India’s punishing new social media rules could be a nightmare for the tech giants

By Shubham Agarwal

March 11, 2021

In late February, India, the second-largest internet economy, released new regulation that is supposed to hold social media platforms “accountable against their misuse and abuse.”

The new digital media rules aim to tighten the government’s grip over how social networks regulate their content. Along with the changes, the country’s ruling administration has also reportedly dispatched written warnings threatening to jail Facebook and Twitter’s India-based employees if they fail to comply. The message is clear: Follow the government’s orders or risk prosecution. In a punishing move, tech companies only have three months to update their platforms to comply. 

As the lines between political speech, hate speech, and misinformation blur, social media platforms have increasingly found themselves in a constant censorship battle with local authorities. Similar rules to India’s have been rolled out by many other countries before, like Germany, whose NetzDG law mandates removal of illegal content within 24 hours, and Australia, which penalizes social networks for not taking down abusive and violent posts in a timely manner. 

But India’s new law edges closer to the digital censorship of autocratic nations such as Russia and China, and could endanger the very foundation of free expression online. 

At its core, the new rules remove legal protections for tech companies over what their users post. If an “unlawful” piece of information—anything that’s prohibited under the country’s law— is reported by the local authorities, the new regulation requires that social networks act, else face the loss of immunity and potentially criminal prosecution. 

That might sound reasonable on the surface. But the new rules come shortly after Twitter refused to comply with the Indian government’s order to muzzle accounts that have been critical of the country’s new agriculture reforms, which have sparked weeks of unrest and farmer protests in the capital city, as well as social media backlash with personalities like Rihanna and Greta Thunberg voicing their support.

Several press releases and threats to punish Twitter employees with fines and jail time later, the microblogging service did agree to partially comply with the request and blocked over 500 accounts. But Twitter also revoked earlier bans over many high-profile accounts such as The Caravan, an independent politics and culture publication. India’s latest rule will ensure that in the future, such bans remain in effect. 

Twitter’s reluctance to comply with the government’s request didn’t sit well with the Indian government, many of whose ministers joined and urged their Twitter followers to migrate over to a local “free speech” microblogging service, Koo (which has a similar-looking yellow bird as its logo).  

The social media regulations have been a long time coming. As per reports, a group of ministers actively held meetings over the past year to form a strategy on how they can “neutralize the people who are writing against the Government.” 

For tech giants, the stakes for appeasing the Indian government are high. India has already shown its willingness to ban huge social media platforms, like TikTok, that it perceives are undermining national interests. With growth in markets like the U.S. and U.K. at a point of saturation, Silicon Valley has spent much of the last few years trying to win over India’s burgeoning internet population. The country represents an opportunity that’s simply too big to pass up. 

Chilling freedom of speech

The new rules now give social networks like Facebook and Twitter 36 hours to comply with official takedown orders and “remove or disable access” to the content in question. (Facebook and Twitter did not respond to a request for comment, and Google declined to comment.)

The regulation also mandates the development of a grievance redressal system—a complaint box, if you will—where users can report violations. A “grievance officer,” who has to be an Indian citizen, must acknowledge submissions within a day. The law further requires companies to notify content owners before their post is taken down and allow them to dispute the action. 

India’s refreshed digital media guidelines, above all, diminish tech companies’ ability to evade responsibility for the content users post on their services. 

The move, experts warn, is a chilling reminder of India’s efforts to exert more far-reaching control over what citizens are allowed to say online. It’s a major setback for the country’s long-standing democratic values, which have been eroding in recent years: India already leads the world in internet shutdowns, in some cases cutting off access to communications to curb dissent or protests against the government. 

Emma Llansó, the director of the Center of Democracy and Technology’s Free Expression Project, believes such draconian legislation that creates “legal risk for companies based on user-generated content” can backfire and emerge as “strong incentives for those companies to over-block people’s speech.”

If platforms are held liable for what users publish, they’re far more likely to over-censor content and take down anything that comes anywhere close to the legal line—in an effort to avoid getting sued, Llansó argues.  

We saw a glimpse of what Llansó is warning against back in 2018 when Congress passed new laws aiming to to hold internet firms liable for sex trafficking advertisements. Fearing litigation, tech companies began pulling legitimate sex workers’ accounts and their content offline.

An assault on encryption

India isn’t just strong-arming social networks. It’s also taking an alarming step towards a backdoor into end-to-end encrypted messaging apps, which keep users’ communications secure and completely private. 

As part of the new social media reforms, India requires messaging services such as Signal and WhatsApp, which has half a billion users in the country, to keep tabs on messages’ first originators—an unprecedented and anti-privacy decision that could eventually make it impossible for anyone to communicate anonymously online. 

Other countries including the United States and the United Kingdom have been persuading tech companies to come up with similar provisions for a while. If messaging apps build a solution for India, the rest of the world will likely follow suit. 

CDT’s Llansó says the suppression of end-to-end encryption is an “enormous threat to freedom of expression online.” 

“Laws that prohibit or undermine end-to-end encryption will chill expression, particularly of vulnerable groups who may face reprisals for their opinions,” she tells Fast Company

The international battle over illegal, damaging content

While India’s new rules could be damaging for free speech, that doesn’t mean social media companies don’t need any regulation—and lawmakers are already pushing to hold them responsible. 

Last month, a group of Democratic U.S. Senators introduced a bill that calls for more accountability for content that results in real world harm. U.K. watchdog Ofcom is expected to gain additional power to govern and penalize social networks. 

Shreya Tewari, a staff fellow at Harvard University’s Berkman Klein Center, says that although current social media rules like the one released by India are “deeply worrying” and “disproportionate,” especially due to their short takedown windows, government intervention could be the key in establishing more robust frameworks for online moderation. But for that to be truly effective and fair, such laws need to be comprehensive, enforced through proper judicial oversight, and “fall in line with international principles.”

“Since the newly enacted intermediary laws do neither, they are in urgent need of judicial review,” she adds. 

Although existing rules like India’s will ultimately enable an autocratic environment, experts believe there’s a middle ground where success will hinge on transparent collaboration between governments and social networks. 

Tewari further points out that neither government regulation nor private companies alone should be made responsible “for ensuring the prevention of digital harms.” She adds that a third-party, unbiased committee of international voices will be well-positioned to “opine on the legality and proportionality of content takedown measures.” 

The Forum of Information and Democracy suggested similar proposals in their report on how an international social media policy framework could potentially work. Along with calling for transparency over moderation, the report proposes an assessment of automated algorithms, adding “friction” to viral content, and more. 

For now, Tewari isn’t counting on tech companies, which she predicts will probably do “what is best for them to be able to keep their business running.” Nor does she want to rely on government orders, which in a lot of cases “will have the intention of curbing dissent, as opposed to regulating digital harms,” she says.

But for CDT’s Llansó, a path forward that balances both approaches could be ideal. “Data protection laws, pro-competition policies, and transparency from these companies about what standards they apply to our speech would all help ensure that both governments and companies can be held accountable for their impact on our rights.”


Shubham Agarwal is a freelance technology journalist from Ahmedabad, India. His work has previously appeared in Digital Trends, HuffPost, and more. You can reach out to him on Twitter.


 

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