Facebook can’t take a different stand in India, says top court

The Supreme Court on Thursday made a strong pitch to make Facebook accountable for its social media content, citing the global trend on how Facebook had a “disruptive” potential that could threaten the diversity existing within India

The Supreme Court on Thursday made a strong pitch to make Facebook accountable for its social media content, citing the global trend on how Facebook had a “disruptive” potential that could threaten the diversity existing within India.

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Facebook was in court to challenge the summons issued by the Delhi assembly’s peace and harmony committee over some alleged hate speeches circulated on the platform during the riots that rocked north-east Delhi in February last year.

While reaffirming the powers of the committee to summon Facebook executives, the bench headed by Justice Sanjay Kishan Kaul rejected the “simplistic” argument by the social media intermediary that it cannot be held liable because it neither initiates transmission of message nor controls it.

It said that Facebook cannot be permitted to take contradictory stands in different jurisdictions depending upon its suitability and convenience. It underscored that in the United States of America, Facebook projected itself in the category of a publisher giving them protection under the ambit of the First Amendment and the control to justify moderation and removal of content.

“Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand,” said the bench.

Disapproving of this “hands-off approach”, the bench said, “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… Facebook today has influence over one-third population of this planet. Entities like Facebook have to remain accountable to those who entrust them with such power.”

The judges noted that India is more diverse than the whole of Europe in terms of cultures, food, clothing, language, religion, and traditions. “We (India) have a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.”

The court cited a November 2018 international news report where Facebook had admitted to its role in failing to prevent a series of misinformation and posts that led to division and incitement of violence during the ethnic cleansing in Myanmar. The platform had even apologised for failing to respond to “evident signs of abuse of the platform” in Sri Lanka leading to widespread violence in 2018.

“While Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and a means to escape state censorship, we cannot lose sight of the fact that it has simultaneously become a platform for disruptive messages, voices, and ideologies,” said the bench, also comprising Justices Dinesh Maheshwari and Hrishikesh Roy.

In India, Facebook has about 270 million registered users. “The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinions,” the bench observed.

Less informed individuals using the platform tend to treat information received from populist leaders as “gospel truth” without verifying the same. Noting with concern how extremist views are being peddled into the mainstream to spread misinformation on social media platforms, the bench said, “The effect on a stable society can be cataclysmic with citizens being ‘polarised and paralysed’ by such ‘debates’, dividing the society vertically.”

Even election and voting processes, considered the very foundation of a democratic government, are being threatened by social media manipulation, the bench observed, citing recent examples of how these platforms were blamed for “obfuscation of facts” and “spreading of outright lies in public sphere” during the 2016 US Presidential elections and Brexit.

Countries like Australia, US, United Kingdom are contemplating laws to regulate social media platforms while the European Union has formulated legislative proposals, such as the Digital Services Act and Digital Markets Act, to set down rules for platforms to follow, the judgment said.

“The role played by Facebook is thus more active and not as innocuous as is often presented when dealing with third party content,” said the bench, observing that the ability to decide “which content to amplify, suggest, and elevate” lies with these platforms.

Facebook admitted in court that it controls the content on its platform as it removed 22.5 million pieces of hate speech content in the second quarter of 2020.

“This unprecedented degree of influence necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values,” the bench said.