Understanding the ‘NetzDG’: Privatised censorship under Germany’s new hate speech law

By William James Hargreaves

The Network Enforcement Act

The Network Enforcement Act (NetzDG), a law passed on the 30th of June by the German Government operates to fine social media companies up to 50 million Euros – approximately 360 crore rupees – if they persistently fail to remove hate speech from their platform within 24 hours of the content being posted. Companies will have up to one week where the illegality of the content is debatable.

NetzDG is intended to hold social media companies financially liable for the opinions posited using their platform. The Act will effectively subject social media platforms to the stricter content standards demanded of traditional media broadcasters.

Why was the act introduced?

Germany is one the world’s strictest regulators of hate speech. The State’s Criminal Code covers issues of defamation, public threats of violence and incitement to illegal conduct, and provides for incarceration for Holocaust denial or inciting hatred against minorities. Germany is a country sensitive to the persuasive power of oratory in radicalizing opinion. The parameters of these sensitivities are being tested as the influx of more than one million asylum seekers and migrants has catalyzed a notably belligerent public discourse.

In response to the changing discourse, Facebook and a number of other social media platforms consented in December 2015 to the terms of a code of conduct drafted by the Merkel Government. The code of conduct was intended to ensure that platforms adhered to Germany’s domestic law when regulating user content. However, a study monitoring Facebook’s compliance found the company deleted or blocked only 39 percent of reported content, a rate that put Facebook in breach of the agreement.

NetzDG turns the voluntary agreement into a binding legal obligation, making Facebook liable for any future failure to adhere to it’s terms.

In a statement made following the law’s enactment, German Justice Minister Heiko Maas declared ‘With this law, we put an end to the verbal law of the jungle on the Internet and protect the freedom of expression for all… This is not a limitation, but a prerequisite for freedom of expression’. The premise of the position of Minister Maas, and the starting point for the principles that validate the illegality of hate speech, is that verbal radicalization is often time the precursor to physical violence.

As the world’s predominant social media platform, Facebook has curated unprecedented, and in some respects, unconditioned access to people and their opinions. With consideration for the extent of Facebook’s access, this post will focus on the possible effects of the NetzDG on Facebook and it’s users.

Facebook’s predicament

  • Regulatory methods

How Facebook intends to observe the NetzDG is unclear. The social media platform, whose users now constitute one-quarter of the world’s population, has previously been unwilling to disclose the details of their internal censorship processes. However given the potential financial exposure, and the sustained increase in user content, Facebook must, to some extent, increase their capacity to evaluate and regulate reported content. In response, Facebook announced in May that it would nearly double the number of employees tasked with removing content that violated their guidelines. Whether this increase in capacity will be sufficient will be determined in time.

However, and regardless of the move’s effectiveness, Facebook’s near doubling of capacity implies that human interpretation is the final authority, and that implication raises a number of questions: To what extent can manual censorship keep up with the consistent increase in content? Can the same processes maintain efficacy in a climate where hate speech is increasingly prevalent in public discourse? If automated censorship is necessary, who decides the algorithm’s parameters and how sensitive might those parameters be to the nuances of expression and interpretation? In passing the NetzDG, the German Government has relinquished the State’s authority to fully decide the answer to these questions. The jurisdiction of the State in matters of communication regulation has, to a certain extent, been privatised.

  • Censorship standards

Recently, an investigative journalism platform called ProPublica claimed possession of documents purported to be internal censorship guidelines used at Facebook. The unverified guidelines instructed employees to remove the phrase ‘migrants are filth’ but permit ‘migrants are filthy’. Whether the documents are legitimate is to some extent irrelevant: the documents provide a useful example of the specificity required where the aim is to guide one person’s interpretation of language toward a specific end – in this instance toward a correct judgment of legality or illegality.

Regardless of the degree of specificity, it is impossible for any formulation of guidelines to cover every possible manifestation of hate speech. Thereby interpreting reported content will necessarily require some degree of discretion. This necessity begs the question: to what extent will affording private entities discretionary powers of censorship impede freedoms of communication? Particularly where the discretion afforded is conditioned by financial risk and a determination is required within a 24-hour period.

