The banning of former U.S. President Trump’s Twitter handle and the inconsistency of social media self-regulation have again brought up pertinent issues regarding free speech, censorship, and the power of tech companies over public discourse. Constitutional principles may hold the key in navigating these contentious issues.
In January 2021, after a violent insurrection attempt at the U.S. Capitol, former American President Donald Trump was banned from all major social media platforms for his role in inciting the crowd to riot. The ban, quite predictably, set off a political slugfest over its justifiability, necessity, and over the power that private social media companies have come to wield in modern times, in the U.S. and across the world. This incident also raised important questions as to the standards that social media companies use to regulate content, how these standards are applied, and whether these standards are adequate to govern digital expression in the first place. This article, however, does not attempt to answer all of these questions. Instead, it approaches the issue of content regulation on social media from an Indian constitutional rights perspective by relying on the jurisprudence of Article 12 of the Constitution of India and lays out the case for regulating social media as public utilities to protect free expression in our digital society.
Social Media as “Centres of Power” and Why Self-Regulation Doesn’t Work
Justice K.K. Mathew in his remarkable concurring opinion in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi laid down the principles that would serve as the foundations of the modern ‘public function’test in Indian jurisprudence. In his opinion, Justice Mathew argued that citizens could claim fundamental/constitutional rights against private entities that possessed and exercised the power to intrude upon these rights on a mass scale. He called these entities “centres of power” and reasoned that courts ought to guard against all forms of untrammelled power, be it public or private. The first issue, then, that merits consideration is – are social media “centres of power”?
In 2020, according to estimates, the global social media penetration rate stood at 49%, with experts suggesting that the major social media companies will see approximately 3.4 billion active users per month, with around 450 million users from India alone and this is just the beginning. As more and more people in the developing world shift to the online platform, these figures will continue to grow. This growing interconnectedness does have its own unique promise. Social media has proven to be a new frontier for social justice movements, fostering democratic solidarity that frequently cuts across national borders. However, these trends have originated a unique set of challenges concerning their impact on democratic governance, political culture, and, perhaps most importantly, on free speech.
Political Expression and Social Media: A Tale of Arbitrariness and Duality
Almost all major social media platforms self-regulate the content shared by their users. Facebook, Twitter, and Instagram, to name a few, purport to adhere to ‘community standards and other guidelines’ when exercising their regulatory powers. However, a closer scrutiny of these guidelines demonstrates their ambiguity, arbitrariness, inadequacy, and glaring inconsistencies in the application, especially when it comes to regulating political expression. As Professor Joseph Thai notes in an article analysing Facebook’s policies on regulating speech, “…Facebook’s professed “commitment to expression” – touted as “paramount” at the outset of its Community Standards – often conflicts with a speech code that in critical parts is significantly less clear, less coherent, and more restrictive than the First Amendment.”
The ambiguity of these community guidelines and the lack of accessible appellate mechanisms work in tandem to vest enormous discretion and power in the hands of tech executives. Faceless ‘moderators’ get to decide what is/is not permissible in the digital public square, with ample room for bias and arbitrariness. In the domain of political speech, in particular, this issue has been flagged by all sides of the political spectrum in the U.S., including some progressive voices, and in India. For all their talk of responsible self-regulation, there are far too many issues and legitimate grievances to leave speech regulation in the hands of unaccountable executives and moderators.
To return, then, to the primary question. Are social media ‘centres of power’? A holistic perspective of the market power of these companies and the enormous authority they exercise over controlling public discourse would lead one to conclude in the affirmative. Social media do possess the right to intrude upon citizens’ constitutionally guaranteed rights in ways that are arbitrary, inconsistent, and unjustifiable.
Regulation: A Light at the End of the Tunnel?
Having established that social media indeed are ‘centres of power’, the next logical question that one must consider is – how do we regulate this power so as to protect free public discourse?
In his dissenting opinion in Zee Telefilms Ltd. v. Union of India, Justice S.B. Sinha argued for a purposive interpretation of Article 12, reasoning that it must be construed as an enabling provision that allows constitutional courts to check the arbitrary exercise of power ‘wherever it is found,’ thereby formally bringing the ‘public function’ test into Indian jurisprudence. Of course, he was in the minority in that case and it is unlikely that Indian constitutional courts will revisit the ‘public function’ argument vis-à-vis social media anytime soon. However, that does not preclude Parliament from legislating new standards and rules that apply the constitutional right to free speech, enshrined under Article 19(1)(a), to social media, considering that a cogent and comprehensive argument for the constitutionality and desirability of such a move already exists. This would force social media companies to adhere to the sophisticated free speech jurisprudence that has developed over decades of precedent, instead of ambiguous and inconsistently applied self-regulatory rules. While these companies would retain the right to judge the permissibility of expression on their platforms, they will not retain the final word as citizens would be empowered to approach public authorities or constitutional courts against arbitrary censorship. Prohibited content, such as defamatory speech, obscenity, etc., would remain as limitations on the right to free expression, only this time they would be grounded in the comprehensive jurisprudence on Article 19(2) and be open to judicial review.
