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Big Tech is fighting hard to remain unregulated and to do as they please. On the opposite side of the ring are the world’s biggest democracies – India, Australia, Canada, the UK, and US who seek accountability and more transparent governance. The Modi government is not unique in the democratic world in holding a mirror up to Twitter et al, writes India Inc Founder and CEO Manoj Ladwa.
The face-off between social media companies like Twitter and WhatsApp on the one hand and the Government of India on the other is part of a larger fight being witnessed between democracies and Big Tech all over the world. You will see it playing out in the UK, US, in the EU, in the UK, Australia, Canada, New Zealand – and in India.
So, contrary to the build-up in sections of the media, this is not something that is unique to India and is most definitely not another alleged manifestation of the Narendra Modi government’s purportedly overarching desire to control and censor the free flow of information.
As I see it, there are three strands to the ongoing face-off in India.
Contrary to media reports, this is not something that is unique to India or another alleged manifestation of the Modi government’s overarching desire to censor the free flow of information.
The first concerns the crucial difference between an intermediary and a publisher. All over the world, countries have different laws for intermediaries and publishers. The former merely hosts content posted by third parties and takes no responsibility for it; the latter exercise editorial discretion and control. Therefore, the legal and constitutional positions of these two types of entities vary widely from each other.
Twitter, Facebook and some other social media companies claim to be content intermediaries, not publishers and, hence, want to be subject to the looser, easier norms that govern the former.
Fair enough. In that case these tech behemoths, and Twitter in particular, should not be taking down posts unilaterally or putting up “manipulated media” tags. That is clearly an editorial function and an editorial call.
They claim they have fact checkers and an independent panel of experts who judge whether any posted content is fake or, in the words of Twitter, “manipulated media”. However, they have refused to disclose who these fact checkers and independent experts are. The system is opaque and this leaves open the possibility of bias, of these fact checkers and experts being aligned to a particular political point of view and, therefore, partisan and one-sided.
How can they then claim to be intermediaries and not publishers? They should, therefore, be treated as publishers of content – bearing full responsibility for the same. They can’t have their cake and eat it too.
The second issue is over the appointment of grievance redressal officers in India. Social media companies were given three months to do so. The last date for that was May 26. Twitter, Facebook and others have deliberately not complied with the law of the land in India. Can you imagine their UK office or any country office in Europe saying they will not follow the law of the land they operate in?
The issue is simple. These companies have got used to operating in an unregulated environment and now do not want to follow laws that will cramp their ‘do as we please’ existence. On the issue of the grievance redressal officers, these companies have been passing the buck between their local office and their US head office whenever a complaint is filed – leaving victims of abuse in a limbo and subject to the whims of arbitrators sitting thousands of miles away who have no clue about cultural norms and nuances that are often at play. How?
The local office then claims to be a sales outpost only and lobs the complainant to the US head office. And guess what? The head office says the complaint pertains to India and, therefore, should be addressed to it.
Countries have different laws for intermediaries and publishers. The former hosts content posted by third parties and takes no responsibility for it; the latter exercise editorial control. Twitter, Facebook cannot tag content as manipulated – and editorial judgment – and still claim to be intermediaries.
The appointment of a grievance redressal officer in India will bring accountability into the operations of Twitter, Facebook, et al. That’s something they want to avoid at all costs.
All the surround sound – about caring for the Indian consumer, crusading for the freedom of information, the new regulations being a “dangerous overreach” and about alleged police intimidation – is just obfuscation and spin in order to confuse people and claim the high moral ground. What else can it be?
The third issue is that the Indian government wants WhatsApp to identify individuals who start a chain of illegal or offensive posts. WhataApp has claimed this will compromise the privacy of its 400 million Indian users and has gone to court against the order. It is within its right to do so and it has exercised that option. So far so good.
Many privacy advocates in India have also alleged that this order is another step by the Modi government to control the free of flow of information and is, therefore, tantamount to censorship.
The government has defended itself saying it does respect the privacy of individuals, but all rights are subject to reasonable restrictions.
Incidentally, India is not alone in seeking an end to this end-to-end encryption of messages in platforms such as WhatsApp and Signal. EU is considering it after several terror attacks in France and Austria last year.
The (Council of the European Union) “Draft Council Resolution on Encryption - Security through encryption and security despite encryption” dated November 6, 2020, states: “The European Union fully supports the development, implementation and use of strong encryption. Encryption is a necessary means of protecting fundamental rights and the digital security of governments, industry and society. At the same time, the European Union needs to ensure the ability of competent authorities in the area of security and criminal justice, e.g., law enforcement and judicial authorities, to exercise their lawful powers, both online and offline.”
The Five Eyes Nations – the US, the UK, Australia, New Zealand and Canada – are also considering creating so-called back doors to access encrypted messages under certain clearly defined conditions.
I haven’t heard or seen cries or breast beating about censorship and fascism in these countries. So, why the double standards when it comes to India?
It’s ridiculous for a private for-profit technology company to heckle the world’s largest democracy about what’s good for its citizens. Twitter is doing itself no favours by following this line. This is precisely what the Indian government is saying.
In any case, there are checks and balances in place to control the government’s alleged desire to control information. There is a due process enunciated in the law that has to be followed before a direction can be sent out to WA to break its end-to-end encryption to identify the source of an allegedly offending post.
There can be debate and negotiations over this due process and suggestions to ring fence it against possible misuse. Both sides should exercise this option instead of hardening their positions. But to say the government has no right to access this information questions its sovereign right to deal with data generated in India in ways permitted by law.
It’s also ridiculous for a private for-profit technology company to heckle the world’s largest democracy about what’s good for its citizens. Twitter is doing itself no favours by following this line.
So, far from being part of the Modi government’s alleged agenda to censor opponents, this is actually a bigger battle – between democracies trying to balance their citizens’ right to privacy with legitimate security concerns on the one hand and the hitherto untrammelled right of Big Tech to continue operate in an unregulated environment.
This battle will rage for a while before, I hope, a sensible compromise is reached.
Manoj Ladwa is the Founder and Chairman of India Inc. Group.