  • Facebook’s position

Statements made by Facebook prior to the legislation’s enactment expressed concern for the effect the Act will have on the already complex issue of content moderation. ‘The draft law provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fine’ a statement noted. ‘(The Act) would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies’. Facebook’s reservation is telling: the company’s reluctance to adopt the role of moderator to the extent required alludes to the potential consequences of the liability imposed by the Act. 

The problem with imposing this form of liability

 Any decision made by a social media platform to censor user content will be supported by the anti-discrimination principles prescribed by the NetzDG. However, where the motivation behind discretionary decision-making shifts away from social utility towards financial management the guiding considerations become efficiency and risk minimisation. Efficiency and risk minimisation in this instance requires Facebook to either (i) increase capacity, which in turn results in an increased financial burden, or (ii) adopt guidelines that minimise exposure.

Seemingly the approach adopted by Facebook is to increase capacity. However, Facebook’s concerns that the Act creates financial incentives to adopt guidelines that minimise exposure are significant. Such concerns demonstrate an understanding that requiring profit motivated companies to do the work of the State within a 24-hour time frame will necessarily require a different set of parameters than those imposed on the regulation of oral hate speech. If Facebook, in drafting and applying those parameters, decides to err on the side of caution and, in some instances, censor otherwise legal content, that decision will have directly infringed the freedom of communication enjoyed by German citizens.

A democracy must be able to accommodate contrasting opinions if it purports to respect rights of communication and expression. Conversely, limitations on rights enjoyed may be justified if they benefit the majority. The NetzDG is Germany’s recognition that the nature of online communication – the speed at which ideas promulgate and proliferate, and the disconnect between comment and consequence created by online anonymity – require the existing limitations on the freedom of communication be adapted. Whether instances of infringement, are warranted in the current climate is a difficult and complicated extension of the debate between the utility of regulating hate speech and the corresponding consequences for the freedoms of communication and expression. The decision to pass the NetzDG suggests the German Government considers the risk of infringement is acceptable when measured against the consequences of unfettered hate speech.

Public recognition that NetzDG poses a risk is important. It is best practice that within a democracy, any new limit to liberty, oral or otherwise, be questioned and a justification given. Here the justification seems well-founded. However the answers to the questions posed by sceptics may prove telling as Germany positions itself at the forefront of the debate over online censorship.

(William is a student at the University of Melbourne and is currently interning at CCG)

Streaming platforms and self-censorship: An Indian perspective

Introduction

In May 2017, a movie titled ‘Angry Indian Goddesses’ was released on Netflix India. A censored version of the film, originally intended for theatrical release was made available. Critics brought attention to the self-censorship Netflix was resorting to, in the absence of censorship guidelines for streaming platforms. While theatrical releases are regulated by the Central Board of Film Certification, their jurisdiction does not extend to online platforms, as was recently made evident through an RTI response from the Ministry of Information and Broadcasting. Eventually, the director of ‘Angry Indian Goddesses’ informed viewers that Netflix had insisted on making the censored version available themselves.

Other platforms like Amazon Prime and Hotstar also indulge in the precarious practice of ‘self-censorship’. As per the law, films meant for theatrical release are certified by the CBFC. Through the process of certification, the CBFC has the power to request edits to the film. However, there is no legal stipulation for streaming services to censor content as the CBFC would. In some instances, documentaries, which were not intended for theatrical release in India, were available on streaming platforms in their censored forms. This post will navigate this phenomena of self-censorship.

What is the applicable law?  

Prior to the RTI response by the Ministry of Information and Broadcasting, there has been speculation over whether streaming platforms are Internet Protocol Television services (IPTV). IPTVs in India are bound by the Cable Television Networks (Regulation) Act, 1995, and need a license provided by the Department of Telecommunications to function. However, streaming services are considered to be over-the-top (OTT) services, and are not bound by the same regulations.

