Shield harmony but do not use the sword against dissent

The January 6 incident in Washington DC and its aftermath can be seen as a key event in conveying traditional knowledge about social media control online. First, many now agree that some level of content control is needed to combat ‘fake news’ and hate speech, with the exception of free speech tyrants. Second, the ‘de-platforming’ of former President Donald Trump and Parlor is seen by many as proof that social media is “too powerful and biased” and that legislative intervention is needed.

There are valid concerns about what ‘fake news’ is, who decides it and how much control is too much. However, it is difficult to challenge traditional knowledge in the first place, at least on the surface. For Blackstone, at the time of writing in the 1700s, freedom of the press was a freedom against the licensing measures approved by the Stuart kings, which had to be cleared by authority before any book could be allowed to be printed. Social media behemoths are largely selected tools — labeling questionable posts and having some measure of control over how posts can go “viral” —not modern licensing laws, but only regulate the expansion of posts. The uncontrolled spread of material to millions of people does not have the right to free will, and these steps are reasonable and proportionate tools to stop the tide of fake news and hate speech that is undermining social harmony and our democratic institutions. More drastic action, such as deleting certain posts, will undoubtedly affect free speech. However, as Columbia Professor Tim Wu confidently argues, many of the arguments of traditional free speech theory do not hold up well in the modern information age and are based on a line that does not deserve some reconsideration. The information age, with its enthusiasm for data, needs a new example of free communication and new definitions of censorship, especially as these concepts are now being adopted by privately eaten companies.

The fact that light content control is required on social media does not mean that the state is doing this. While the state has the right to stop inciting or initiating crime, respect for free speech mandates as little role as possible in controlling speech beyond these broad lines. Blocking rules should be a shield against social inequality but not a sword against dissent. In such cases the courts must carefully draw the balance. Self-regulation of content by social media companies is new and deserves a living room before heavy control is considered.

The second part of traditional knowledge requires some unpacking. Consider the Twitter ban on Donald Trump. Civil libertarians see censorship in this, conservatives see it as “abolishing culture”, and various heads of state see it as disreputable. We need to look at the facts.

Twitter is a private service that does not rely too much on the government. It is not a public authority in any way. While this is definitely convenient, it is not the only way to reach people. Those who are banned by this can use other modes of communication — other apps or traditional means such as mailing lists and press presentations. When I sign in to a private service, I agree to abide by its terms and conditions and it does not. Defamation to remove the service if I violate them. The political impact of ejection via Twitter can be huge, but as a legal issue, it can be difficult to separate it from a restaurant for abusing a drunken customer. Yes, it is unfortunate that a company bans a head of state from using his services, but it is up to the heads of state to make sure not to put them in such an embarrassing situation. They must abide by its terms or terminate the service.

Parlor’s Amazon Web Services (AWS)’s failure to moderate its content has led critics to question AWS’s power to shut down other businesses. However, the case is not so simple.

For consumers, access to the Internet is a human right, and those who provide such access should be treated as public utilities. There is a difference between denying users access to the Internet and denying business access to the host platform if they fail to comply with the terms set by the hosting services.

Web hosting services do not rely on state licenses. Although not as large as AWS, there are many companies that offer hosting. As private businesses, they are entitled to make rules as long as they are subject to the rules of competition law. So far, no competition law has been violated by the AWS in parlor court. Also, there is no human right to force private companies to host unacceptable content. It looks like the parlor is now back online through a different service.

In both cases the energy consumed depends on the commercial success and the rules of use. It does not depend on the mandate of any state and does not violate human rights. If the state wants to decide who can tweet or what business to host, it can set up its own social network or web hosting service. Platforms have the power to control content and customers, subject to laws against unfair discrimination. There are remedies under infidelity and consumer laws for those who say they have been “unfairly” de-platformed.

When trying to stop the miasma of online information, the state should not be punished for the success of social media companies based on an incomplete understanding of power.

Rahul Narayan is a Record Lawyer in the Supreme Court of India working on Technology Law, Digital Rights and Privacy.

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