Introduction
The 21st century is the era of technology; this can be observed in the ever diminishing distinction between technology and reality as almost all of us are living at least half way in the virtual world. Technology has permeated our lives and has a significant effect on our day to day decision making. Social media is one such instance of technology becoming an inseparable part of our daily lives. However, social media technology has time and again come under the radar for this very reason. The ever increasing influence of social media over society, our lives, politics and people is surely an apprehension to democratic societies, and requires scrutiny. Recently, the suspension of erstwhile United States (US) President Donald Trump from Facebook, Twitter, YouTube, and many other platforms has led to accusations of anti-conservative bias among social media platforms. This has also kick-started a discourse on the political reach and influence of social media platforms.
India is a platform society, which according to Van Djik emphasizes “the inextricable relation between online platforms and societal structures. Platforms do not reflect the social: they produce the social structures we live in.”[i] There is a strong possibility of clash of societies and ideologies in such societies.
Social Media: Invading political spaces?
While writing the above sub-title, it is realized that this need not occur as a question since it can almost be a factual statement that reflects the truth of the day. The growing power and influence of social media platforms like Facebook is not invisible to democratic institutions. In the recent case of Ajit Mohan v. Legislative Assembly NCT of Delhi[ii], the Supreme Court of India made important remarks regarding the presence of social media entities in the political sphere. The court noted that “Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation” and that “these platforms have become power centers themselves, having the ability to influence vast sections of opinions. These have had a direct impact on vast areas of subject matter which ultimately affect the governance of States.”
The concerns of the Supreme Court hold a lot of merit and reflect the concerns of democracies not only in India but across the world. There is sufficient literature that points towards the influence of social media on voting turnout, protest, and politicians’ behaviors, which come to similar conclusions that: social media can help mobilize crowds; social media facilitates political protests; social media can propagate extremism and hate crimes; social media is more conducive of false news than true news; and social media helps politicians connect to potential voters, and even affects politicians’ offline behavior. Research has also shown that social media has a great impact on the donations that candidates get for their campaigns, attesting to its political worth.
How does it work?
The advent of social media, in its early phases, brought a wave of optimism especially the way in which it would revolutionize dissemination of information. Social media was different from traditional media; in the way that while the latter existed on behalf of some powerful institution, and was controlled by vested interests who made decisions on what to publish (dominate media), the former signified a pluralist media, accommodating diverse viewpoints, and for the most part being independent of elite control. Social media has a direct connection with the users and creates direct channels of communication. Also, the nature of social media is such that news and events can be generated and their nature can also be altered by the creator of the string of news. This gives wide powers to almost anyone with an internet connection. While superficially social media might resemble a pluralist media, recent developments have shown that this may not necessarily be the case. Social media can also become servant of powerful interests and help spread political propaganda to influence political decision-making. The Pew Research Centre findings in 2019 showed through an international survey that publics in emerging economies definitely are aware of the unique and new chances for political engagement through social media, however, they are equally concerned about the tendencies inherent in social media that may lead to division, even as they offer new chances for political engagement.
According to the 2019 research that spanned across eleven developing countries such as Jordon, Lebanon, Tunisia, Mexico, Philippines, Vietnam, India, etc the perils of social media was not lost on the common publics. While 65% of Indians who were interviewed stated that they were more informed about current and political events, 60% stated that it was easier to manipulate with false information and rumors.[iii] Unlike traditional media, where propaganda and manipulation are much obvious to viewers, social media works much more insidiously. The working of social media is through complex algorithms, use of artificial intelligence and blockchain technology. However, in using the high technology, social media platforms can conceal their manipulation and propagate those using algorithms. These algorithms control our exposure to facts and opinions, and the sources from where we get them. A minor tweaking in these algorithms can rig them to propagate a certain viewpoint or ideology, not to mention fake news or other unlawful content. All this usually happens anonymously and this is the most dangerous part of the social media structure, that it allows anyone to voice their opinions with almost zero accountability.
