Facebook – Intermediary or Editor?

 

This post discusses the regulatory challenges that emerge from the changing nature of Facebook and other social networking websites

Facebook has recently faced a lot of criticism for circulating fake news and for knowingly suppressing user opinions during the 2016 U.S. elections. The social media website has also been criticised for over-censoring content on the basis of its community standards. In light of these issues, this post discusses whether Facebook can be considered a mere host or transmitter of user-generated content anymore. This post also seeks to highlight the new regulatory challenges that emerge from the changing nature of Facebook’s role.

The Changing Nature of Facebook’s Role

Social media websites such as Facebook and Twitter, Internet Service Providers, search engines, e-commerce websites etc., are all currently regulated as “intermediaries” under Section 79 of the Information Technology Act, 2000 (“IT Act”). An intermediarywith respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.” Accordingly, they are not liable for user-generated content or communication as long as they observe due diligence and comply with certain conditions such as acting promptly on takedown orders issued by the appropriate government or its agency.

 Use of Human Editors

While Facebook is currently regarded as an intermediary, some argue that Facebook has ceased to be a mere host of user-generated content and has acquired a unique character as a platform. This argument was bolstered when Facebook’s editorial guidelines were leaked in May, 2016. The editorial guidelines demonstrated that the apprehensions that Facebook was acting in an editorial capacity were true for at least some aspects of the platform, such as the trending topics. Reports suggest that Facebook used human editors to “inject” or “blacklist” stories in the trending topics list. The social media website did not simply rely on algorithms to generate the trending topics. Instead, it instructed human editors to monitor traditional news media and determine what should be trending topics.

These editorial guidelines revealed that the editors at Facebook regularly reviewed algorithmically generated topics and added background information such as video or summaries to them, before publishing them as trending topics. Further the social media website also relied heavily on traditional news media websites to make such assessments. Critics have pointed out that the editorial policy of Facebook is extremely inadequate as it does not incorporate guidelines relating to checking for accuracy, encouraging media diversity, respecting privacy and the law, or editorial independence.

Months after this revelation, Facebook eliminated human editors from its trending platform and began relying solely on algorithms to filter trending topics. However, this elimination has resulted in the new problem of circulation of fake news. This is especially alarming because increased access to the Internet has meant that a large number of people get their news from social media websites. A recent research report pointed out that nearly 66% of Facebook users in the U.S , get news from Facebook. Similarly, nearly 59% of Twitter users rely on the website for news. In light of this data, eliminating human discretion completely does not appear to be a sensible approach when it comes to filtering politically critical content, such as trending news.

Private Censorship

Facebook has also been criticised widely for over-censoring content. The social media website blocks accounts and takes down content that is in contravention to its “community standards”. These community standards prohibit hate speech, pornography or content that praises or supports terrorism, among others. In India, the social media website faced a lot of flak for censoring content and blocking users during the unrest that followed the death of Burhan Wani, a member of a Kashmiri militant organisation. Reports suggest that nearly 30 academics, activists and journalists from across the world were restricted from discussing or sharing information regarding the incident on Facebook.

Facebook’s community standards have also been criticised for lacking a nuanced approach to issues such as nudity and hate speech. The blocking of content by private entities on the basis of such “community standards” raises concerns of being too wide and the possible chilling effect that it can have on free speech. As highlighted before, Facebook’s unique position, where it determines what content qualifies as hate speech or praise of terrorism, allows it to throttle alternative voices and influence the online narrative on such issues. The power exercised by Facebook in such instances makes it difficult to identify it as only a host or transmitter of content generated by its users.

Conclusion

The discussion above demonstrates that while Facebook does not behave entirely like a conventional editor, it would be too simplistic to regard it as a host of user-generated content.

Facebook is a unique platform that enables content distribution, possesses intimate information about its users, and has the ability to design the space and conditions under which their users can engage with content. It has been argued that Facebook must be considered as a “social editor” which “exercises control not only over the selection and organisation of content, but also, and importantly, over the way we find, share and engage with that content.” Consequently, Facebook and other social media websites have been described as “privately controlled public spheres” i.e much like traditional media, they have become platforms which provide information and space for political deliberation.

However, if we agree that Facebook is more akin to a “privately controlled public sphere”, we must rethink the regulatory bucket under which we categorise the platform and the limits to its immunity from liability.

This post is written by Faiza Rahman.

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The Hindutva Judgements and Electoral Malpractice: A Recap

Last week, a seven Judge bench of the Supreme Court commenced hearing the much-anticipated appeals to decide the scope of Sections 123 (3)  of the Representation of People Act, 1951 (“RPA”), arising out of the “Hindutva cases”. However, on Tuesday, the Constitution bench caused a stir by stating that it will not reconsider its 1996 Manohar Joshi Judgement.  The Court reportedly said that it will not examine the meaning of “Hindutva” and will restrict itself to the issues raised in the reference.

This post seeks to discuss the background and nature of legal issues involved in the present appeal. This post will restrict its discussion to the issues pertaining to the scope of Section 123 of the RPA.