The status of streaming platforms has been considered by the judiciary as well. In 2016, a petition was filed in the Delhi High Court stating that the online streaming service Hotstar had made ‘soft pornographic’ content available on their platform. The petition stated that Hotstar, as an IPTV service, was in contravention of the downlinking guidelines. In response, Hotstar debated their status as an IPTV service and also categorically stated that they did not host any content that could be considered to be ‘soft pornography’.

This case has not made any progress since 2016, and there seems to be no judicial consensus on the status of streaming platforms as IPTV service providers.

In a recent judgment titled Raksha Jyoti Foundation vs. Union of India, the Punjab and Haryana High Court made references to an affidavit filed by the CBFC which would ensure that deleted parts of a film are not further released by other means. This would be carried out through undertakings, which the directors/producers would be held to. This system would effectively ensure that uncensored films are not made available on streaming platforms. It is unclear what the current position of this censorship procedure is, but if carried out, it would be in conflict with the RTI response.

Platform specific guidelines

Platforms like Netflix haven’t published censorship guidelines of their own, but they do have separate ‘maturity ratings’ according to country and region. The CEO of Netflix has also stated that they would have ‘airplane cuts’ of movies for different regions, stating that ‘entertainment companies have to make compromises over time’.

Why self-censorship?

Despite the absence of censorship laws applicable to streaming platforms, there are still other laws applicable to these platforms in India. As mentioned above, the downlinking guidelines were one such set of rules which were considered applicable. In addition, statutes like the Information Technology Act, 2000 and the Indian Penal Code, 1860 would also be applicable. It could be the case that streaming platforms are censoring content to ensure that they are in compliance with other statutes.

There is also a possibility that international services like Netflix and Amazon Prime are trying to find their place in the Indian market without drawing attention for the wrong reasons. Amazon for instance has publicly stated that they intend to keep in mind ‘Indian cultural sensitivities’ while making content available. In addition, platforms like Hotstar are run by parent companies like Star India, with ancillary business interests that they would be interested in protecting.

Conclusion

Unexpectedly, streaming platforms, which were meant to be avenues of free media in an age of heavily regulated television content, are following the same route as traditional media outlets.

This trend of self-censorship on streaming websites is similar to other internet platforms, who resort to self-censorship to avoid legal trouble. The tendency to ‘err on the side of caution’ is similar to platforms adhering to the intermediary liability laws in India. This form of tip-toeing around issues of regulation has led to a chilling effect on other internet platforms and could also lead to ‘over-censorship’ on streaming websites.

It is disconcerting that streaming websites are censoring content in the absence of laws, and leaves us speculating about the state of freedom of expression once censorship laws are in place.

How (not) to get away with murder: Reviewing Facebook’s live streaming guidelines

Introduction

The recent shooting in Cleveland live streamed on Facebook has brought the social media company’s regulatory responsibilities into question. Since the launch of Facebook Live in 2016, the service’s role in raising political awareness has been acknowledged. However, the service has also been used to broadcast several instances of graphic violence.

The streaming of violent content (including instances of suicide, murders and gang rapes) has raised serious questions about Facebook’s responsibility as an intermediary. While it is not technically feasible for Facebook to review all live videos while they’re being streamed or filter them before they’re streamed, the platform does have a routine procedure in place to take down such content. This post will visit the guidelines in place to take down live streamed content and discuss alternatives to the existing reporting mechanism.

What guidelines are in place?

Facebook has ‘community standards’ in place.  However, their internal regulation methods are unknown to the public. Live videos have to be in compliance with ‘community standards’, which specifies that Facebook will remove content relating to ‘direct threats’, self-injury’, ‘dangerous organizations’, ‘bullying and harassment’, ‘attacks on public figures’, ‘criminal activity’ and ‘sexual violence and exploitation’.

The company has stated that it ‘only takes one report for something to be reviewed’.  This system of review has been criticized since graphic content could go unnoticed without a report. In addition, this form of reporting would be unsuccessful since there is no mandate of ‘compulsory reporting’ for the viewers.  Incidentally, the Cleveland shooting video was not detected by Facebook until it was flagged as ‘offensive’, which was a couple of hours after the incident. The company has also stated that they are working on developing ‘artificial intelligence’ that could help put an end to these broadcasts. However, they currently rely on the reporting mechanism, where ‘thousands of people around the world’ review posts that have been reported against. The reviewers check if the content goes against the ‘community standards’ and ‘prioritize videos with serious safety implications’.

