The ongoing tussle between the Government of India and Twitter
is a moment of reckoning between the State and social media.
Things are coming to a boil quite quickly, stirring the pot on a topic that is sure to have a cascading effect on social media
and how it is treated. Regulation and liability are issues that will evolve both in and outside the courtrooms and their precincts, and there are historical precedents that will be helpful to draw on to see what could happen in the months and years ahead. The reckoning is neither final nor will its outcomes be permanent.
In his pioneering work on Internet regulation, Code and Other Laws of Cyberspace, Larry Lessig identified the four regulators of human behaviour: The market, norms, architecture (code, on the Internet) and the law. These four factors influence each other and, in turn, human behaviour, through a combination of incentives and constraints. Mr Lessig recognised that it was a matter of time before the end-to-end, decentralised and open architecture of the Internet was curtailed by traditional nation states and their legal systems. The globalisation of information production, flow and consumption would eventually, and inevitably, bring things to a head.
Over the last two decades, financial markets have disproportionately rewarded companies that democratised content creation and distribution over the Internet. Anyone could publish content for anyone else on the network almost instantaneously, requiring no one else’s permission or intervention. Gone was the limited, curated information, delivered through a publication cycle involving the friction brought by involved intermediaries, such as editors and publishers, who bore responsibility for the content they published.
To harness the full potential of this (then nascent) medium, the law in most jurisdictions positively incentivised Internet intermediaries to put their heads in the sand. To enjoy a certain degree of immunity from liability for content posted on their platform, they had to freely allow user-content to be posted rather than act as gatekeepers that reviewed, edited or filtered content.
Technology platforms were driven by the demands of business. They achieved scale by focusing on content quantity. With consumers swimming in a surfeit of information, algorithms came into play, feeding us what we wanted, reinforcing rather than challenging biases, “silo-ising” rather than opening our minds. The Internet also made anonymity and encryption widely available features, resulting in the reduced influence — online — of moral codes of behaviour.
The law is intrinsically the least elegant and sophisticated of the four regulators. It governs by consequences, often using punishment and imposing costs disproportionate to the harms it seeks to address. It is also easy to abuse through arbitrary implementation.
It is in this context that the legal developments around the roles and responsibilities of internet intermediaries ought to be viewed. Recent changes, such as the new intermediary guidelines implemented in India, are directed at private platforms. They oblige them to take responsibility and accountability for what they enable — to actively screen and filter content, mediate disputes, block objectionable content and provide end user information to governments upon request. However, its impact will be felt by all citizens — in how they relate to each other and to the State. There are risks of online speech being subjected to standards of propriety that are not transparent and difficult to weigh, implemented either by private technology platforms or the incumbent state administration.
The rebalancing of power between digital platforms and governments was inevitable. The shift could, however, have the unintended impact of altering the economics of the content marketplace in India, by potentially favouring large incumbents, raising entry barriers for new creators and businesses, and compartmentalising the Indian content ecosystem. In a diverse and multi-cultural society, the heckler’s veto is very real and, with a ready outlet, will take on even more significant proportions. Over-cautious policing could constrain voices that perhaps ought to be heard. In 2015, the Supreme Court had found broad and disproportionate curbs on speech (such as mere annoyance or inconvenience to a person) to be unconstitutional. Potentially well-intentioned in seeking to improve the quality and safety of information and content that Indians access and consume, the law must tread thoughtfully, continuing to protect and provide opportunities for the expression of unpopular ideas.
Information quality is one of humanity’s critical challenges. Blocking and tackling Internet content cannot fight this battle alone. A combination of multi-lateral engagement, new business models for media organisations, fair competition standards, educational and cultural initiatives that promote critical thinking, ethical standards embedded in technology algorithms and processes, and similar initiatives will be needed to move us forward. These interventions will have to be endorsed and empowered by law, policy and regulation.
To avoid decay, a society must be able to refresh and challenge itself, its ideas and ways of being and doing. Newness and change often emerge from the margins and peripheries. These might be inconvenient and uncomfortable to deal with but remain vital. With the stated goal of protecting its citizenry, the government must avoid over-sanitising the public narrative.
Balancing the private and public interests in play will continue to be an arduous, challenging task for governments. It is critical that the debate remains inclusive, comprehensive, and factors in multi-variate solutions to problems that will continue to evolve rapidly.