the debate
In light of Facebook’s recent controversies, as well as the online activism related to the Sushant Singh Rajput case, is it time for India to pass specific legislation regulating content posted on social media, and perhaps even create a regulatory authority? 

 

TANU BANERJEE, partner, IndusLaw

Given the dynamic environment and the anonymity provided by the Internet, there is no doubt, that in reckless hands, the internet and social media can become a destructive weapon. In India, social media platforms are governed as “intermediaries” under the Information Technology Act, 2000 and the Intermediary Guidelines, 2011. While the provisions therein require social media platforms to observe due diligence, they also allow safe harbour from third-party information, reducing their liability towards unlawful content hosted on their platforms. Further, apart from the IT Act, obscenity, defamation, hate speech, sedition are all punishable offences under the Indian Penal Code, 1960. Therefore, while several of our legislations lay down the legal framework governing social media, however, considering the current scenario including the massive amount of misinformation on the Internet and threats to privacy, the existing legislations appear to be under-evolved in controlling unlawful activities on the Internet. It’s also important to consider that when these legislations were enacted, the reach of social media and the Internet was unfathomed.

The need of the hour, therefore, is to revisit our existing laws carefully, to overcome the evils associated with the Internet, while keeping our democratic structure and fundamental rights intact. It’s critical to understand that what needs to be controlled are the dangers of misuse posed by social media, without overturning democracy and curtailing the right to information and free speech. The challenge truly is to strike the right balance between any form of regulation and allowing the fundamental freedoms to prevail. One solution could be to establish an autonomous supervisory body which functions independent of government control or any private bodies supervising the policy framework for self-regulation by social media platforms, allowing them the flexibility to create their own processes for regulating content while ensuring they are not influenced by the state. The challenge, however, is to achieve the right balance.

AMAN TANEJA, senior associate, Ikigai Law

If you order takeaway and fall ill as a result, do you blame the restaurant or the delivery person who brought it to you? As a consumer, you can order from amateur home cooks, roadside stalls or five-star restaurants. No matter how unpalatable the food is, your recourse lies against the person who prepares the food, not the person who delivers it.

Social media platforms are akin to the delivery person in this analogy, bringing you content from everyday users, influencers, and media houses. And while there is no dearth of unpalatable fare being peddled on these platforms, the law has ample recourse against the chefs.

Social media platforms are rife with communally charged speeches, death and rape threats, casteist and racial slurs, and deliberate falsehoods about people and companies. Such content is illegal whether it is shared offline or online. Existing laws relating to hate speech, criminal intimidation, insulting the modesty of women, and defamation amongst others are sufficient to tackle such content. For instance, the police can arrest people for posting rape threats online and courts can grant injunctions to take down defamatory tweets.

On the contrary, any legislation specially targeted at content posted online poses a serious threat to the freedom of speech and expression. It would create an artificial distinction between online and offline expression. Platforms would be obliged to determine what expression is legal and what is not, essentially stepping into the role of the judiciary. Would it be okay for a delivery person to judge a cooking show instead of a professional chef?

Much of the problematic content available on social media platforms exist because there is an audience willing to consume it. Rather than legislating for cultural change, we need to increase institutional capacity to enforce existing laws and invest in educating end-users.

 

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