Balancing the Free Speech and Social Media Regulation

Recently Facebook, one of the social media giant set up the Oversight Board, an independent body, which scrutinizes its ‘content moderation’ practices.

What are the IT rules of 2021?

Regulating social media intermediaries (SMIs): World over, governments are grappling with the issue of regulating social media intermediaries (SMIs).

Addressing the issues of SMI controlling the free speech: Given the multitudinous nature of the problem the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance it is important for governments to update their regulatory framework to face emergent challenges.

Placing obligations on SMI: In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021 that were primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.

What are the recent amendments?

Draft amendments in June 2022, the stated objectives of the amendments were threefold.

Protecting the constitutional rights: There was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms,

Grievance redressal: To strengthen the grievance redressal framework in the Rules,

To avoid the dominance: That compliance with these should not impact early-stage Indian start-ups.

This translated into a set of proposed amendments that can be broadly classified into two categories.

Additional obligation on SMI: The first category involved placing additional obligations on the SMIs to ensure better protection of user interests.

Appellate mechanism: The second category involved the institution of an appellate mechanism for grievance redressal.

Why social media is said to be double-edged sword?

Moderation of content by platforms: Social media platforms regularly manage user content on their website. They remove, priorities or suspend user accounts that violate the terms and conditions of their platforms.

Excessive power in government’s hands: In today’s online environment, however, the existing government control on online speech is unsustainable. Social media now has millions of users. Platforms have democratized public participation, and shape public discourse.

Platforms of democratic freedom: As such, large platforms have a substantial bearing on core democratic freedoms.

Hate speech on internet: Further, with the increasing reach of the Internet, its potential harms have also increased. There is more illegal and harmful content online today.

Disinformation campaigns: On social media during COVID19 and hate speech against the Rohingya in Myanmar are recent examples.

What could be the balanced approach between free speech and regulation?

Government orders must be respected: Government orders to remove content must not only be necessary and proportionate, but must also comply with due process.

Example of DSA: The recent European Union (EU) Digital Services Act (DSA) is a good reference point. The DSA regulates intermediary liability in the EU. It requires government takedown orders to be proportionate and reasoned.

Platforms can challenge the governments order: The DSA also gives intermediaries an opportunity to challenge the government’s decision to block content and defend themselves. These processes will strongly secure free speech of online users. Most importantly, an intermediary law must devolve crucial social media content moderation decisions at the platform level.

An idea of co-regulation: Platforms must have the responsibility to regulate content under broad government guidelines. Instituting such a coregulatory framework will serve three functions.

Platforms will retain reasonable autonomy over their terms of service: Coregulation will give them the flexibility to define the evolving standards of harmful content, thereby obviating the need for strict government mandates. This will promote free speech online because government oversight incentivizes platforms to engage in private censorship. Private censorship creates a chilling effect on user speech. In turn, it also scuttles online innovation, which is the backbone of the digital economy.

Coregulation aligns government and platform interests: Online platforms themselves seek to promote platform speech and security so that their users have a free and safe experience. For instance, during the pandemic, platforms took varied measures to tackle disinformation. Incentivizing platforms to act as Good Samaritans will build healthy online environments.

Outsourcing the content regulation: instituting coregulatory mechanisms allows the state to outsource content regulation to platforms, which are better equipped to tackle modern content moderation challenges.

Platforms must follow the due process of law: Platforms as content moderators have substantial control over the free speech rights of users. Whenever platforms remove content, or redress user grievance, their decisions must follow due process and be proportionate. They must adopt processes such as notice, hearing and reasoned orders while addressing user grievances.

Transparency in algorithm: Platform accountability can be increased through algorithmic transparency.

G20 Presidency: India can be voice for developing world

Government of India launched the logo, website and theme for India’s presidency of the G20, setting the tone for the country’s G20 presidency, beginning December 1. Modi’s clarion call was “One Earth, One Family, One Future”, aptly underscored by the phrase “Vasudhaiva Kutumbakam”.

What is G-20?

Formed in 1999, the G20 is an international forum of the governments and central bank governors from 20 major economies.

It brings together 19 of the world’s major economies and the European Union.

Its members account for more than 80% of global GDP, 75% of trade and 60% of population

To tackle the problems or address issues that plague the world, the heads of governments of the G20 nations periodically participate in summits.

India has been a member of the G20 since its inception in 1999.

Current Global scenario and India’s G20 Presidency

War between Russia and west: It must nonetheless countenance a complex geopolitical moment, with tensions between G7 nations and Russia over the war in Ukraine, and growing friction between the US and China.

India’s efforts to be a meditator: PM Modi’s recent advice to President Putin that “now is not the time for war” is anchored in the ethos of peace and non-violence, the legacy of Buddha and Gandhi.

Energy crisis: The developmental agenda must receive first billing. Differences over energy diversification and the emerging challenges in trade and technology will need reconciliation.

Economic crisis: Stagflation in the US, China and Europe threatens to affect the global economic outlook. Policy coherence in macroeconomics and trade is an important imperative.

