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‘Donald Trump’s order may lead to stricter social media regulation in India’

Salman Waris, managing partner, TechLegis Advocates and Solicitors

Following the executive order issued by US President Donald Trump, which sets out to weaken the law protecting social media companies such as Twitter and Facebook in the US, Salman Waris, managing partner, TechLegis Advocates and Solicitors, shares his views on how it could affect India, which is yet to finalize the guidelines to govern social media platforms. Edited excerpts from the interview:

Will the Trump executive order have repercussions for India?

Yes, it could. While practically, Trump’s order may not be very effective in the US, and is most likely to be challenged in courts in countries where institutions are not very strong and governments are already pushing for changes on how social media is being regulated these orders could have significant impact. In the Indian context, Trump’s actions might lead to the IT Ministry claiming it was justified in its proposed amendments to the Information Technology (Intermediaries Guidelines (Amendment) Rules), 2018, in order to prevent the spread of fake news, and may soon proceed with the proposal.

So, will the government expedite formulating the long-pending guidelines for social media?

It is very much possible. The proposed amendments have been long pending and the public consultation process has already been completed. They were expected to be passed in the first quarter of 2020, hence, the IT ministry may use this development to justify its stand and go ahead with it. In the past, when the US, the UK and Australia urged Facebook not to implement end-to-end encryption on its messaging platforms, the Indian government used it to justify pushing for traceability on WhatsApp.

Which countries have the best regulations for social media?

Globally, the best approach with regard to social media regulation is considered to be one that is a mix of both industry self-regulation and basic state legislation. Germany, and some of the other European countries, have done this and it’s considered the right approach.

But the government and the courts do ask social media companies to take down posts, isn’t it?

The government and courts on a regular basis issue takedown directions for social media posts. Generally, these takedown or blocking orders, are issued either by local or high courts, asking internet services providers to block access to a particular social media page for violating Indian laws and regulations. Sometimes, the government through the ministry of electronics and information technology issues directions to CERT-In, that is, the Computer Emergency Response Team to block access to a particular website or page, which in turn issues directions to internet service providers.

Should technology platforms, such as Twitter, Facebook and Google, be treated on a par with other media organizations?

Yes. There has been a movement towards treating OTT operators and social media giants to be treated on a par with other media organizations, which in the present context, is justified and correct to an extent. In the post-modern world, with features such as geo-location, 24X7 personalised access, overlap with various aspects of traditional media and diversification of social media companies into other realms of daily life, including commerce and business, social media has more influence over lives than traditional media.

Should they follow the same laws that are followed by traditional media?

Obligating social media to comply with the laws followed by traditional media may not be the correct approach due to the inherent nature of social media, its influence and multijurisdictional/ global nature and this approach may not serve the purpose of regulation.

Following the executive order issued by US President Donald Trump, which sets out to weaken the law protecting social media companies such as Twitter and Facebook in the US, Salman Waris, managing partner, TechLegis Advocates and Solicitors, shares his views on how it could affect India, which is yet to finalize the guidelines to govern social media platforms. Edited excerpts from the interview:

Will the Trump executive order have repercussions for India?

Yes, it could. While practically, Trump’s order may not be very effective in the US, and is most likely to be challenged in courts in countries where institutions are not very strong and governments are already pushing for changes on how social media is being regulated these orders could have significant impact. In the Indian context, Trump’s actions might lead to the IT Ministry claiming it was justified in its proposed amendments to the Information Technology (Intermediaries Guidelines (Amendment) Rules), 2018, in order to prevent the spread of fake news, and may soon proceed with the proposal.

So, will the government expedite formulating the long-pending guidelines for social media?

It is very much possible. The proposed amendments have been long pending and the public consultation process has already been completed. They were expected to be passed in the first quarter of 2020, hence, the IT ministry may use this development to justify its stand and go ahead with it. In the past, when the US, the UK and Australia urged Facebook not to implement end-to-end encryption on its messaging platforms, the Indian government used it to justify pushing for traceability on WhatsApp.

Which countries have the best regulations for social media?

Globally, the best approach with regard to social media regulation is considered to be one that is a mix of both industry self-regulation and basic state legislation. Germany, and some of the other European countries, have done this and it’s considered the right approach.

But the government and the courts do ask social media companies to take down posts, isn’t it?

The government and courts on a regular basis issue takedown directions for social media posts. Generally, these takedown or blocking orders, are issued either by local or high courts, asking internet services providers to block access to a particular social media page for violating Indian laws and regulations. Sometimes, the government through the ministry of electronics and information technology issues directions to CERT-In, that is, the Computer Emergency Response Team to block access to a particular website or page, which in turn issues directions to internet service providers.

Should technology platforms, such as Twitter, Facebook and Google, be treated on a par with other media organizations?

Yes. There has been a movement towards treating OTT operators and social media giants to be treated on a par with other media organizations, which in the present context, is justified and correct to an extent. In the post-modern world, with features such as geo-location, 24X7 personalised access, overlap with various aspects of traditional media and diversification of social media companies into other realms of daily life, including commerce and business, social media has more influence over lives than traditional media.

Should they follow the same laws that are followed by traditional media?

Obligating social media to comply with the laws followed by traditional media may not be the correct approach due to the inherent nature of social media, its influence and multijurisdictional/ global nature and this approach may not serve the purpose of regulation.

source: livemint