THE JUDICIAL CLOCK TICKS FOR FACEBOOK INDIA
By calling Facebook a media company the Supreme Court has opened the door for accountability and institutional scrutiny. EPISODE #32
Dear Reader,
A very Happy Monday to you.
Last week was eventful. Among other things, the ongoing scrutiny of social media by Indian institutions took an unexpected turn.
The Supreme Court while ruling on a Facebook claim that the Delhi assembly had no jurisdiction over it made some observations which could in future prove to be damaging to the company potentially. The apex court maintained that Facebook was a media company. The implication is obvious. Like any other media company Facebook too could be held accountable for the content hosted on its site—some of which, admittedly, is extremely dodgy.
To be sure these are observations. Yet they are significant. Not only is it part of the final court order, the judgement has been delivered by a three-judge bench. At the least these guardrails will influence the various courts when they rule on the raft of challenges being fielded against Facebook. I dwell this week on the ruling and the implications.
This week’s stunning cover photo is taken by a very talented Dubai-based journalist: Abhishek Sengupta. This is one of the takeaways from his African Safari. More power to his skills.
A big shoutout to Gautam, Shreekant, Vandana, Premasundaran, Mr Kelkar, Ajay, Harjot, Aashish and Rahul for your informed responses, appreciation and amplification. Gratitude also to all those who responded on Twitter and LinkedIn. It is key to growing this newsletter community. And, many thanks to readers who hit the like button 😊.
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A JUDICIAL SCRUTINY
Last week the Supreme Court delivered its judgement on whether Facebook, the social media juggernaut, should appear before the Delhi assembly. The short story is that it ruled that indeed Facebook will have to appear before the legislative assembly.
The punchline though is couched in the lengthy preamble of the final order issued by the three-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy. It unambiguously argues the fact that social media entities like Facebook will have to be held accountable for the content they host. Which is why this verdict is hugely important.
Further, this verdict comes at a time when the likes of Facebook and Google are under global scrutiny—more than 50 antitrust investigations are ongoing globally; recently the US Congress declared that it will rein in the social media giants through new laws. In India not only is it under scrutiny of Parliament, but various legal challenges against them ensure they are also under the purview of the judiciary.
For the moment last week’s verdict has provided guidance for all ongoing judicial hearing of challenges against Facebook. It is not possible to hazard the extent of the influence these guardrails will exert. It will depend on several factors, including the nature of the legal challenge. Yet it is safe to assume that the going just got tougher for Facebook.
The Guardrails
Interestingly the case came before the Supreme Court after Facebook declined to accept the summons of the Delhi legislative assembly to explain the misuse of social media during the recent communal riots in the capital. I am not sure whether Facebook bargained for the fact that the apex court would take a deep dive into the the social media giant’s ability in influencing (or manipulating as critics would argue) public opinion. Regardless the verdict has laid down legal guidance—if one may call it that—on ongoing cases pertaining to Facebook.
Firstly the apex court, which did some serious homework, makes clear that social media entities are too powerful to be ignored by public policy. Acknowledging the new digital reality it said:
“These digital platforms can be imminently uncontrollable at times and carry their own challenges. One form of digital platforms are the intermediaries that claim to be providing a platform for exchange of ideas without any contribution of their own.”
And then added:
“The power and potentiality of these intermediaries is vast, running across borders. These are multinational corporations with large wealth and influence at their command. By the very reason of the platform they provide, their influence extends over populations across borders.Facebook is one such corporation.”
Second, flowing from the above it observed that such immense power comes with responsibility:
“Facebook is the most popular social media platform in India with about 270 million registered users. Such vast powers must necessarily come with responsibility. Entities like Facebook have to remain accountable to those who entrust them with such power.”
Thirdly, dwelling on the problem of post-truth (or disinformation) it made a compelling observation:
“Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such “debates”, dividing the society vertically.”
Finally, the apex court goes on to put to rest the ambiguity about the identity of Facebook. The social media giant has for long, depending on the situation, claimed to be both a tech platform and a media company.
