stop the miasma of online disinformation, the state must not punish social media companies for their success based on an incomplete understanding of power.

Rahul Narayan is an advocate on record at the Supreme Court of India who works on technology law, digital rights and privacy.

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