Social Media Regulation: Challenges and Way Forward

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Context

India can learn from Nepal's social media ban about the consequences of regulatory overreach and how sudden, unilateral actions can result in strong public opposition.

What Happened In Nepal?

Nepal banned 26 social media platforms for not registering with the Ministry of Communications and Information Technology, to curb fake news and hate speech.

The ban followed viral videos exposing politicians’ children living luxuriously while most Nepalis faced poverty. Youths saw the ban as an attempt to silence anti-corruption voices.

Gen Z (youth under 28), especially students, led protests, upset over corruption, joblessness, and inequality, organized the movement.

Protests started peacefully in Kathmandu but grew violent.

The PM resigned, and the social media ban was removed.

Social Media: A Tool with Two Edges

The "Good" Edge: Benefits and Positive Impacts

Improves Communication: Social media platforms help people and organizations share information at lightning speed.

Supports Good Governance: Boost citizen involvement in decision-making. For example, the Police used Twitter during lockdowns to provide updates.

Empowers marginalised Groups: Platforms for diverse communities to voice opinions and fight for their rights.

• Women use it to advocate for gender equality and social issues, like the #MeToo movement.
• LGBTQIA+ individuals find visibility, platforms for advocacy, education, and community support.

Strengthens Democracy: Bridges gap between citizens and their elected leaders, making democracy more participatory and promoting diverse ideas.

Creates Economic Opportunities: Businesses use social media for cost-effective marketing, customer engagement, brand promotion, and reaching a global market.

The "Sharp" Edge: Disadvantages and Challenges

Spreads Misinformation and Fake News

False or misleading information spreads quickly, influencing people's decisions, endangering public health (e.g., false information about COVID-19 vaccines), cause violence, like mob-lynching incidents linked to WhatsApp rumors.

Raises Privacy Concerns

Social media platforms collect personal data, including photos, videos, location, browsing habits, and private messages.

Concerns arise due data breaches, identity theft, or data sharing with third-party apps.

Cyberbullying and Harassment

Social media becomes a place for cyberbullying, causing mental health problems, social exclusion, and emotional distress.

Anonymity makes bullies bolder, and constant online interaction makes it hard for victims to escape.

Social Media Addiction

Spending too much time on these platforms harm mental health, leading to depression, anxiety, loneliness, and affecting productivity and relationships.

Encourages Discrimination and Hate Speech

Platforms promote discrimination based on race, gender, sexual orientation, or religion, leading to hate speech, trolling, and targeted attacks that create social divisions.

Impacts the Judiciary and Fair Trials

Misinformation and distorted legal information shared online swing public opinion, create biases, and compromise the fairness of trials.

Regulatory Framework for Social Media in India

Information Technology Act, 2000 (IT Act): Provides a legal framework for e-governance and deals with cybercrimes.

• Section 69A provides the Government power to block public access to information to protect India's sovereignty, integrity, defense, security, public order, or to prevent inciting serious offenses.
• Section 79 grants "Safe Harbour" protection to intermediaries (like social media platforms); they are not liable for content posted by users, as long as they perform "due diligence" and remove unlawful content when notified.

Supreme Court case, Shreya Singhal vs Union of India (2015), struck down Section 66A of the IT Act, which criminalized "offensive" online messages.

• The Court found it unconstitutional because it placed unreasonable restrictions on free speech.
• Court stated that online speech deserves the same constitutional protection as offline speech.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021):

• Establish Grievance Redressal Mechanism: Appointing a resident grievance officer, a chief compliance officer, and a nodal contact person in India, also submit monthly reports on complaints and actions taken.
• Content Removal: Platforms must remove objectionable content within specific timeframes when a court or government agency requests it.
• Traceability of Originator: Mandates messaging apps to identify the "first originator" of unlawful messages when the government or courts demand it.

Digital Personal Data Protection Act (DPDPA), 2023: Comprehensive data privacy law protecting citizens' digital personal data by outlining rights for individuals (Data Principals) and obligations for entities processing data (Data Fiduciaries).

• Mandates clear consent for data processing, establishes a Data Protection Board to enforce compliance with penalties up to ₹250 crore.

Challenges in Social Media Regulation

Balancing Fundamental Rights: Main challenge involves finding a balance between freedom of expression (Article 19(1)(a)), the right to privacy (Article 21), and the need to maintain public order and national security.

Vague Provisions: Critics argue that some rules, like parts of the IT Rules, 2021, are unclear and too broad, could lead to censorship.

Conflict with End-to-End Encryption: Demand to trace message originators directly conflicts with the security of end-to-end encryption, threatening users' privacy.

Broad Intermediary Definition: The IT Rules define "social media intermediary" very broadly, including almost every online platform (telecom providers, search engines, online retailers, gaming apps), concerns about extensive monitoring and surveillance.

Loss of Safe Harbour Immunity: Making "Safe Harbour" protection conditional on strict "due diligence" pushes platforms to remove content, leading to over-censorship to avoid liability.

Jurisdictional Issues: Social media operates globally, making it hard for Indian courts to enforce regulations against foreign companies or content originating outside India.

Moving Forward: Responsible and Credible Social Media

Update the IT Act

Modernize the legal framework by replacing or updating the Information Technology Act, 2000, with a more comprehensive Digital India Act that addresses the complexities of a 21st-century digital ecosystem.

Balance regulation with free speech

Any legal framework must walk a fine line between curbing harmful content and protecting the constitutional right to freedom of speech.

Any restrictions should be objective, clear, and proportionate to the harm caused, with judicial oversight to prevent government overreach or censorship.

Enhance platform accountability

Hold social media companies more accountable for the content on their platforms, removing the "safe harbor" immunity for non-compliant platforms and imposing penalties for delayed or inadequate action. 

Promote ethical usage

Conduct awareness campaigns against cyberbullying, online harassment, and the potential negative impacts of social media on mental health.  

Multi-stakeholder cooperation

Regulation and policy-making should involve collaboration between government, social media platforms, academia, and civil society.

Cooperate with international bodies and other countries to develop unified norms and strategies for tackling issues like misinformation and cybersecurity. 

Global Examples in Social Media Regulation

The US protects free speech, unless it directly initiates immediate violence. The Communications Decency Act provides online platforms broad immunity, freeing them from legal responsibility for user-posted content.

China uses a strict liability framework, forcing platforms to actively monitor, filter, and remove content that threatens national security.

Best Practices => A successful model that balances free speech with protection from hatred and violence, focus on regulating the most harmful content, like terrorism-related material, while allowing platforms to self-regulate other content  

Conclusion

India must balance the benefits of social media with its harms to fully utilize its potential while protecting individual rights and democratic values in the digital age. This requires strengthening legal frameworks, promoting digital literacy, and promoting shared responsibility among platforms, users, and the government. 

Source: INDIAN EXPRESS