This ambiguity has been a source of lot of heart burn for traditional media; unlike Facebook they are not free to stray from their model of curated and verified news selection. And this has cost them eyeballs. With people voting with their feet, drawn by often low-quality yet hugely attention grabbing content—advertising too followed—destroying the business model of legacy media.
“It is difficult to accept the simplistic approach adopted by Facebook - that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information.
It is too late in the day for companies like Facebook to deny that they use algorithms (which are sequences of instructions) with some human intervention to personalise content and news to target users.
(The) algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content.”
The Implications
The single biggest takeaway from the legal guidance provided by the apex court is the fact that Facebook is a media company and its claim that it is just a platform and hence not accountable is no longer possible.
Equally significant is the fact that it acknowledges that platforms are like a broadsword—cuts both ways. So while platforms like Facebook do empower the voiceless, something critical in a democracy, it is equally likely to be an amplifier of fake news peddled by extremist organisations.
This is something long argued by Martin Sorrell, the founder of WPP Plc, the media and communications conglomerate. In 2017, during a visit to India, the trenchant Facebook critic made this abundantly clear in a press interaction. I am reproducing his quotes as published in Mint.
“They (Facebook, Google) are media companies. They still take the position publicly that they are technology companies. And I think that is wrong. Like newspapers, digital channels and TV channels are held responsible in many countries legally for content and the accuracy of the content that they print or propagate or publish; I believe these technology companies have to take responsibility for their content.”
“Whether you are right or wrong, it is immaterial. You can’t have people putting out the stuff on these channels—and they are channels of distribution and media—without some influence, control; otherwise there will be mayhem. And anyone who has been subjected to an attack rightly or wrongly on social media knows what I am talking about. You should be responsible for the content.”
The bottom line then is that this is the beginning of the end of the free run enjoyed by social media. Their scrutiny, especially by the judiciary and the executive, will only grow. This in turn will shape their future form and content. The trick though is for regulation to strike the right balance such that freedom of expression is protected even while the likes of fake news are filtered out.
A tall task indeed.
Recommended Viewing
This is a strange but welcome coincidence.
Last week I had shared a clip from the movie Manthan which also starred Smita Patil. So imagine my luck when I stumbled upon the Prasar Bharati archives on YouTube. And the very first video that popped up was an interview with Smita Patil. Listening to the brief chat was such a treat.
I am also sharing a historic clip from Indian politics.
The victory rally at Delhi’s Ram Lila maidan hosted by the Janata Party. It was the first time that the Congress party suffered a defeat in a general election. Vajpayee’s oratory (begins after seven minutes) and the energy and optimism of the public are unmissable.
Till we meet again next week. Stay safe.
Dear Anil,
Interesting and informative article on role of social media. In todays world any person who has a smart phone also has whatsapp, facebook, Instagram, Twitter etc.These are the apps which help people to connect with one another. But when people start misusing them it creates problem for the society. Facebook makes most of its revenue from advertisements as it has access to more than 2.8 billion people .You have very rightly pointed out that it needs to be more transparent and accountable and follow the law of the land.
The beautiful picture from Africa is I think of Serengeti National park , Tanzania. The colours of nature are amazing . It was wonderful listening to Vajpayee, orator par excellence. His mesmerizing oratory in Hindi, laced with wit, humour and sarcasm touched friends and foe alike.There are very few statesmen like him.Looking forward to the next Monday !!
The contribution of "tech platforms" to contemporary society could not have been imagined a decade ago. Families and friends from very ordinary backgrounds of society are able to do video conferencing across international borders at a very low cost. In the process of providing such a valuable service, these tech platforms have accumulated wealth and are now aware of the immense power at their command to influence perceptions and even elections, as was suspected, after the surprise win of Donald Trump. The welcome service provider has transformed into an unseen master influencer. Power without responsibility is dangerous and the Supreme Court has pulled up the uncontrolled media content and helping to guide the tech platforms to not create a Frankenstien in the making. This step is in the right direction. Very topical issue, as the Government has also replaced a senior minister, in order to create a congenial working atmosphere.