Model Question and Answers for APSC | The government should adopt a co-regulatory model of speech regulation of online speech. Critically discuss in the context of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,

Ans: Social media platforms regularly manage user content on their website. They remove, prioritise or suspend user accounts that violate the terms and conditions of their platforms. When a user’s post is taken down or their account is suspended, they can challenge such a decision. Similarly, when users see harmful/ illegal content online, they can flag the issue with the platform. Some platforms have complaint redressal mechanisms for addressing user grievances. For instance, Facebook set up the Oversight Board, an independent body, which scrutinises its ‘content moderation’ practices.

Content regulation earlier:

• It was voluntary for platforms to establish a grievance redressal mechanism through their terms of service until the government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
• These mandate platforms to establish a grievance redressal mechanism to resolve user complaints within fixed timelines.
• Recently, the government amended these Rules and established Grievance Appellate Committees (GACs). Comprising government appointees, GACs will now sit in appeals over the platforms’ grievance redressal decisions.

Problems with government led content regulation:

• In today’s online environment, however, the existing government control on online speech is Social media now has millions of users. Platforms have democratised public participation, and shape public discourse. As such, large platforms have a substantial bearing on core democratic freedoms.

• Further, with the increasing reach of the Internet, its potential harms have also increased. There is more illegal and harmful content online Disinformation campaigns on social media during COVID-19 and hate speech against the Rohingya in Myanmar are recent examples.
• With increased stakes in free speech and with increasing online risks, a modern intermediary law must re-imagine the role of governments.

A co-regulatory model of speech regulation of online speech:

• Under such a law, government orders to remove content must not only be necessary and proportionate but must also comply with due The recent European Union (EU) Digital Services Act (DSA) is a good reference point.
• The DSA regulates intermediary liability in the It requires government take-down orders to be proportionate and reasoned. The DSA also gives intermediaries an opportunity to challenge the government’s decision to block content and defend themselves. These processes will strongly secure the free speech of online users.
• Most importantly, an intermediary law must devolve crucial social media content moderation decisions at the platform level. Platforms must have the responsibility to regulate content under broad government guidelines.

Instituting such a co-regulatory framework will serve various functions:

• First, platforms will retain reasonable autonomy over their terms of Co-regulation will give them the flexibility to define the evolving standards of harmful content, thereby obviating the need for strict government mandates.
• This will promote free speech online because government oversight incentivises platforms to engage in private Private censorship creates a chilling effect on user speech. In turn, it also scuttles online innovation, which is the backbone of the digital economy.
• Second, co-regulation aligns government and platform Online platforms themselves seek to promote platform speech and security so that their users have a free and safe experience.

• For instance, during the pandemic, platforms took varied measures to tackle Incentivising platforms to act as Good Samaritans will build healthy online environments.
• Third, instituting co-regulatory mechanisms allows the state to outsource content regulation to platforms, which are better equipped to tackle modern content moderation challenges.
• Platforms as content moderators have substantial control over the free speech rights of users. Whenever platforms remove content or redress user grievance, their decisions must follow due process and be proportionate.
• But due process is not enough. Social media content moderation tools are not limited to the removal or suspension of posts. Platforms often use tools for the de-prioritisation of content to reduce the visibility of such content.
• Users are unaware of and unable to challenge such actions as they take place through platform algorithms that are often confidential. Platform accountability can be increased through algorithmic transparency.

An intermediary law should take the baton brought forward by the 2021 Rules. The GACs must be done away with because they concentrate censorship powers in the hands of the government. A Digital India Act is expected to be the successor law to the IT Act. This is a perfect opportunity for the government to adopt a co-regulatory model of speech regulation of online speech.