While deciding if a video should be taken down, the reviewers will also take the ‘context and degree’ of the content into consideration. For instance, content that is aimed at ‘raising awareness’, even if it displays violence, will be allowed. However, content that is celebrating such violence would be taken down. To demonstrate, when a live video of civilian Philando Castile being shot by a police officer in Minnesota went viral, Facebook kept the video up on their platform, stating that it did not glorify the violent act.

 Regulation

Other than the internal guidelines by which Facebook regulates itself, there haven’t been instances of government regulators, like the United States’ Federal Communications Commission intervening. Unlike the realm of television, where the FCC regulates content and deems material ‘inappropriate’, social media websites are protected from content regulation.

This brings up the question of intermediary liability and Facebook’s liability for hosting graphic content. Under American Law, there is a distinction between ‘publishers’ and ‘common carriers’. A common carrier only ‘enables communications’ and does not ‘publish content’. If a platform edits content, it is most likely a publisher. A ‘publisher’ has a higher level of responsibility for content hosted on their platform, unlike a ‘carrier’. In most instances, social media companies are covered under Section 230 of the Communications Decency Act, a safe harbor provision, by which they would not be held liable for third-party content.  However, questions have been raised about Facebook’s role as a ‘publisher’ or ‘common carrier’, and there seems to be no conclusive answer.

Conclusion

Several experts have considered possible solutions to this growing problem. Some believe that such features should be limited to certain partners and should be opened up to the public once additional safeguards and better artificial intelligence technologies are in place. In these precarious situations, enforcing stricter laws on intermediaries might not resolve the issue at hand. Some jurisdictions have ‘mandatory reporting’ provisions, specifically for crimes of sexual assault. In India, under Section 19 of the Protection of Children from Sexual Offences Act, 2012 ‘any person who has apprehension that an offence…is likely to be committed or has knowledge that such an offence has been committed’ has to report such an offence. In the context of cyber-crimes, this system of ‘mandatory reporting’ would shift the onus on the viewers and supplement the existing reporting system. Mandatory provisions of this nature do not exist in the United States where most of the larger social media companies are based.

Similarly, possible solutions should focus on strengthening the existing reporting system, rather than holding social media platforms liable.

Reviewing the Law Commission’s latest hate speech recommendations

Introduction

The Law Commission has recently released a report on hate speech laws in India. The Supreme Court in Pravasi Bhalai vs. Union of India  asked the Law Commission to recommend changes to existing hate speech laws, and to “define the term hate speech”. The report discusses the history of hate speech jurisprudence in India and in certain other jurisdictions. In addition, it stresses upon the difficulty of defining hate speech and the lack of a concise definition. In the absence of such a definition, certain ‘identifying criterion’ have been mentioned, to detect instances of hate speech. It also discusses the theories of Jeremy Waldron (the ‘dignity’ principle) and makes a case for protecting the interests of minority communities by regulating speech. In this regard, two new sections for the IPC have been proposed. They are as follows:

(i) Prohibiting incitement to hatred-

“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a)  uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b)  advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

(ii) Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The author is of the opinion that these recommended amendments are vague and broadly worded and could lead to a chilling effect and over-censorship. Here are a few reasons why the recommendations might not be compatible with free speech jurisprudence:

  1. Three – part test

Article 10 of the European Convention on Human Rights lays down three requirements that need be fulfilled to ensure that a restriction on free speech is warranted. The Law Commission report also discusses this test; it includes the necessity of a measure being ‘prescribed by law’, the need for a ‘legitimate aim’ and the test of ‘necessity and proportionality’.

Under the ‘prescribed by law’ standard, it is necessary for a restriction on free speech to be ‘clear and not ambiguous’. For instance, a phrase like ‘fear or alarm’ (existing in Section 153A and Section 505) has been criticized for being ‘vague’. Without defining or restricting this term, the public would not be aware of what constitutes ‘fear or alarm’ and would not know how to comply with the law. This standard has also been reiterated in Shreya Singhal vs. Union of India, where it was held that the ambiguously worded Section 66A could be problematic for innocent people since they would not be aware as to “which side of the line they fall” towards.