As social media continue to grow, how we – as citizens of a democratic society – approach the challenges surrounding their regulation will be one of the defining issues of this decade. Arbitrary power, be it governmental or private, is a threat to freedom and democracy. How the Indian Government and Parliament, and governments and legislatures elsewhere, tackle these issues will be interesting to watch.
 Lauren Leatherby and others, ‘How a Presidential Rally Turned Into a Capitol Rampage’ The New York Times (Washington, DC, 12 January 2021) <www.nytimes.com/interactive/2021/01/12/us/capitol-mob-timeline.html>.
 Hannah Denham, ‘These are the platforms that have banned Trump and his allies’ The Washington Post (14 January 2021) <www.washingtonpost.com/technology/2021/01/11/trump-banned-social-media/>.
 For a general discussion on the ‘public function’ test, in the context of sports governance in India, see Aradhya Sethia, ‘The BCCI Case on “Public Function” and its Implications on Sports Governance’ (I-CONnect, 21 March 2015) <http://www.iconnectblog.com/2015/03/bcci-case-on-public-function/>.
 Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 (Supreme Court of India) (Mathew J).
 Ibid .
 ‘Social media – Statistics & Facts’ (statista, 25 February 2021) <www.statista.com/topics/1164/social-networks/>.
 Kalhan Rosenblatt, ‘A summer of digital protest: How 2020 became the summer of activism both online and offline’ (NBC News, 26 September 2020) <www.nbcnews.com/news/us-news/summer-digital-protest-how-2020-became-summer-activism-both-online-n1241001>; Jaspreet Bindra, ‘The power of social media and its implications for democracy’ (Livemint, 13 November 2020) <https://www.livemint.com/opinion/columns/the-power-of-social-media-and-its-implications-for-democracy-11605193560100.html>.
 For an insightful look into the problems associated with these ‘community standards’, in the context of Facebook, see Peter Suciu, ‘Delving Deeper Into Facebook’s Murky Community Standards’ (Forbes, 8 June 2020) <www.forbes.com/sites/petersuciu/2020/06/08/delving-deeper-into-facebooks-murky-community-standards/?sh=3bdd41221314>.
 Heidi Tworek, ‘The Dangerous Inconsistencies of Digital Platform Policies’ (Centre for International Governance Innovation, 13 January 2021) <www.cigionline.org/articles/dangerous-inconsistencies-digital-platform-policies/>.
 Joseph T Thai, ‘Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation’ (2020) 69(5) American University Law Review 1641.
 For example, see, Jeff Horwitz, ‘Facebook blocks, then restores content calling on PM Modi to resign’ Mint (29 April 2021) <www.livemint.com/news/india/facebook-blocks-then-restores-content-calling-on-pm-modi-to-resign-11619677558363.html>.
 Dan Tynan, ‘Facebook accused of censorship after hundreds of US political pages purged’ The Guardian (17 October 2018) <www.theguardian.com/technology/2018/oct/16/facebook-political-activism-pages-inauthentic-behavior-censorship>.
 Sanjana Varghese, ‘Twitter has purged left-wing accounts with no explanation’ (Wired, 10 October 2018) <www.wired.co.uk/article/twitter-political-account-ban-us-mid-term-elections>.
 ‘IT minister Ravi Shankar Prasad accuses Facebook of bias amid row over content’ (Reuters, 1 September 2020) <www.reuters.com/article/facebook-india-idINKBN25S5B9>.
 For a holistic overview of how powerful tech companies (and tech executives) are today, see Shira Ovide, ‘Why Is Big Tech Under Assault? Power.’ The New York Times (21 April 2021) <www.nytimes.com/2021/04/21/technology/big-tech-power.html>.
 Zee Telefilms Ltd v Union of India (2005) 4 SCC 649.
 Ibid  (Sinha J).
 Ibid - (Sinha J).
 The proposition that social media can be regulated so as to subject it to higher regulatory standards without actually nationalising it is nothing new. For a short and insightful comparative analysis of how this has been approached by various governments, see ‘Social media: How do other governments regulate it?’ (BBC, 12 February 2020) <www.bbc.com/news/technology-47135058>.
Shreyas Sinha is a 2nd year law student at National Law School of India University, Bangalore.
Image Credits: Rob Zs