I ended my last blog five weeks back with asking whether, shorn of all other options, we are looking towards controlling the internet as the sole effective remedy against hate speech and fake news. I also wondered whether (if we adopt such harsh measures) we do not forsake the freedom of speech itself? Simultaneously, I resolved that I must be regular with my weekly blogs; slothfulness would be banished as I approached the New Year.

Alas, that was not to be! Every time that I sat down to write my blog, something earthshaking happened in the internet ecosystem, with dire ramifications on the political and social landscape of the world.

This is a cliché, but a lot has happened in the last month, which has a bearing on the question of how we can preserve a climate of the responsible use of the freedom of expression. I hate to use the word ‘responsible’, but there is no less offensive way to put it.

Witness what we have seen over the last week or so, in the USA. The sitting President, long of the view that his defeat in the recent Presidential election by his rival was an instance of an election being ‘stolen’, continued airing his views in language that was – to the reasonable viewer – blunt, unequivocal and often, offensive. His anger culminated in him and his team instigating their supporters to show their ‘strength’ on 6th January, which they proceeded to do by arriving at the National Capitol building in Washington, fully armed and prepared for violence.

They not only laid siege to the Capitol but broke through a flimsy cordon of security personnel and proceeded to damage the building and enter it with, what the world saw, was violent intent. Legislators who were debating the results of the Presidential election were escorted to safe passage, even as the crowd raised cries to hang the Chair of the session, the Vice President, and put up a gallows outside the building just in case their intent was in doubt. When the crowd was pushed back after considerable violence – five people eventually lost their lives due to this incident – the legislators upheld the validity of the election.

The President used social media to show his lack of repentance, and given the instigating tone of his statements, two of the largest social media platforms that he used with good effect – Twitter and Facebook – first took down his communications, and then suspended his accounts permanently. As of now, even as Impeachment proceedings have begun against the President, some say that he has announced his intention to start his own social media platform.

Let us tear our senses away from these stranger than fiction facts and focus on the implications of what the President said, to the response of social media platforms that he used. From a purist sense, the President had the freedom to express whatever he pleased, whether we agree with his statements or otherwise. That is singularly true of the USA, where hardly any curbs are placed on the freedom of expression. True, his utterances directly lead to this unprecedented attack on a seat of government by a violent mob, something that raised a hollow laugh in those who mocked America’s usual holier-than-thou posturing as the guardian of human freedoms. For that, his followers and he would face legal consequences, some of which are underway.

Yet, from the context of how regulation of the freedom of speech is best done, the response of Twitter and Facebook in banning the President forever from their platforms, has significant long-term implications.

 

The simple question, from a regulatory perspective, is whether a platform provider has the sole right to regulate content on the platform, and go to the extent of banning a user.

 

At first sight, that question seems to be a no-brainer since the platform provider is the owner of the platform, and anybody who uses it assents to the community standards prescribed by it. Any violation of these standards would invite adverse action, including banning – temporarily or permanently – from the platform.

Yet a closer look would reveal ambiguities and contradictions in this approach.

Consider this. A platform provider is not considered responsible for the veracity and the legal nature of all that is communicated on that platform. Both the US and India have similar legal protections in this regard. In India, this protection from the vicarious liability of the platform provider for the posts of their users was hard won through a Supreme Court judgement.

On the other hand, even as the platform provider enjoys immunity from legal consequences for the actions of their users, the platform provider also has the unilateral power to consider the content posted by users and take action to ban them from using their platforms if they so wish.

That looks decidedly unfair.

Furthermore, when a platform provider has the unilateral power to decide what violates community standards and what does not, it could be misused in ways yet unknown. We have seen problems with Facebook, for instance, in both India and the US, where they were summoned by legislators and grilled in hearings as to how they actually use their discretion to decide what is objectionable.

In India, Facebook’s reputation suffered when it turned out that a senior staffer was lenient to certain hate generating voices, ostensibly on the ground that taking a hard line against such voices might affect the expansion of Facebook’s business. The person concerned resigned from the company in the wake of these disclosures.

Therefore, if regulation of the freedom of expression by a platform provider is not an ideal answer, are there other choices? More of that in my next blog.

T.R. Raghunandan is an Advisor at the Accountability Initiative.