While answering a starred question in the Rajya Sabha, Minister of Electronics and IT, Ashwini Vaishnaw, referring to a whistleblower report about Facebook, stated that the author of these reports “has attributed amplification of extreme views to algorithmic promotion.” He also stated that there was a negligent attitude of Facebook in deployment of adequate algorithmic measures to curb unwarranted circulation. The algorithmic manipulations through which social media is run can “pervert the way [a] person reaches decisions, forms preferences, or adopts goals,” essentially taking their ability to think independently. The way this works is by narrowing down our information choices, through targeted communications and persuasive opinions placed at the right time. A great example of this was showcased during the 2016 Presidential elections in the US, where Cambridge Analytica, a data aggregator, gained access to data of more than 50 million Facebook users, and used that data for targeted and tailor-made advertisements for Donald Trump’s campaign, who eventually won.
Another important issue is the power of social media platforms to silence opposing political views. The allegations of political bias on social media platforms are not new; the suspension of Donald Trump has just brought the issue to the forefront. By silencing opposing political views, social media platforms can create “echo chambers”, which make sure that only one type of opinion is presented to the users. Diversity of viewpoints and exposure to only one type of opinion, takes away the ability of its users to make informed decisions. This has a tremendous impact on the political leaning of the users and can greatly impact voting outcomes.
What is being done to regulate the political influence of social media?
Globally, there has been a slow response by government agencies in terms of regulations to limit the political influence of social media platforms. The European Union (EU), which has one of the most developed legal systems in the world, also doesn’t have any proposals to set limitations to the extent these platforms may go in using AI, algorithms, and other technologies to influence political opinions for their own political gains. However, on a closer look, there are countries that are trying to address these issues through targeted policies to curb misinformation and media manipulations, especially during elections.
Australia: In February, 2019, the Electoral Commission of Australia issued a notice to Facebook and Twitter to weed out illegal political ads. Further, in Australia political ads require more transparency about the funder and buyer of such ads. Similarly, the Commission also started a “Stop and consider” campaign to prevent citizens from becoming prey to dishonest election campaigns in light of the upcoming elections. A recent law passed by the Australian Govt., which requires platforms such as Google and Facebook to pay media outlets for publishing their content on news feeds, can also be seen as a way to regulate news content that is amplified by the social media platforms. Such an obligation would ensure that these platforms are more aware about the content that they are amplifying.
Belgium: In 2018, the Ministry for the Digital Agenda of Belgium announced measures aimed towards curbing the spread of fake news and misinformation online. One of those measures consisted launching a website to spread awareness about the misinformation, and implementing a novel upvoting and downvoting mechanism inspired by social media platform Reddit.
Canada: In 2019, the Canadian Government kicked-off a comprehensive initiative to curb fake news and misinformation in the upcoming elections. Firstly, a “Critical Election Incident Public Protocol” was created to monitor spread of misinformation and alert relevant agencies and the public about the same. Secondly, a new bill (Bill C-76) was passed to compel social media platforms to show more transparency in their efforts to curb misinformation, and in their advertising policies. Thirdly, $7 million were invested in projects to curb the menace of misinformation during elections. Recently, the Canadian govt. has proposed a bill to regulate online content in the light of Capital Hill Riots in US earlier this year, the legislation seeks to regulate harmful content online by mandating social media platforms to remove “illegal” content or face penalties.
France: France has put out one of the most comprehensive responses to misinformation and media manipulations during elections. Alongside attempts to curb misinformation through transparency obligations, and implementing measures to protect the integrity of ballot, France has formulated a new civil procedure. The new procedure allows political parties, politicians, or even concerned citizens to go to court to prevent spread of “factually incorrect or misleading” information that is “likely to alter the integrity of the upcoming ballot” and are “deliberately, artificially or automatically and massively disseminated by means of an online public communication service”.
The law provides a definition of fake news: “Inexact allegations or imputations, or news that falsely report facts, with the aim of changing the sincerity of a vote.”It seeks to impose strict obligations on media during and before elections. The law also permits authorities to take down misinformation attempts, as well as even restrict websites that spread it, and require more diligence in sponsored content.
The law works in a three-fold manner. First, it authorizes a judge to act “proportionally” to curb spread of fake news during elections and three months before it. The judge is empowered to take action on requests files by political party, public agencies, or even citizens. Second, social media platforms such as Facebook, YouTube, and Twitter are required to produce information about the sale of sponsored content or advertisements. Third, the law confers upon the Higher Audiovisual Council (CSA) more powers to ensure abidance of law by media platforms. These powers include the power to unilaterally revoke broadcasting license of entities that operate “under the control or influence of a foreign state” and “disseminate misinformation.”
