Facebook, Twitter can’t police on speech violation. Only Indian law can

What instigated the outrage against Facebook’s alleged political bias in India is an attempt to coerce platforms to take sides in the US Presidential campaign.

The Facebook Inc. application is displayed for a photograph on an iPhone | Bloomberg

The US elections are witnessing heated, contested, loud and aggressive debates, with media (new and old) donning visibly partisan robes. One such media report has sought to pull India and Indians into the middle of the Trump Vs Biden campaign battle.

First, there is a simple fact that often eludes social media platforms like Twitter and Facebook as well as the easily outraged proponents of the newly-minted ‘cancel culture’. Social media platforms may have their own terms and rules of engagement and content monitoring; it is their prerogative. But those terms and rules cannot—and, more importantly, must not—be allowed to supersede the law as framed by sovereign states, especially democracies, where these platforms operate.

For example, the law as it exists in India, based on its constitutional and penal provisions, overrides terms and rules framed by social media companies based anywhere in the world, operating within its territory. After all, if these companies ensure compliance with Indian law in order to conduct business, equal compliance would be in order for content monitoring and management. There cannot be two separate arrangements.

It is necessary to underscore this point to unclutter the debate triggered by an article in the Wall Street Journal, which imputed that Facebook has shown extraordinary preference for the BJP on account of the political bias of some of its employees. Facts do not bear out the newspaper’s contention, which is of a piece with what is termed as ‘cancel culture’, where only those views that are endorsed by a ‘select few’ may be allowed a public platform. The ensuing shouting match needs to be contested with a tempered view on the more substantial issue of a platform’s self-assumed supreme right and absolute authority to decide what can and cannot be allowed to be said.

It is quite obvious that the upcoming US presidential election and the attempt to coerce platforms into becoming an extension of the campaign for or against the incumbent Administration—which is no secret within and outside social media corporate offices—instigated the outrage against Facebook’s alleged political bias in India. It is a proxy that prepares the ground for what lies ahead.

But since it involves India, and Indian users of Facebook and all other platforms, let us locate this debate within the Indian context and focus on three crucial questions surrounding platform accountability and compliance.

First, what is the Indian consensus on what constitutes freedom of expression online? It certainly must not be what Facebook, Twitter, et al deem fit. The Constitution of India guarantees its citizens certain fundamental rights that cannot be encroached upon except under special circumstances and that too only by the state, not an external agency. Article 19 (2) qualifies freedom of speech and expression with “reasonable restrictions … in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” More often than not, these restrictions are followed in the breach, unless there is a specific complaint.

India’s judiciary has intervened to either uphold or strike down these restrictions depending on their application. In other words, there are no specific, watertight definitions guiding Article 19 (2). By and large, all speech, unless it violates India’s penal code, is held to be free. Perceptions and legal positions have changed over time. For instance, DH Lawrence, once held to be ‘obscene’ by the courts, is now a part of university curricula. Barring the early years of the Republic, the restriction on speech that may harm relations with ‘friendly countries’ has never been imposed. The Supreme Court’s Hindutva judgement has elasticised political speech. ‘Hate speech’ is broadly defined as speech that promotes enmity between communities while ‘violent speech’ is understood to be speech that calls for or poses an imminent threat of violence. There are separate laws to deal with both and judgements to guide their application.

Now, for some recent examples of free speech, social media responses and the consequences. Last week, P Naveen, a relative of Congress MLA Akhanda Srinivasa Murthy in Karnataka, posted content—in response to another post—which was deemed to be “anti-Islam” by a mob that ran riot, burning down the legislator’s house and ransacking two police stations. The police opened fire; four people lost their lives. It could be argued that had Facebook been alert and ‘unbiased’ in its content monitoring, then it would have pulled down the provocative post that prompted the response by Naveen, thus, nipping all mischief in the bud. But since the first post remained untouched, could that be imputed to Facebook’s bias towards a specific community and against another? At which point does accountability come in?

Also last week, Twitter locked the account of JNU professor and well-known public figure Anand Ranganathan for posting a verse from the Quran that called for “punishment” of those who “abuse Allah and his messenger” in the context of the Bengaluru riots. Twitter has said that Anand Ranganathan’s account has been locked because his tweet violated the platform’s rules that explicitly state, “You may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.” How can something that can be freely stated, either in writing or verbally—in Indian media because there is no legal bar on it—be out of bounds on Twitter? Do Twitter rules supersede Indian laws?

Which brings us to the second question: What should be the operating law for social media platforms? Is it the law of India or is it the law of the country where the parent company is based? Or, more ominously, is it the ‘law’ as framed by the company, regardless of the law(s) of either the parent or the host country. With respect to the brouhaha over Facebook and its alleged bias, were company officials pushing back against Indian law or were they pushing back against a presumptive ‘law’ to (selectively) govern speech globally? It is this grey area in which social media platforms operate that creates fertile ground for mischief and indeed for political capture and gaming. It is imperative that there be no ambiguity in this regard, especially because it concerns the rights of citizens.

The third big question that arises is: What recourse do we have when someone – an individual, an institution, or the state – seems to be erring on the side of hate speech? Will the errant entity or individual be held to account by law or by dissent? As of now, it is unclear as to exactly which authority we are appealing. Without a framework to approach and remedy cases like these, Indian social media users will remain subject to the whims and fancies of content platforms, who will arbitrarily decide for themselves what is the ‘common good’, often with scant regard for the law of the land. For instance, if Twitter were to ban the account of an Opposition leader, it would prompt cries of censorship. On the other hand, if a ruling party leader were to be banned, should it be seen as acting under pressure?

It is for the state, a sovereign entity, to respond (in keeping with its extant laws) if there is a speech violation, intentionally or otherwise. Platforms like Facebook and Twitter cannot be allowed to arrogate to themselves this role and render the sovereign power of the state meaningless. As mentioned earlier, the Constitution allows only for the State to restrict citizens’ rights in extraordinary situations, and even that is open to judicial scrutiny. If we were to allow Facebook, Twitter and other social media platforms to have the executive power to infringe upon our freedoms, it would create space and scope for them to be used as political tools by those in power or out of power. That would be against all canons of national sovereignty and fly in the face of freedom.

Therefore, social media platforms cannot, and must not, interfere in the domestic debates and political processes of a sovereign country. If cause and effect (to a social media post) are limited to a local jurisdiction, content platforms cannot, and must not, get involved, except for providing evidence to aid law enforcement, if called upon by the courts. If the effect of social media content is transnational, then international agreements between the countries concerned may be used for law-enforcement application.

The noise over Facebook’s alleged bias aside, we are talking about the sanctity, integrity and safety of societies, communities and countries. Sovereign states, more so in democracies, are responsible for these areas of public life and are accountable to national institutions as well as citizens. Social media and content platforms, however, are accountable to nobody but their boards. They are far removed from the concerns of the user whose time and patronage they actively solicit.

Corporate governance cannot be restricted to the non-digital world; it must now extend to digital platforms. Platforms should be held both answerable and actionable for their decisions, which cannot be unfettered from the law of the land where they operate. Everything else is superfluous.

Samir Saran @samirsaran is the President of Observer Research Foundation. Views are personal.

The article first appeared on the Observer Research Foundation website.