  1. Expanding scope to online offences?

The newly proposed sections also mention that any ‘gravely threatening words within the hearing or sight of a person’ would be penalized. Presumably, the phrase ‘within the sight or hearing of a person’ broadens the scope of this provision and could allow online speech to come under the ambit of the IPC. This phrase is similar to the wording of Section 5 (1) of the Criminal Justice (Public Order) Act, 1986[1] in the United Kingdom, which penalizes “harassment, alarm or distress”. Even though the section does not explicitly mention that it would cover offences on the internet, it has been presumed to do so.[2]

Similarly, if the intent of the framers of Section 153C is to expand the scope to cover online offences, it might introduce the same issues as the omitted Section 66A of the IT Act did. Section 66A intended to penalize the transmission of information which was ‘menacing’ and also which promoted ‘hatred or ill will’. The over-breadth of the terms in the section led to scrapping it. Another reason for scrapping the section was the lowering of the ‘incitement’ threshold (discussed below). Even though the proposed Section 153C does not provide for as many grounds (hatred, ill will, annoyance, etc.), it does explicitly lower the threshold from ‘incitement’ to ‘fear or alarm’/’discrimination’.

  1. The standard of ‘hate speech’

 The report also advocates for penalizing the ‘fear or alarm’ caused by such speech, since it could potentially have the effect of ‘marginalizing a section of the society’. As mentioned above, it has been explicitly mentioned that the threshold of ‘incitement to violence’ should be lowered and factors like ‘incitement to discrimination’ should also be considered.

The Shreya Singhal judgment drew a distinction between ‘discussion, advocacy and incitement’, stating that a restriction justifiable under Article 19(1) (a) of the Constitution would have to amount to ‘incitement’ and not merely ‘discussion’ or ‘advocacy’. This distinction was drawn so that discussing or advocating ideas which could lead to problems with ‘public order’ or disturbing the ‘security of the state’ could be differentiated from ‘incitement’ which establishes more of a ‘causal connection’.

Similarly, if the words used contribute to causing ‘fear or alarm’, the threshold of ‘incitement’ would be lowered, and constitutionally protected speech could be censored.

Conclusion

Despite the shortcomings mentioned above, the report is positive in a few ways. It draws attention to important contemporary issues affecting minority communities and how speech is often used to mobilize communities against each other. It also relies on Jeremy Waldron’s ‘dignity principle’ to make a case for imposing differing hate speech standards to protect minority communities. In addition, the grounds for discrimination now include ‘tribe’ and ‘sexual orientation’ amongst others.

However, existing case laws, coupled with recent instances of censorship, could make the insertion of these provisions troubling. India’s relationship with free speech is already dire; the Press Freedom Index ranks the country at 133 (out of 180) and the Freedom on the Net Report states that India is ‘partly free’ in this regard. The Law Commission might need to reconsider the recommendations, for the sake of upholding free speech. Pravasi Bhalai called for sanctioning politicians speeches, but the recommendations made by the Law Commission might be far reaching and the effects could be chilling.

 

[1] Section 5- Harassment, alarm or distress.
(1)A person is guilty of an offence if he—
(a)uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening or abusive,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

[2] David Wall, Cybercrime: The Transformation of Crime in the Information Age, Page 123, Polity.

Censorship & certification – Outlining the CBFC’s role under law

The Central Board of Film Certification (CBFC) functions as the primary body certifying films for public exhibition in India. It is guided by the Cinematograph Act, 1952, and various rules and guidelines in determining the nature of certification to be granted to a film. However, over the past few months, reports about the CBFC’s alleged overreach – moving from certification of films to moral policing, for instance, by denying certification to films which address LGBTQ issues – have made the news.  This post outlines the legal framework within which the CBFC operates and discuss the prospects for change within this framework.