Supply chain disruptions: At the “Global Supply Chain Resilience” meeting in October 2021, Modi advocated cooperation on three critical aspects trusted source, transparency and time frame to improve global supply chains. At the SCO Summit this year, he cited the disruption of supply chains due to the Ukraine crisis and spoke of the unprecedented energy and food crises.

What India can show to the world?

Growing economy and rising stature: India’s G20 presidency coincides with its growing confidence, matched by its rising stature and high economic growth rate.

India’s digital infrastructure: India’s commitment to digital transformation will be a key element in forging an accessible and inclusive digital public architecture. The country’s exemplary success with the Unified Payments Interface (UPI), Direct Benefits Transfer and Aadhaar authentication in welfare schemes has growing relevance to the developing world.

Efforts for TRIPS waiver on vaccine: The use of the CoWIN platform enhanced vaccine accessibility and equity. India has made a strong pitch for a TRIPS waiver to ensure equitable access to vaccine production.

Vaccine assistance to the world: India’s commitment to advancing South-South cooperation is well acknowledged. At the height of the pandemic, India provided 250 million vaccine doses to 101 countries, apart from other medical assistance.

SAGAR and Blue Economy: India’s global initiatives in recent years such as SAGAR (Security and Growth for All in The Region), “blue economy”, “clean oceans”, and disaster-resilient infrastructure have the potential to gain traction in the G20.

India as true climate leader: PM Modi’s “Panchamrit” announcements at COP26 — net zero by 2070, non-fossil energy capacity to 500 GW by 2030, 50 per cent of energy requirement through renewables by 2030, reduction of carbon emission by 1 billion tonnes by 2030, and reduction of carbon intensity in the Indian economy to less than 45 per cent by 2030 — established India as a climate leader.

What should be India’s Priority as President of G20?

Open application programming interface: As economies everywhere move rapidly towards digitalization, it is important to develop a consensus on an open source, open application programming interface (API) and an interoperable framework for public digital platforms on which the private sector can freely innovate. This would help maximize the impact of the digital transformation for the global public good, including new data, measurement tools, indicators of economic growth and the achievement of Sustainable Development Goals (SDGs).

Promotion of LiFE philosophy: At the COP26 in Glasgow, Modi proposed Mission LiFE, which places individual behavior at the centre of the global climate action narrative. The Mission intends to establish and nurture a global network of individuals known as Pro-Planet People (P3), committed to adopting and promoting environmentally friendly lifestyles. This is based on the idea that responsible individual behavior can undo the damage wrought upon nature.

Focus on climate financing: At COP27 as well as during its G20 presidency, India will have to focus attention on climate finance, especially a new quantified goal beyond the existing annual $100 billion pledge by Advanced Economies (AEs) to assist developing nations in climate change adaptation and mitigation from 2020 to 2025. The delayed pledge is expected to be fulfilled in 2023 during India’s presidency and from there on, the G20 needs to raise the bar.

Clean energy partnership: The G20 presidency will provide India with an opportunity to give impetus to several of its initiatives for clean energy partnerships especially in solar, wind and hydrogen with the EU, Japan and the US. It will provide a platform to give a fillip to the idea of, “One Sun, One World, One Grid”, first mooted by Modi at the International Solar Alliance (ISA) in 2018.

Achieving the Net Zero target: India has the scale and capacity to set a shining example of rapid and decarbonized economic growth to help realize the G20’s global net zero ambitions. A viable international framework for development and international trade in GH2, together with green ammonia and green shipping, is the key. Reliable supplies of critical minerals and technological collaborations for energy storage, including a global battery coalition, could provide answers.

Nuclear energy as an alternative: Given the nascent support today for civilian nuclear energy in Europe due to energy market volatility, the G20 could work toward an expanded and robust civilian nuclear energy cooperation framework, including for small modular reactors.

Reforming the multilateralism: Multilateral institutions are perceived today as unrepresentative, ineffective, or worse still, both. The call for a new multilateralism and reassessment of the Global Financial Order to ensure adequate credit enhancement and blended finance for sustainable green transitions reflects a popular global sentiment.

Challenges to International Cooperation on Counter-Terrorism

India’s decision to host the special session of the United Nations Security Council’s Counter Terrorism Committee (UNSCCTC) last month held in Mumbai and New Delhi, it focused on new and emerging technologies is one of a number of events planned by the Government to give its counterterror diplomacy a greater push.

What is Counter-Terrorism Committee (CTC)?

The CTC is a subsidiary body of the United Nations Security Council (UNSC).

The 15-member CTC was established at the same time to monitor the implementation of the resolution.

In the wake of the 11 September 2001 terrorist attacks in the US, the UNSC unanimously adopted resolution 1373. This among its provisions obliges all States

What are the challenges to build international Consensus on counter-terrorism?

Narrow Global War on Terrorism (GWOT): The first challenge is that the “Global War on Terrorism” (GWOT), as it was conceived by a post 9/11 United States is over with the last chapter written last year, as the United States negotiated with the Taliban, and then withdrew from Afghanistan.

