What next in the tussle between government and social media firms?

Over the past few days, three instances of  between social and digital media majors and the government have surfaced.

On May 26, 2021, an IT ministry letter to social media platforms enquiring whether they had formed grievance redressal committees and appointed grievance redressal officers as per the new regulations, which had come into force from that day, reportedly caused widespread anxiety among the companies. Sources informed The Federal they had expectations that the government would again invite them for talks and some mid-way compromise would be reached. Instead, the government seemed to be going ahead in enforcing the rules.

The response of the firms has been mixed. Facebook announced that it would “aim to comply” with the new rules. Twitter, which is usually defiant in such cases of arms-twisting by governments, as seen when it refused to share user information with the US government surveillance program PRISM or abide by the Chinese government’s restrictions in Hong Kong, is silent. YouTube and Instagram, which are owned by Facebook, are also keeping mum.

The companies are in a dilemma. India is a huge market for social media users and hence a lucrative arena for advertising outreach by companies. As per data cited by the government, India has 53 crore WhatsApp users, 44.8 crore YouTube users, 41 crore Facebook subscribers, 21 crore Instagram clients, while 1.75 crore account holders are on microblogging platform Twitter. Koo too has close to 60 lakh users. Hence, there is big money here, which the companies would not like to lose by taking some rigid “principled” stand of defiance, even though the burden the new IT rules puts on them is onerous. They seem to be on a wait-and-watch mode to see whether the Modi government makes a partial climbdown in the face of media opposition and some cases of litigation.

Also read: Centre’s new rules for digital content vague, loaded with draconian clauses

But individuals owning smaller firms/apps like Dhanya Rajendran, chairperson of Digipub and the editor-in-chief of The News Minute (TNM), The Wire’s founding editor MK Venu and even an organisation, the Foundation of Independent Journalism, have filed cases in the Delhi High Court arguing these rules are illegal and unconstitutional.

The government cannot afford to act tough in the midst of a feeble economic recovery. A major chunk of the e-commerce business is also being run through social media. A major crackdown would hurt the economy. Where this unusual contention between tech majors and the government is heading is unpredictable. One can only hope that the government doesn’t resort to any precipitate action destabilising large parts of e-commerce when fresh lockdowns are on.

A Partial Climbdown

Facebook recently adopted a new controversial privacy policy for WhatsApp. Under it, the country would not track the personal messages of WhatsApp users, but would track the messages on commercial transactions and use the collected personal data for advertisement purposes. The government put its foot down. Europe has strong laws against the use of personal data and Facebook has said that the new privacy policy would not be applicable in Europe. Why then should it try to smuggle it in in the Indian context?

After some talks with the government, Facebook declared that it would not enforce the policy in India until India passes a new IT Act. Will this bring the issue to a close?

Perhaps not, because other social media sites like Twitter and Instagram still ‘commercialise’ personal data of users, and so do other smaller apps. There is no law yet preventing social media sites from commercialising personal data of users. Facebook itself is doing it though the controversy has surfaced only in the context of WhatsApp. Here the distinction between sites like Facebook and its apps like WhasApp is important. Social media sites can launch any number of apps, which can then commercialise the personal data of users. Note: We are using the word ‘commercialising’ and not ‘selling’. If they sell the personal data in an outright manner, they might still be sued in a court from the users themselves and might be penalised legally.

Usually, what these sites do is get the companies requiring such personal information for marketing purposes to place some advertisements on their sites. As a quid pro quo commercial transaction, the sites give them the user data on which individuals in what age-groups/other social categories viewed the advertisement by clicking on the concerned ad tab. This is a perfectly legal commercial transaction and even an obligation by the site that carries the ad. The data is then used by the concerned company to make appropriate marketing decisions based on data analytics.

Also read: OTT platforms pre-empt I&B ministry, bring out stringent self-regulatory code

Many social media firms/apps do it without declaring it in so many words. The mistake of Facebook was that it openly declared it as a policy instead of doing it on the sly and thereby forcing the government to act against Facebook’s new ‘privacy (transgression)’ policy. But there is no sign yet of the government acting proactively in all the cases where personal data of users are commercialised.

What has kindled political curiosity is that as an exceptional case, the usually pro-corporate Modi government has put its foot down and triumphed in Facebook’s case. Does it point to the emergence of a strong constituency of ‘digital nationalism’ in India?

Big Tech Lobbying

The NITI Aayog had posted a discussion paper on policy approach to artificial intelligence (AI) in India. On May 24, 2021, Google came up with an official response to this discussion paper and put it on the public domain. As one of the global monopolies possessing advanced artificial technology and developing many apps based on that in contention with Microsoft, Amazon and Apple, Google has lots of stake in any regulatory policy any government in a big market like India is trying to adopt.

Though Google doesn’t openly criticise Niti Aayog’s AI paper, it is clear that it is lobbying against strong regulation and argues against ‘one-size-fits-all’ regulatory framework and proposes different regulatory policies and mechanisms for different apps of different companies. Thereby, it is seeking relaxation for some of its AI-based apps like Contana, ELSA, Hound etc.

In fact, the original Niti Aayog paper itself was either vague or silent on many areas of AI-based digital services. AI is a double-edged sword and there are lots of risks associated with it. The internet is full of studies on the risks of AI use in healthcare, welfare planning and delivery, and even on taking investment and marketing decisions using AI-based data analytics.

The Niti Aayog paper is not only silent on guaranteeing free access to AI-based services to internet users in India, it proposes no fool-proof regulations on the monopoly dimension of it. Globally, the AI-based digital services industry is dominated by half a dozen monopoly biggies like Amazon and Google. If some big agri corporate corners AI-based smart farming technologies that go against the interest of farmers, any official policy should guarantee proper legal/policy safeguards against that.

The outcome of this tussle between big high-tech giants and the Indian government is eagerly awaited. True, communal and casteist messages and provocations against ethnic groups on the social media lead to flare-ups. But a draconian rule in the hands of the government can blackmail them anytime and make them Godi Media forever. Vinay Srinivasa, a prominent activist in Bangalore, says, “Any regulation of the digital media should be through an Act of Parliament only.”

Hyderabad-based Srinivas Kodali a digital media researcher with Free Software Movement, told The Federal, “The new IT Rules 2021 cover not only social media but also digital media, news and entertainment streaming apps, digital news media and thereby they also cover some of the old legacy media outlets, which also have a presence in the digital media. Even if some social media firms succumb, some others would challenge and the new IT rules cannot withstand a challenge in the court. Any instance of crackdown on any media outlet under the new rules would snowball into a major showdown and the latent media power which appears to be dormant presently would assert its full might.”

Hopefully, he is right as the very freedom of expression in India is at stake.