The CBFC was constituted under the Cinematograph Act, 1952 (Act), which aims to provide for the certification of cinematograph films for exhibition. Specifically, the CBFC was set up for the purpose of ‘sanctioning films for public exhibition’. The law however, also allows the CBFC to require modifications to be made to a film before providing such sanction / certification.

Over time, the CBFC has increasingly used this power to direct cuts in films for various reasons, leading to it being commonly referred to as the ‘censor board’. In recent months, the CBFC has stirred up controversy in relation to certification (or the lack thereof), of films with subject matter ranging from feminism / women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation drive. The increasing possibility that a film will not even be granted certification for public exhibition, has led to fears that self-censorship will become a norm.

This fear seems to have permeated into the online video streaming industry already. Today, it isn’t clear whether streaming service providers are required to abide by the certification norms under the Act. While streaming platforms differ in their approach, and some providers choose to stream unedited i.e. ‘un-censored’ content, others are choosing to make only certified versions of films available online. There have also been controversial claims of service providers choosing to edit / censor content beyond the requirements of the CBFC.

The legal framework within which the CBFC operates is outlined below.

As described above, the CBFC is the sanctioning body which certifies films for public exhibition. The Act also allows for the setting up of regional centers or ‘advisory panels’ to assist the CBFC in its functions.

The Act provides that any person who wishes to exhibit a film should make an application to the CBFC for certification. The CBFC may (after examining the film, or having it examined):

  • sanction the film for unrestricted public exhibition, subject to requiring a caution to be provided stating that parents / guardians may consider whether a film is suitable for viewing by a child if required (i.e. grant a U or UA certificate)
  • sanction the film for public exhibition restricted to adult viewers (i.e. grant an A certificate)
  • sanction the film for public exhibition restricted to members of a certain profession or class of persons based on the nature of the film (i.e. grant an S certificate)
  • direct that certain modifications are made to the film before sanctioning the film for exhibition as described above, or
  • refuse to sanction the film for public exhibition.

The Act, as well as the Cinematograph (Certification) Rules, 1983, also provide detailed procedures for the appointment of members of the CBFC and the advisory panels, and appellate bodies, applications for certification, and appeals to the decision of the CBFC. The Act also provides for revisionary powers of the Central government in relation to the decisions of the CBFC.

In addition to the above, the Act provides principles on the basis of which the CBFC may refuse to certify a film – namely, “if a film or any part of it is against the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of an offence”.

These principles are further supplemented by the certification guidelines issued by the Central Government in 1991, in accordance with the powers granted to it under the Act.

These guidelines provide five objectives for film certification under the Act: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social changes; (d) the medium of film provides clean and healthy entertainment; and (e) the film is of aesthetic value and cinematically of a good standard.

In order to meet these objectives, the guidelines require the CBFC to ensure that films do not contain (a) scenes that glorify / justify activities such as violence, drinking, smoking or drug addiction, (b) scenes that denigrate women, (c) scenes that involve sexual violence or depict sexual perversions, or (d) scenes that show violence against children, among many others.

The language used in many of these guidelines, while perhaps well intended, is vague, and allows for wide discretion in certification subject entirely to the sensibilities of the individual members of the CBFC.

In 2016, the Ministry of Information & Broadcasting set up a committee to evolve broad, but clear guidelines/ procedures to guide the CBFC in the certification of films. The committee was headed by noted film maker Mr. Shyam Benegal. The committee, in its report, has expressed the view that it is not for the CBFC to act as a ‘moral compass’, and decide on what constitutes glorification or promotion of certain issues.

The committee’s report suggests that the only function of the CBFC should be to determine which category of viewers a film can be exhibited to. The committee’s report has suggested new guidelines, with the following objectives: (i) children and adults are protected from potentially harmful or otherwise unsuitable content; (ii) audiences (and parents / those responsible for children) are empowered to make informed viewing decisions; (iii) artistic expression and creative freedom are not unduly curbed in the classification of films; (iv) the process of certification is responsive to social changes.

The committee’s recommendations are yet to be implemented, however, news reports suggest that work is currently underway to modify the new guidelines suggested in the report.

