Neither Facebook cares about the hate speech being spread all over via its platform nor does the government in India is strong enough to make these intermediaries work hard to protect user privacy and stop hate speech. 

In 2021, Facebook was under the scanner multiple times and rightly so, for its hate speech regulation. Political bias, indifference to hate speech and fake news, unclear algorithms that steer users to certain types of material, insufficient privacy settings, and excessive and unaccountable ability to impact public conversation are among the charges leveled against Facebook by no one other than its former employee-turned-whistleblower Frances Haugen. 

Inadequacies to limit hate speech in IT act

Digitization has evolved enormously and now firmly integrates with a diverse variety of individuals and societal actions across India. The Information Technology Act, 2000 (hereafter “IT Act”) is the underpin of India’s regulatory framework for internet regulation. However, substantial technological, policy, and legal advances have occurred in the two decades after the IT Act was first passed, which successive modifications have not been able to fully account for. 

When in 2000, the IT Act was enforced only 0.5% of the population (about 55 lakh citizens) accessed the internet. As of 2021 more than 60% of the population (about 825 million citizens) access the internet and, as a result, the question of modifying the IT Act has come up several times in recent years.  

The Act was enacted 21 years ago to oversee the e-commerce trade in India. However, in the context of rising social media platforms and the dynamic complexities that accompany technology’s exponential expansion, the present legal framework falls short. 

The Information Technology Act is India’s de facto architecture for digital regulation. It is, however, far distant from present technological realities, necessitating a reboot to examine the social implications of digitization and to ensure that the governance structure is founded on the rule of law and respects fundamental rights. 

Limitations of Information Technology include the acquisition of personal data, the right of user privacy, freedom of speech and expression, and citizen surveillance. As a result, the Act is now the key facilitator in regard to e-commerce and e-governance law. In the absence of a rights-friendly approach to the IT Act, neither the distant ideal of decent e-governance nor the creation of an efficient legal framework to guarantee citizens’ basic rights in the digital era can be realized.

With the emergence of artificial intelligence and machine learning, the legal framework should be more detailed and effective. The IT Act’s regulatory structure is ambiguous and prone to imposing disproportionate limits on freedom of speech and expression. Arbitrary regulations have a chilling impact on free speech and expression in light of the emerging and expanded usage of social media platforms.

Whether it is the power to retain information or surveillance data in order to trace the originator under section 7 or the obligation to provide access to computer data to authorities under section 29, ambiguous terminology such as a reasonable cause or satisfaction of the controller creates an encroachment of political censorship and encourages government surveillance. 

The introduction of progressive data protection frameworks has been a key change since the passage of the IT Act. In its decision in Justice K. S. Puttaswamy (Retd.) and Anr. V. Union Of India And Ors, The Supreme Court maintained that the Constitution of India gives to each individual the basic right to privacy.

Furthermore, sections 69 and 69A provide the government the authority to intercept computer resources and issue blocking orders to network providers in the “interest of India’s sovereignty and integrity.” These categories are too wide and fail to achieve a reasonable balance between free expression and proportional societal regulation. 

In its decision in Shreya Singhal v. Union of India, the Supreme Court declared section 66A unconstitutional and harsh, claiming that the clause was phrased ambiguously and infringed the right to free expression protected by Articles 19 and 21 of the Indian Constitution.

Similarly, under Section 79, network providers risk losing their safe harbor if they fail to undertake due diligence or delete illegal information. Again, the regulations impede a convincing interpretation of such needs and have encouraged unjustified limits on basic rights, as seen by recent social media account suspensions. This essentially contradicts the Supreme Court’s views in Shreya Singhal v. Union of India.

Liability of the intermediary 

Given the importance of social media platforms in modern society, one of the most pressing concerns that must be addressed is intermediaries’ responsibility. While there is a necessity for strong rules and recognizing the existence of certain progressive measures, unlike The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereafter “IT Rules”) that are anti-democratic and unlawful in their entirety. Even the intermediaries like Facebook need to comply and formulate rules for their platform in order to rein in hate speech, fake news, and inappropriate content which are being hosted on their platform.

In July, the Supreme Court emphasized its decision in Ajit Mohan & Ors. V. Legislative Assembly National Capital Territory of Delhi & Ors. that Facebook has “become a venue for disruptive messages, voices, and ideas.” According to the Apex Court, Facebook’s act as a middleman was at the core of the problem: “It is difficult to accept the simplistic approach adopted by Facebook – that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information.” 

An investigative report “The Facebook Files: A Wall Street Journal Investigation” which is based on an examination of internal Facebook papers, concluded that Facebook is aware that its platforms are damaging to its users. The report also analyzed that Facebook fully comprehends that its platforms are replete with flaws that inflict harm on its user in different ways. 

According to one of the documents by the whistleblower, Frances Haugen, it states that anti-muslim and islamophobic content is very common on the platform. The report states that “ “Anti-Muslim narratives targeted pro-Hindu populations with [violent and incendiary] intent… There were a number of dehumanizing posts comparing Muslims to ‘pigs’ and ‘dogs’ and misinformation claiming the Quran calls for men to rape their female family members”.

In addition, the whistleblower filed eight accusations in the U.S. Securities and Exchange Commission alleging that Facebook is willfully hiding information and research regarding its flaws from the public and its investors. 

Facebook needs to regulate its content and follow a censorship plan to get rid of hateful content, fake news, and political propaganda. The charges made by Facebook whistleblowers are quite concerning, and they call for a complete evaluation of the regulatory framework for social media. 

Also, the Indian administration needs to strengthen the Information Technology act and put a tight leash on the intermediaries to protect the rights of the citizens. The Information Technology Act, 2000, envisioned as legislation to control the paradigm change in the IT ecosystem governs practically every aspect of internet activity.  

Nonetheless, the recent evolution of the digital realm has rendered even this regulation unsuitable and incorrect on various grounds and there is a dire need to formulate and amend the Information Technology Act. However, in proactiveness to limit internet corporations’ capabilities, the government must not disregard constitutionally granted fundamental rights. 

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