Novel platform regulation ideas government can adopt

Considering mechanisms such as a Social Media Council & a Good Samaritan clause can lead the content moderation space in India to a better reality

In early November 2020, the Union Government passed a notification stating that news and current affairs content on online platforms would be brought under the jurisdiction and control of the Ministry of Information and Broadcasting (I&B Ministry). This means that the I&B Ministry will moderate content on intermediaries, such as social media platforms (Facebook, Twitter), blogging platforms, video hosting platforms (YouTube). At the time, this raised concerns within civil society.

This seems like a bad omen for the freedom of speech, expression and the open internet. However, while those concerns may be justified, there has been little talk around the nuts and bolts of what this change might have in store for content on the internet. There is an ambiguous line between regulation and over-regulation in this space, and no policy solution is going to send everyone home happy. Keeping that in mind, it is worth looking at some interesting measures that can contribute to better governance in the space and how they might play out.

Establishing a Social Media Council

The EU has recently been considering reforming digital services and working towards Platform regulation through the Digital Services Act (DSA) Package. One of the considerations for the DSA has been to set up a Social Media Council (SMC). The idea was also debated in 2019 by Stanford’s Global Digital Policy Incubator (GDPI), ARTICLE 19, and David Kaye, UN Special Rapporteur on the Right to Freedom of Opinion and Expression, with a report available here.

The idea is to have an independent council that works as an open, transparent forum to talk about content moderation issues. The body would adhere to international standards of human rights and would be non-judicial, providing no legal obligations for platforms to follow. Having a range of perspectives is going to be vital to having an operational council, including representatives from platforms, media, journalists, content moderators, academics, and civil society.

There are a few things to consider in the Social Media Council model. As a concept, if done well, it does well to take some liability off platforms, giving contested content moderation decisions some legitimacy. However, since the number of posts on social media, and the subsequent content moderation calls are in the billions across Facebook, Twitter, Instagram, and Reddit every month, it is going to be impossible for the council to review each decision. That said, the council can still do meaningful work by laying out guiding principles in contested decisions, laying the groundwork for how similar decisions can be made in the future.

Given that any Social Media Council is likely to adopt international standards for content moderation practices, there will be times when its decisions may not align with domestic Indian laws. This could be addressed on a case-to-case basis where, depending on the circumstances, the platforms could either factor in the requirements of the SMC, or explain to the SMC that the regulations in place by the I&B Ministry would not allow them to follow the recommendations of the SMC.

The strength of the SMC lies in its multi-stakeholder approach. Given that the conventional role of the Ministry of Information and Broadcasting has been to regulate traditional media, the SMC would be an excellent model to test out if members are updated and have insights on content moderation on different platforms, and the evolving nature of business models of platforms, and expression online. It would benefit the platforms, as they would get a say in how these decisions are made (albeit not necessarily binding) and would take the pressure off (our already heavily burdened) courts.

There is some precedent for this model in the Facebook Oversight Board (yet to be functional at the time of writing). And while the oversight board’s decisions are going to be more binding than advisory (unless they call for a fundamental change in Facebook’s platforms), the SMC should proceed with a purely advisory role during its pilot years to demonstrate the effectiveness of the approach. It could be an exciting step towards more transparency and reinstating the case for a democratic internet society in India.

Good Samaritan clause

While the Ministry of Information and Broadcasting has a broad ambit of content to regulate now, we are also overdue for an update to the existing Intermediaries Guidelines. Currently, there is a provision to compel companies to take down content if it is, among other things, inflammatory or harmful to the sovereignty of India. While forcing companies to take down content can be an effective strategy depending on the context; there is something to learn from the good samaritan approach practised in the US. The good samaritan approach encourages platforms to take good-faith measures to moderate, edit, or take down unlawful content.

The regulation itself has not been perfect in the US. There have been calls for increased moderation and an overhaul from both sides of the aisle. However, none of those calls has been substantiated with a Bill that both sides of the aisle can agree on. Besides, Section 230(1)(c) of the Communications Decency Act (which establishes the good samaritan principle) has been under fire from outgoing President Donald Trump. But the regulation provides flexibility to platforms and at ground zero, is a better place to be compared to the current landscape.

The Ministry of Information and Broadcasting would still have the authority to regulate “news and current affairs” related content on online platforms, but if the platforms are encouraged to take good-faith measures to moderate content (with taking down/shadow-banning content using their best judgement without risking losing safe harbour immunity protections), we might be at a better place when the intermediary guidelines have been revised.

Democracy and content regulation

It is interesting to note that India is a partner to the International Partnership on Information and Democracy, a non-binding intergovernmental agreement endorsed by 37 other countries, which seeks to “promote and implement democratic principles in the global information and communication space.” By being a party to this agreement, India has expressed an intent to promote “national and international legal frameworks that are compliant and conducive to the right to freedom of opinion and expression”; and to combat any unduly restrictive measure against this right. India has further recognised the internet as being a space of democratic value.

Keeping that in mind, the moderation of “news” and “current” affairs online is especially sensitive since it will set the course of how Indian society receives information and expresses dissent. A well-informed society, able to make important moral judgements is a crucial pillar of a functioning democracy. For this purpose, unbiased; appropriately (not overly) moderated; and accurate information should be made available to citizens.

In sum, a combination of being party to soft law instruments like the International Partnership on Freedom and Democracy, considering mechanisms such as the social media council and a good samaritan clause can lead the content moderation space in India to a better reality. We know that there may be no fix to content moderation problems since moderation and regulation imply some amount of restriction. Still, the instruments discussed above are an excellent place to start.

(Rohan Seth is a technology policy analyst at The Takshashila Institution, Bengaluru and Nirali Trivedi is an associate at a leading law firm in Mumbai, India)

Disclaimer: The views expressed above are the authors’ own. They do not necessarily reflect the views of DH.