Non-cooperation with India by USA and world: GWOT itself was built on an unequal campaign when India had asked for similar help to deal with the IC814 hijacking (December 1999) less than two years prior to the 9/11 attacks (with evidence now clear that those who the Atal Bihari Vajpayee government was forced to release were all terrorists who went on to help with planning, funding or providing safe havens to the al-Qaida leadership), its pleas fell on deaf ears in the U.S., the United Kingdom, the United Arab Emirates (UAE), and of course, Pakistan, all of whom were hit by the same terrorists in later years.

USA and China Escorting the Pakistan: Even after GWOT was launched, Pakistan’s role as the U.S.’s ally, and China’s “iron friend” ensured that the UNSC designations of those who threatened India the most, including Masood Azhar and Hafiz Saeed, never mentioned their role in attacks in India.

FATF is becoming toothless: The maximum India received in terms of global cooperation was actually from economic strictures that the Financial Action Task Force (FATF)’s grey list placed on Pakistan — Pakistan was cleared from this in October indicating that the global appetite to punish Pakistan for terrorism has petered out.

Realpolitik over Global problem: In addition, the weak international reaction to the Taliban’s takeover of Kabul, and its persecution of women and minorities in the country, demonstrate rising fatigue levels in dealing with “another country’s problems”.

Ineffective UNSC resolutions: The hard reality for India is that the future of counterterrorism cooperation is going to be less cooperative, and counterterror regimes such as the UNSC Resolutions 1267, 1373, etc. rendered outdated and toothless.

How polarized world pose a challenge for fight against terrorism and the questions raised?

Distraction due to Russia-Ukraine war: War not only shifting the focus from terrorism but is also blurring the lines on what constitutes terrorism. The CTC meeting in Delhi, for example, was disrupted over Russia’s claims that the U.K. helped Ukraine launch drone attacks on Russia’s naval fleet in Sevastopol. The question remains: if drone attacks by Yemeni Houthis on the UAE and Saudi Arabia’s oil infrastructure were condemned as terrorist attacks, why was the line drawn for drone attacks on Russian ships in a port used for loading grain, or a bridge bombing that put so many civilian lives at risk?

Likely recruitment of Afghan soldiers in Ukraine war: On the other hand, Russia squares up the possible recruitment of the former Afghan republic’s National Army Commando Corps into its war in Ukraine, Would not these commandos who once fought Taliban terrorists, now qualify as terrorists themselves?

Divided UN security council: Away from the battle field, the polarisation has rendered the body tasked with global peace, paralysed, as the UNSC is unable to pass any meaningful resolutions that are not vetoed by Russia or western members, and China has been able to block as many as five terror designations requested by India and the U.S. Perhaps the biggest opportunity lost due to the UNSC’s other preoccupations has been the need to move forward on India’s proposal, of 1996, of the Comprehensive Convention on International Terrorism (CCIT).

Convention on International Terrorism is not accepted: While each conference, including the CTC meeting in Delhi, makes passing the CCIT a goal, very little progress has been made on the actual issues such as the definition of terrorism, concerns over human rights law conflicts, and the old debate on ‘freedom fighter vs terrorist’. Despite several changes in the draft made by India in 2016, consensus for the convention is still elusive

What are New and emerging technology in terrorism?

Drone attacks: Emerging technologies and the weaponization of a number of different mechanisms for terrorism purposes. Drones are already being used to deliver funds, drugs, weapons, ammunition and even improvised explosive devices.

Possible bio-war: After the COVID19 pandemic, worries have grown about the use of biowarfare, and Gain of Function (GoF) research to mutate viruses and vectors which could be released into targeted populations.

AI and robotic soldiers: In a future that is already here, the use of artificial intelligence (AI) systems and robotic soldiers makes it even easier to perpetrate mass attacks while maintaining anonymity.

Cryptocurrency and terror Financing: Terror financing uses bitcoins and cryptocurrency, and terror communications use social media, the dark web and even gaming centres.

India’s opportunity to build global consensus

India is on forefront since long: India has been at the forefront for a call of global action against terrorism which is increasingly becoming a global phenomenon.

India will host No money for terror conference: New Delhi will host the third edition of the “No Money for Terror” (NMFT) conference that will look at tackling future modes of terror financing.

Using Global Counter Terrorism Architecture: In December, when India takes over the United Nations Security Council Presidency for the last time before its two-year term in the Council ends, India will chair a special briefing on the “Global Counter Terrorism Architecture”, looking at the challenges ahead.

Centre constitutes 22nd Law Commission

The Centre has constituted the Law Commission of India by appointing former Karnataka High Court Chief Justice Ritu Raj Awasthi as its chairperson.

Law Commission of India

It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955

Tenure: 3 Years

Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”

Recommendations: NOT binding

First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833

Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

Its’ composition

The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

Full-time Chairperson;

Four full-time Members (including Member-Secretary)

Secretary, Department of Legal Affairs as ex-officio Member;

Secretary, Legislative Department as ex officio Member; and

Not more than five part-time Members.

Terms of reference

The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.

It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

Major reforms undertaken

The First Law Commission under Macaulay suggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.

These include the Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc.

Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones.

Role in legal reforms

The Law Commission has been a key to law reform in India.

Its role has been both advisory and critical of the government’s policies

In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations.

The Commission seeks to simplify procedures to curb delays and improve standards of justice.

It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.