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Elon Musk’s Twitter: How his free speech argument could play out in India

Elon Musk's idea of defeating bots and providing every human-operated Twitter account with a verification badge may also prove to be an onerous task -- fake followers and spam is a challenge that the platform has struggled with for years.

Written by Soumyarendra Barik , Aashish Aryan , Edited by Explained Desk | New Delhi |
Updated: April 28, 2022 2:51:46 pm
Elon Musk's Twitter: How his free speech argument could play out in IndiaTesla CEO Elon Musk speaks during a conversation in Los Angeles, California, US, June 13, 2019. (Reuters Photo)

After nearly a month of ups and downs, including a hostile takeover offer, Elon Musk has finally become the new owner of Twitter. Musk calls himself a “free speech absolutist”, and has declared that “free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.”

It’s a high ideal that has been invoked repeatedly over the years by executives of the Internet’s biggest companies.

Back in January 2011, Twitter co-founder Biz Stone wrote in a blog post titled ‘The tweets must flow’ that freedom of expression was “essential”, and while “we don’t always agree with the things people choose to tweet, but we keep the information flowing irrespective of any view we may have about the content.”

That same year, then Twitter CEO Dick Costolo famously declared in an interview, “We are the free-speech wing of the free-speech party.”

And yet, on Tuesday, tech commentators around the world were recalling the many clashes over the years between the free speech principles professed by Silicon Valley leaders and the views of national governments around the world who disagreed with their definition when it came to content on social media.

What are India’s “reasonable restrictions” on free speech?

Article 19(1)(a) of the Constitution gives all citizens the right to freedom of speech and expression. By The Constitution (First Amendment) Act, 1951, however, “reasonable restrictions” were placed on the fundamental right to free speech under certain conditions.

Thus, the government can impose curbs “in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. The principle of reasonable restrictions has been upheld by the Supreme Court more than once.

Do any restrictions apply specifically to content on social media?

Over the past couple of years, the Ministry of Electronics and Information Technology (MeitY) has repeatedly underlined that companies such as Twitter must bear more responsibility for the content that is hosted on their platforms.

Under Section 69(A) of The Information Technology Act, 2000 (“Power to issue directions for blocking for public access of any information through any computer resource”), MeitY can ask any social media intermediary to take down content that violates the law and Constitution of India.

This section gives the ministry the power to issue emergency orders, which have to be followed as and when they are issued, and which can be challenged in a court of law only after the intermediary has done as requested by the ministry. Non-compliance can result in a jail term.

Twitter has already received several warnings and precautionary notices from the ministry for not taking down content that it had been asked to remove under Section 69(A) of the IT Act.

Hypothetically, should Twitter choose to take a stand against the government’s blocking orders, it could potentially land its India-based chief compliance officer in trouble. Last year, Twitter’s then India head Manish Maheshwari was summoned by the UP Police after a video spreading misinformation went viral on the platform.

Under what circumstances were the takedown orders issued?

On January 30, 2021, four days after the violence at Red Fort, multiple tweets with the hashtag “ModiPlanningFarmerGenocide” were posted by several Twitter accounts supporting the farmers’ agitation, activists, and some politicians. The ministry had almost immediately issued emergency orders asking Twitter to take down the hashtag and block access to at least 250 offending accounts.
While Twitter did comply, less than 24 hours later it restored access to some of these accounts as it believed that the ministry’s directions infringed on free speech.

Three days later, on February 4, the IT ministry sent Twitter a list of 1,178 accounts, asking the platform to either suspend their access in India or block them as these had been “flagged by security agencies as accounts of Khalistan sympathisers or backed by Pakistan”.

Twitter blocked some of these accounts but refused to block others, claiming again that the ministry’s orders were not in line with free speech laws of the country.

The IT ministry sent show cause notices to Twitter asking why legal action should not be taken against it for not following the rules and laws of the country.

On February 25, the government notified The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 mandating “due diligence” by intermediaries with regard to a wide range of content, and requiring “significant social media intermediaries” to appoint a resident chief compliance officer who would be responsible for complying with the law.

In June, with Twitter dragging its feet on compliance, the government warned that it could lose its ‘intermediary’ status for not following the laws of the land — which would mean that it could be held accountable for third-party speech posted on its platform, and open the company up for more litigation.

In January 2022, the Andhra Pradesh High Court warned Twitter of stern action for failing to follow the court’s orders to take down abusive and defamatory content posted against the judiciary and some judges. The HC had asked CBI to investigate the content in October 2020, after which the agency had given a list of URLs to Twitter, requesting that they be removed.

A sign outside the Twitter headquarters in San Francisco, Monday, April 25, 2022. (AP Photo: Jed Jacobsohn)

What are the implications for Musk’s maximalist ideas on free speech?

According to most experts, that’s easier said than done. Jurisdictions around the world are looking to rein in big tech, and the European Union has recently agreed on a sweeping new law that seeks to enforce greater accountability on the part of companies to act against socially harmful content. How exactly the anticipated frictions will play out remains to be seen.

In a live broadcast from a TED conference recently, Musk said that Twitter’s algorithm should be based on an open-source model, so that users of the platform are able to see the code by which Twitter determines which tweets are promoted and which are hidden on users’ timelines. Open-sourcing, he said, would be preferable to “having tweets sort of being mysteriously promoted and demoted with no insight into what’s going on”.

Making such a change in Twitter’s software would lay bare the role that computer programmes play in policing content posted on the platform. Conservatives in the West have repeatedly complained that Twitter’s algorithm is biased against them.

Musk’s idea of defeating bots and providing every human-operated Twitter account with a verification badge may also prove to be an onerous task — fake followers and spam is a challenge that the platform has struggled with for years. The proof of identity that would be required to follow through on his proposal to verify all users can be copied or faked, an expert said. And defeating bots could consume a lot of resources at a time when Twitter is struggling to grow its revenues.

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