Electoral Corrupt Practices- A Background

Section 123 of the RPA defines “corrupt practices” in the electoral process.  The contentious part of the provision essentially prohibits a candidate or his agent or any third person with the candidate’s consent from appealing for votes or appealing to refrain from voting on the ground of his religion, race, caste, community or language.

In 1995-96, the Supreme Court had examined various appeals against the Bombay High Court verdicts which annulled the election of BJP and Shiv Sena candidates under this provision, during the Maharashtra assembly elections conducted after the 1992 Mumbai riots.

A three Judge bench, in Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kunte held that the words “his religion” in the text of Section 123 (3) cannot include any reference or appeal to religion. According to the Court, it is quite clear that the section refers to the candidate’s religion, caste or language. The Court stated that “the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought”. Further,“when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religions of that other candidate”.

Further, the Court clarified that during an election speech, reference can be made to any religion to “criticise any political party for practising discrimination against any religious group or generally for preservation of the Indian culture”. This, the Court said, cannot be called an appeal to vote on the ground of religion as prohibited under Section 123(3). It is only when religion, caste or language is used as a basis to garner votes for or against a candidate, does it amount to corrupt practice under Section 123(3) of the RPA.

At this point, it is interesting to note that unlike the abovementioned judgement, the seven Judge bench hearing the present appeal has been more inclined to give a wider meaning to the use of “his” in Section 123(3). The bench seems eager to include within its ambit, a reference to the religion of the candidate, his agent, or any other person who commits a corrupt practice with the candidate’s consent, his election agent and the voter. Further, the bench is particularly interested in examining if a religious leader’s appeal to his followers to vote for a particular political party will amount to “corrupt practice” under Section 123 of RPA.

What remains to be seen is how the Court will balance the right to freedom of speech of candidates and third parties with the concerns that stem from the use of religion, race, caste, communityor language as a basis for appealing for votes.

“Hindutva”:  A way of life or a religion?

In Yeshwant Prabhoo, the Supreme Court held that the “mere use of the word ‘Hindutva’ or ‘Hinduism’ or mention of any other religion in an election speech” does not bring it within the ambit of Section 123 (3) or 123(3A) of the RPA. The Court however, did not restrict itself to this assertion, it also went on to discuss the meaning of “Hinduism” and “Hindutva” in detail.  Speaking for the bench, Justice Verma stated that these terms depict the “way of life of Indian people” and cannot be confined “to the narrow limits of religion alone, excluding the content of Indian culture and heritage”. He said that their reference per se is not to be regarded as “promoting feelings of enmity or intolerance towards other religious communities or professing communalism”.

This understanding paved the way for the judgement in Manohar Joshi v. Nitin Patil. Here, the returned candidate promised that “the first Hindu State will be established in Maharashtra”, during an election meeting. A three Judge bench of the Supreme Court headed by Justice Verma held that this did not amount to “corrupt practice under Section 123 of the RPA. It stated that “a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope.” Further, the Court reiterated that it cannot be held that “in the abstract the mere word “Hindutva” by itself invariably must mean Hindu religion”.

Subsequently, in Abhiram Singh v. C.D Commachen, a three Judge bench of the Supreme Court was asked to test the validity of an electoral verdict against Section 123(3) of the RPA.  The Court underscored the need to delineate the circumstances under which electoral speeches would amount to “corrupt practices” under Sections 123(3) or 3A of the RPA and referred the matter to a larger bench. Thereafter, a five Judge bench headed by Justice Lodha clubbed the abovementioned matter with a similar matter that was scheduled to be heard by a seven Judge Bench.

As mentioned earlier, this seven Judge bench has refused to admit the plea asking it to reconsider its 1996 judgment and delve into the larger issue of whether Hindutva is a “way of life” or a reference to Hindu religion. On Tuesday, the Court clarified that it will only pronounce upon what constitutes “corrupt electoral practice” under Section 123(3) of the RPA. The Court has reasoned that it will not examine the meaning of “Hindutva” as the reference before it does not raise it as an issue.

 Conclusion

The discussion of the cases above demonstrates the need to balance three critical concerns when it comes to electoral malpractice and free political speech. First, the secular ethos of the election process should be maintained i.e. candidates should not ask for votes on the basis of religion, race, caste, community or language. Second, freedom of speech and expression should be the norm and restrictions should be an exception. Third, questions as to whether the electoral process should also provide avenues to legitimately criticize and expose discrimination practiced by political parties.

In light of these pressing concerns, it is surprising that the seven Judge bench hearing the present appeal has relied upon procedural propriety to justify its refusal to reconsider its previous judgements in entirety. As a result, the meaning of “ Hindutva” as expounded in the cases mentioned above, stands.This means that candidates can continue to garner votes on the basis of vague references to “Hindutva”, including promising to establish a Hindu state.

It is also clear from the proceedings that the Constitutional Bench is inclined towards widening the meaning of corrupt electoral practices under Section 123(3) of the RPA.  However, it will be interesting to see how the Court will do this in an age where election campaigns are being fought both in the physical and the virtual realm.