Excerpt: Earlier this week, a tweet by Amit Malviya, national in-charge of BJP’s IT department, was labeled as ‘manipulated media’. Leaving aside the political storm this caused, such labeling by Twitter raises serious questions.
Twitter, the popular microblogging platform, has been in the news since it started attaching labels to tweets – largely by U.S. President Donald Trump and his aides – warning users of the fact that the tweets were either misleading or that claims made in the tweet were disputed. Some of Trump’s tweets were disabled from plain sight and users had to click on the fine print to see what content he posted.
It may also be recollected that, when the scandal involving President-elect Joe Biden’s son Hunter Biden broke out in the New York Post, a daily established in 1801 by American founding father Alexander Hamilton, Twitter prohibited sharing that article in tweets as well as direct messages. It even locked the Twitter account of New York Post. While it had to reverse its policy after it realized the errors, that only happened after outrage from thousands of users including U.S. senators.
While the next Lok Sabha elections in India are over three years away, a few signs of what’s increasingly seen as editorializing by Twitter have emerged in Indian politics as well.
Earlier this week, a tweet by Amit Malviya, national in-charge of BJP’s IT department, was labeled as ‘manipulated media’. The tweet was in response to the Indian National Congress Vice President Rahul Gandhi’s tweet which contained a photo of a law enforcement official raising his baton to a protester participating in the ongoing farmers’ protests in the nation’s capital. Malviya posted a video showing that the official merely scared the protester with a gesture of swinging the baton.
Active social media users presented the full context which suggested that another official had hit the running protester with his baton and not the official whose photo was circulated by Rahul Gandhi.
Leaving aside the political storm this caused, such labelling by Twitter raises serious questions. Under Section 79 of the Information Technology Act, 2000, Twitter enjoys exemption from liability for content posted on its platform because the content is posted by third parties, i.e., Twitter users. It is regarded merely as an ‘intermediary’ – facilitator – which hosts content called ‘tweets’.
The import of Section 79 makes it amply clear that the intermediary must be a passive facilitator and not embark on a mission to self-censor. A 2015 Supreme Court judgment Shreya Singhal vs Union of India reaffirms that stand in regard to what the intermediaries are required to do, i.e., act (remove or disable access to content) pursuant to a court order or a notification from the government or its agency.
Moreover, the Information Technology (Intermediary Guidelines) Rules, 2011 – a set of rules specifically applicable to intermediaries – does not mandate intermediaries to actively identify misleading or inaccurate content. The due diligence required of the intermediary is to make the user sign a user agreement pursuant to which the user agrees not to disseminate content which (s)he does not have a right to, harms minors, violates a law, is hateful, pornographic and so on.
What happens if such an intermediary involves itself in creation, selection or modification of the content posted on its platform? It loses this protection as an intermediary – often referred to as ‘safe harbor’ protection – pursuant to Clause 2 of Section 79. This is because it is no longer an intermediary, but seeks to editorialize content.
It can be argued that, what Twitter seeks to do, does not amount to creation, selection or modification of content. It is simply a label attached to content which alerts the users to what Twitter thinks is misleading or inaccurate. Indeed, neither Section 79 of the IT Act, 2000 nor the IT Rules applicable to intermediaries explicitly contemplate such a situation in plain words.
Revised Rules are reportedly in the process of being finalized and shall perhaps be aligned with the Personal Data Protection Bill currently with a joint parliamentary committee. These Rules should consider expanding the scope of Clause 2 of Section 79 to ensure that social media platforms do not limit the reach of content in any manner or apply labels.
The reasons for this are aplenty. What Twitter seeks to do is an exercise fraught with subjectivity and bias.
Virtually any point of view can be misleading and almost any story or report published in media can have a larger context or a back story which isn’t highlighted. This isn’t to say that fake, incomplete or misleading content must be encouraged. If users find something posted on a social media platform by a political leader to be inaccurate, the same platform provides them the ability to post content which exposes that inaccuracy.
In other words, a book in response to a book, a tweet in response to a tweet. Users can evaluate contradictory content and make up their minds.
Isn’t this what routinely happens during electoral campaigns? Each candidate claims that the rival is lying and it is up to the voters to make up their mind. A claim in response to a claim. Why should Twitter, for example, get into this vetting process when it is merely an intermediary, a role for which it enjoys exemption from liability? In doing so, it is infantilizing its users, i.e., that they cannot determine for themselves what’s misleading and what’s not.
Furthermore, one of the fact agencies which Twitter cited in support of its ‘manipulated media label’ to Malviya’s tweet has itself needed a fact-check on multiple occasions.
Additionally, the way Twitter’s policy on prohibiting election misinformation was implemented, it indicated a bias in favor of one side. For example, a study revealed that, in a 14-day period, Twitter flagged over 100 tweets of President Trump whereas it flagged none of Joe Biden’s even though Biden’s repeated claims about Trump’s remarks on protesters in Charlottesville in 2017 were fact-checked on previous occasions by several outlets, including CNN.
What has happened with Malviya’s tweet promises to be just be the beginning. Twitter has signalled a clear intention to exercise its own authority, subjective and biased it could well be, on what is posted on its platform by users, especially in regard to elections.
It is time India redetermines the contours of the safe harbour protection social media platforms enjoy.
Kartikeya Tanna is a lawyer and political commentator. Views expressed are personal.