Who’s Afraid of Social Media?

Can and should Social Media be regulated?

Should a state regulate how its citizens use social media (SM)? If so, what are the legal and technical options available within a democratic framework?

These questions keep coming up with increasing frequency in Sri Lanka today. In late July 2017, addressing the 28th Law Asia conference in Colombo, Prime Minister Ranil Wickremesinghe asked whether it was possible to regulate social media such as Facebook.

“Modern technology society has changed the issues the legal sector in particular is facing. For example, if you regulate Facebook and the Internet, is it a violation of fundamental rights?” he was quoted in the media. But, it is hard to find open-minded public debate on this topic. Instead, we mostly hear strident voices of single-issue activists (such as child rights groups) or self-appointed moral guardians calling for regulations to curb what they consider as SM ‘excesses’ and ‘abuses’.

Such advocacy sans debate can push governments into adopting overbroad laws or regulations that undermine freedom of expression. Moral panic is never a good basis for policy-making or legislation.

To be sure, there are some genuine concerns documented by researchers and activists. These include hate speech, incitement to violence and misogynist conduct online – and most are peddled by persons taking cover under pseudonyms or fake accounts. Then, there is the rising problem of fake news that goes ‘viral’ through uncritical, mass sharing on SM platforms.

These issues need a societal response, but how can governments avoid throwing the SM baby out with the bathwater? And as citizens, how can we balance the freedom of expression guaranteed by the Constitution and our responsibilities as individuals exercising that right?

A BIG BASKET
Social media is a basket term. It captures many web-based or mobile platforms that enable two common actions: conversations between people and the collaborations that often result. Both private and public space co-exist on SM, which makes it hard to define SM as mass media. Hundreds of SM tools and platforms exist with their own characteristics and users. Categories include social networking sites (Facebook is the best known), blogging platforms (like Blogger, WordPress and Medium), micro-blogging facilities (Twitter), photo sharing services (Instagram) and video sharing services (YouTube, Vimeo). Then, there are chat apps
like WhatsApp and Viber.

Facebook is the dominant SM platform in Sri Lanka, with over 4 million accounts by end-2016 (when there were 6.25 million Internet users, or around 30% of the population). Twitter, Instagram and YouTube are also popular, as is WhatsApp.

Also, SM’s influence reaches a much larger section of society than those directly accessing it. This is due to ‘information multipliers’ – such as teachers, journalists and activists – with significant audiences of their own. It is also important to separate SM from political and gossip websites that draw many readers. Although having a comment facility, these do not fall into the SM category.

SM is an inherently noisy, argumentative and irreverent environment – there is no single narrative, and certainly no sacred cows! Everybody and everything gets questioned, challenged and even ridiculed. But, most discussions are of a fleeting nature. In Sri Lanka, where over 80% of web users browse through mobile devices, SM is consumed literally on the run.

Both private and public space co-exist on social media , which makes it hard to define social media as mass media

CHALLENGES
As SM use spreads and deepens, the boundaries of free speech are being redefined, as are those of criminal activity. Both democracy and assorted extremists are now using SM platforms. The challenge is to study and understand the dynamics before responding hastily.

This was stressed recently by Prof Ang Peng Hwa, a well-known communications scholar who teaches at the Wee Kim Wee School of Communication and Information at Nanyang Technological University, Singapore.

His advice to governments: “Don’t regulate just because there is a major outcry. Social media is new, and we are still learning to cope with the impacts. Be rational. Observe. Take a step back and recalibrate. It’s difficult to just sit back and watch, but it’s the proper thing to do. Stepping in too soon can be a bad thing.”

Speaking at a regional conference in June 2017, he also said: “Social media users must know why the government is disallowing something. If the government can show that harm – not politics – is the reason for regulation, people are more likely to accept it. The government and private sector must create an atmosphere of trust.”

For a start, there is no consensus on what content shared on SM poses a real threat to harmony or social cohesion. Surely, criticising government actions/inaction or the ruthless lampooning of politicians are part of a democratic process?

In the Lankan context, SM represents arguably the final frontier for free speech. In recent years, self-censorship and political capture of the media have vastly reduced the space for real political discussion in mainstream media. Today, what passes for political commentary is little more than political gossip. In contrast, political bloggers and (mostly anonymous) web meme creators offer some highly perceptive analyses. Some may be idealistic and a few rather flippant, but SM is where much fresh thinking is found these days.

Of course, the cacophonous platforms come with an overdose of shrill negativity and occasional extremism. Yet, discerning users can – and do – find space for meaningful engagement.

Professional-turned-politician Dr Harsha de Silva, Sri Lanka’s deputy minister of Policy Planning and Economic Development is one of them. Speaking at a recent Colombo event on using social media for social development, he said: “Blocking or otherwise controlling social media is not the right answer. We (politicians) should be able to accept criticism coming through it, and correct our ways. As a government, we must encourage responsible use of social media in the public’s interest.”

TREAD WITH CAUTION!
In any case, individual governments trying to regulate global SM platforms is fraught with legal complications.

As Toby Mendel, a Canadian lawyer specialising in media rights and international human rights, explained in a recent interview: “Entities that are registered and operated within a country can be regulated by the laws of that country. But, not those outside its jurisdiction. For example, Sri Lanka cannot regulate Facebook. It can block Facebook (wholesale) as China has done. That extreme measure is always available, but it can’t regulate content on Facebook.”

This does not mean that global SM operators are above the law. As Mendel says, they are accountable to the laws in countries where they are legally established – many widely used platforms are registered in the US. Each one also has its user terms, as well as administrations that provide oversight, watching out for excesses or abuses.

When governments seek to regulate what individuals say on SM platforms, basic freedoms are often trampled. Overbroad laws can easily be used against political opponents or public intellectuals asking inconvenient questions.

In the Lankan context, social media represents arguably the final frontier for free speech

India went down this treacherous path for a few years. In a landmark ruling in March 2015, the Supreme Court of India struck down a “draconian” law that allowed police to arrest people for comments on social media networks and other websites. The court ruled that Section 66A of the Information Technology Act was unconstitutional in its entirety, and the definition of offences under the provision was “open-ended and undefined”.

That provision carried a punishment of up to three years in jail. Since its adoption in 2008, several people had been arrested simply for their comments on Facebook or Twitter. The law was challenged in a public interest litigation case by a law student after two young women were arrested in November 2012 in Mumbai for comments on Facebook following the death of a politician.

The judgement said: “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such a right and the reasonable restrictions that may be imposed on such a right.”

The court said that three concepts were fundamental in understanding the liberty of thought and expression: discussion, advocacy, and incitement. Discussion, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech, and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the grounds of causing public disorder.

The judgement added: “The information disseminated over the Internet need not be information that ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Furthermore, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all.”

Lawrence Liang, a legal researcher based in Bangalore, points out that this was the first time in decades that the Indian Supreme Court had struck down a legal provision for violating freedom of speech, and “in doing so, it simultaneously builds upon a rich body of free speech cases in India and paves the way for a jurisprudence of free speech in the 21st century, the era of the Internet and social media”.