It is interesting to note that the committee’s report does not address the issue of certification requirements for films available on online streaming platforms. In March 2016, the CBFC had suggested that it would require all or film-makers, producers, and directors in India to sign an undertaking stating that they would not share with / release ‘excised portions of a feature or a film to anybody’, including streaming service providers.An affidavit to this effect was accepted by the Punjab & Haryana High Court, which suggested in its order that such steps would be sufficient to ensure that ‘censored’ content would not be available. However, later that year, the Ministry of Information and Broadcasting confirmed in a response to an RTI application, that they do not intend to regulate or censor online content.

The Supreme Court Hears Sabu Mathew George v. Union of India – Another Blow for Intermediary Liability

The Supreme Court heard arguments in Sabu Mathew George v. Union of India today. This writ petition was filed in 2008, with the intention of banning ‘advertisement’ offering sex selective abortions and related services, from search engine results. According to the petitioner, these advertisements violate Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 (‘PCPNDT Act’) and consequently, must be taken down.

A comprehensive round up of the issues involved and the Court’s various interim orders can be found here. Today’s hearing focused mainly on three issues – the setting up of the Nodal Agency that is entrusted with providing details of websites to be blocked by search engines, the ambit and scope of the word ‘advertisement’ under the PCPNDT Act and thirdly, the obligation of search engines to find offending content and delete it on their own, without a government directive or judicial order to that effect.

Appearing for the Central Government, the Solicitor General informed the Court that as per its directions, a Nodal Agency has now been constituted. An affidavit filed by the Centre provided details regarding the agency, including contact details, which would allow individuals to bring offending content to its notice. The Court was informed that Agency would be functional within a week.

On the second issue, the petitioner’s counsel argued that removal of content must not be limited only to paid or commercial advertisements, but also other results that induce or otherwise lead couples to opt for sex selective abortions. This was opposed by Google and Yahoo! who contended that organic search results must not be tampered with, as the law only bans ‘advertisements’. Google’s counsel averred that the legislation could never have intended to remove generic search results, which directly facilitate information and research. On the other hand, the Solicitor General argued that that the word ‘advertisement’ should be interpreted keeping the object of the legislation in mind – that is, to prevent sex-selective abortions. On behalf of Microsoft, it was argued that even if the broadest definition of ‘advertisement’ was adopted, what has to be seen is the animus – whether its objective is to solicit sex selective abortions, before content could be removed.

On the third issue, the counsel for the petitioner argued that search engines should automatically remove offending content – advertisements or otherwise, even in the absence of a court order or directions from the Nodal Agency. It was his contention that is was not feasible to keep providing search engines with updated keywords and/or results and the latter should employ technical means to automatically block content. This was also echoed by the Court. On behalf of all search engines, it was pointed out that removal of content without an order from a court or the government was directly against the Supreme Court’s judgment in Shreya Singhal v. Union of India. In this case, the Court had read down Section 79 of the Information Technology Act 2000 (‘IT Act’) to hold that intermediaries are only required to take down content pursuant to court orders or government directives. The Court seemed to suggest  that Shreya Singhal was decided in the context of a criminal offence (Section 66A of the IT Act) and is distinguishable on that ground.

Additionally, it was also pointed out that even if the respondents were to remove content on their own, the lack of clarity over what constitutes as an ‘advertisement’ prevents them from deciding what content to remove. Overbroad removal of content might open them up to more litigation from authors and researchers with informative works on the subject. The Court did not offer any interpretation of its own, except to say that the ‘letter and spirit’ of the law must be followed. The lack of clarity on what is deemed illegal could, as pointed out by several counsels, lead to censorship of legitimate information.

Despite these concerns, in its order today, the Court has directed every search engine to form an in-house expert committee that will, based “on its own understanding” delete content that is violative of Section 22 of the PCPNDT Act. In case of any conflict, these committees should approach the Nodal Agency for clarification and the latter’s response is meant to guide the search engines’ final decision. The case has been adjourned to April, when the Court will see if the mechanism in place has been effective in resolving the petitioner’s grievances.

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.