Conclusion: A way forward
The response of the abovementioned countries seeks to curb the political influence of social media platforms in the garb of curbing misinformation and manipulations. However, these do not address the more pernicious phenomenon of algorithmic manipulation, discussed above. There is a need to prevent social media platforms from influence users’ decision making especially with regards to their voting choices as it can seriously harm our democratic societies. One issue regarding algorithms can be addressed through a better data protection framework. Since algorithms work on users’ data, which can be easily procured and misused, as was in the case of Cambridge Analytica, a better data protection framework can prevent such misuse. However, Data protection framework in India currently fails to address these issues.
A comprehensive framework to deal with the problem of algorithmic manipulation would require an integrated understanding of unfair practices, data protection, and privacy. Moreover, transparency obligations need to be put on companies employing algorithms to keep the users better informed about the workings of such systems. For instance, article 14 of the General Data Protection Regulation (GDPR) establish a right of the data subjects to be informed about the existence and working of an automated decision-making system. Further, platforms that collect user data, such as Facebook, should have limitations on the extent to which the data can be used by the algorithm.
The issue whether social media platforms should have the power to silence opposing political opinions also needs to be addressed. Since social media platforms are owned by private companies, they cannot be subjected to freedom of speech guaranteed as an inalienable right in most jurisdictions. In this regard, section 230 of the Communications Decency Act of the US can be referred to. This legislation gives social media platforms protection from liability for user-generated content disseminated on their platform, and also provides social media platforms the power to remove posts that are obscene or violate the platforms’ own standard, as long as the decision has been made in “good faith.” However, the phrase good faith can be construed in any way by these platforms. For instance, in second quarter of 2020, Facebook acknowledged that they had removed 22.5 million pieces of “hate speech” content from their platform;[iv] however the definition of hate speech is unclear and can allow these platforms to remove opposing views in the garb of regulating hate speech.
To combat this, an amendment to this law, proposed by Donald Trump sought to remove this protection accorded to social media platforms if they exercise a substantial degree of control over the content that is allowed to be disseminated on its platform. This step was aimed to make social media platforms more diverse to offer variety of opinions to users so they can make informed decisions. However, the amendment has been revoked, continuing the legacy of the legislation.
In India also, debates on the coverage of social media companies, their political and social influence is under discussion at the parliamentary level. As a guided response to the fluid and dynamic nature of social media, the government of India has drafted the ‘guidelines for use of Social media by the Government (Department of Electronics and Information Technology Ministry of Communications & Information Technology Government of India)
The framework comprises of the following 6 elements:
Objective: Why an agency needs to use social media?
Platform: Which platform/s to use for interaction?
Governance: What are rules of engagement?
Communication Strategy: How to interact?
Pilot: How to create and sustain a community?
Institutionalization: How to embed social media in organization structure?
Some of key caveats that the guidelines highlight and must be kept in mind include:
All accounts must be created and operated in official capacity only.
As social media demands 24*7 interactions, some responsiveness criteria may be defined and a dedicated team may be put in place to monitor and respond.
There should be congruence between responses on social media and traditional media.
Relevant provisions of IT Act 2000 and RTI Act must be adhered to.
The future of social media is a riddle that only time can solve and therefore needs careful analysis and a close watch.
[i] Van Djik et al., The Platform Society. Public Values in a Connective World, Oxford University Press (2018)
[ii] 2021 SCC OnLine SC 456.
[iii] Aaron Smith et al., Publics in Emerging Economies Worry Social Media Sow Division, Even as They Offer New Chances for Political Engagement, Pew Research Centre (May 13, 2019), https://www.pewresearch.org/internet/2019/05/13/publics-in-emerging-economies-worry-social-media-sow-division-even-as-they-offer-new-chances-for-political-engagement/
[iv] Id, Para 154.
This article has been authored by Dr. Abha Yadav, Associate Professor of Law & Regulatory studies, Indian Institute of Corporate Affairs. She was assisted by Mr. Vivek Kumar, student of RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.