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A New Trend in Regulation: Social Media

In the 21st Century, social media is not restricted to sharing cute dog photographs or classroom-related memes. Its presence has more or less integrated into all aspects of life. Recent socio-political events like the United States Capitol riots in January 2021 have demonstrated how powerful social media can be as a tool. Yet, this space remains largely unregulated globally with its control concentrated in the hands of a few individuals.

The case Biden vs Knight First Amendment Institute (originally Trump vs Knight First Amendment Institute) debated the issue of whether the First Amendment deprives an official of the government to block someone on Twitter if that person uses their account for official purposes. Justice Clarence Thomas’ non-binding opinion in this case has reignited the debate on common carrier regulations surrounding social media. Justice Thomas opines that social media platforms should not be treated as spokespeople for the First Amendment but be viewed as neutral avenues that merely disseminate information.

He strengthens this argument by saying that digital platforms lay information infrastructure similar to how telephone companies laid networks to connect people. In this instance, the author of the information on social media is an individual, not the platform itself. Therefore, if social media was viewed as a common carrier, it would inhibit these companies from removing accounts based on political views as, in that case, common carriers do not have speech rights per se. This argument would thereby indicate that social media platforms do not have the right to exclude someone and are not an infringement on their First Amendment rights.

A contrasting argument to this is if social media companies do not self-regulate and exercise editorial discretion then these platforms could be filled with hate speech, pornographic material, promotion of violence, and other inappropriate content. The common-carrier tag would simply imply that these organisations will have to distribute content that is distasteful in nature and against their will.

Facebook and Twitter exercise editorial discretion by removing posts and banning individuals from their platforms. The most popular example of this is banning former President Donald Trump from Twitter. Richard Epstein, a Professor at New York University Law School and libertarian legal scholar who, in the past, has been critical of Trump, nevertheless disagrees with Twitter’s decision to ban him. Epstein contends that the discourse related to the First Amendment that only applies to government bodies and not to private parties is narrow in its scope. If Twitter was taken to be a monopoly, then it makes this issue complex. Epstein refers to the common law rule that monopolies cannot deny services to customers and must be non-discriminatory in nature. Although he acknowledges there is competition in the social media sector, he argues that Twitter and Facebook have an almost monopolistic-like position. Such a position in the market may lead to these companies being subjected to common carrier regulations.

On the other hand, the validity of Epstein’s monopoly-like claim can be contested by the example of the sudden rise of TikTok during the pandemic, giving popular mediums like Instagram a run for their money.

Justice Thomas stated, “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately-owned information infrastructure such as digital platforms". The case for regulations grows even stronger with the advent of "cyber" or "troll armies". Studies reveal that social media is increasingly being used as an instrument to manufacture consent and advance political propaganda. A plethora of tweets and hashtags from bots or fake accounts are being extensively used by authoritarian regimes to garner support and divide their political opposition. The use of bots can also suppress political opposition or counter-narratives, thereby distorting the illusion of social media as an emancipatory platform by revolutionaries such as during the Arab Spring. Mark Zuckerberg, who came under fire for Facebook’s role in elections, has also called for active participation of government agencies to set norms for this space whilst protecting freedom of speech and expression.

Nonetheless, current self-regulation trends by these platforms reveal discrepancies and bias in their approach. This is well illustrated by Twitter’s inadequate response to the vehement abuse directed at footballers leading to a four-day social media blackout by English soccer bodies. Rosen, a Law Professor at George Washington University asserts that Facebook has more power in regulating speech across the world than any head of state or court. For instance, these platforms currently have the power to adjudicate on subjective issues like what constitutes a violent threat or not. Another example is Facebook’s ban on nudity which has significant consequences on visual art.

Although advocates of free speech might disagree that social media needs to be regulated, governments across the world have voiced their concerns on the complete independence and self-policing practices in this omnipresent aspect of life. For instance, Germany’s Network Enforcement Act (NetzDG) places an obligation on social media platforms to remove hate speech within certain timeframes or pay fines if they fail to comply. In India, the Information and Technology Rules 2021 require large-scale social media companies to remove content after a court order or notice by an appropriate government body in a specified time frame. But excessive government regulations, especially in this sector, endangers the privacy of individuals. For instance, WhatsApp has recently sued the Indian government over its Information Technology Rules as they believe it undermines user privacy because it allegedly threatens end-to-end encryption.

Several questions emerge, such as whether social media should at all be regulated and, if so, to what extent? Should social media platforms that claim not to be newspapers have the right to exercise "editorial discretion"? Should there be a non-partisan and neutral agency or a designated government agency to oversee enforcement of issues such as the banning or suspension of accounts, posts, and other social media content?

To answer some of the many questions in this space, the Forum for Information and Democracy was tasked to suggest non-binding recommendations to over 30 countries including France, Germany, India, and the United Kingdom in their pursuit to prevent the spread of disinformation. One of their recommendations was to establish a statutory building code to ensure mandatory safety and quality norms on social media, similar to what electronic appliances require. Other suggestions included the implementation of circuit breakers in social media algorithms to ensure content does not have a massive reach or become "viral" without a proper fact-checking process. Another significant recommendation was to explain to users why certain content appeared in their feed, giving back-door access to the schematics of the personalised service these companies offer. Proponents of such regulations emphasise the need to monitor algorithms at the development stage of such platforms instead of imposing regulations that might not bring intended changes at the operations stage.

Social media regulations cannot be effective without international consensus. The interconnectedness of the virtual world makes it rather challenging for individual domestic laws to have a significant impact on making the platforms safe and limiting their influence. For instance, in India, a group of individuals were arrested and faced court proceedings after climate activist Greta Thunberg shared a toolkit on the ongoing farmer protests that they had created. Individual regulations implemented by states may be excessive and undermine fundamental rights like speech and privacy. Instead, international consensus and agreements that are ratified by states can be legitimate and far more effective.

That being said, international regulation and cooperation have not been as effective as anticipated in the globalised world. Challenges in the area of an international response can emerge from deciding on standards of regulation, the disparity in implementation, and enforcement. Due to such challenges, transnational private regulators (such as voluntary rules, practises, and guidelines collectively established by non-state actors) have emerged. For example, the Marine Stewardship Council established standards for sustainable fishing. These regulators in turn insinuate a collective self-regulation effort by social media platforms which can be viewed with a higher degree of credibility by states. Collective self-regulation with adequate measures is beneficial, enabling platforms to ensure that norms established are in sync with their operations and do not hamper competition to a significant extent.

Social media regulation and government oversight on these platforms are increasing while different approaches have been taken by various states. If collective self-regulation is viewed credibly in the international community it may avoid government intervention - the looming threat to these multinational enterprises.


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