Who gets to decide what is legitimate free speech — Big Government or Big Tech?

While American lawmakers in Washington DC were preparing for a fresh round of tongue-lashings for the social media giants on Thursday, their counterparts in New Delhi were not wasting any time. The Indian government announced a sweeping array of rules reining-in social media. Specifically, social media platforms are required to become “more responsible and more accountable” for the content they carry. There is now a list of stuff deemed offensive.

In case you are unsure of whether your last hilarious post on that family WhatsApp group met the criteria, you ought to look it up; the list is quite long. And be forewarned that even if your post is not outright fake news, pornography or celebrates Greta Thunberg, you may be kicked off the platform if your post threatens “the unity, integrity, defence, security or Sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any foreign States”.

In other words, the government is giving itself plenty of room to cut Big Tech down to size. The timing of the announcement is, indeed, intriguing. You will recall, of course, the Indian government’s recent scuffle with Twitter. The government had ordered some accounts and tweets in support of the farmer protests to be blocked. Twitter initially refused, saying that it wouldn’t comply with orders inconsistent with Indian law and eventually relented. The beauty of the new regulations is that, in principle, it could make such a blocking order a legal demand — a far more graceful way of controlling pesky tweets.

To be fair, Big Tech needs reining in for many reasons and India is by no means alone in taking a big swing at Big Tech. The recent showdown with Twitter may have only accelerated getting to that inevitable reckoning. India joins other governments around the world that have found a common adversary: Companies with hundreds of millions — and even billions — in their thrall and the power to control the three most critical levers of modern times, data, attention and the popular narrative.

Big Tech has seen the writing on the wall. Motivated by the harms done by the “infodemic” of COVID untruths, misinformation during elections and the fallout from the siege of the US Capitol on January 6, the major platforms have tightened their rules. Their message: Even US presidents can be de-platformed for bad behaviour: Exhibit A: Donald Trump, banished from Twitter and Facebook. The social media companies would argue that they are self-regulating. The problem is that their actions are ad hoc, inconsistent and reactive — and seem far too much like they are lining up the sandbags before the antitrust barbarians arrive at their gates.

Regardless of whether India’s actions are motivated by its recent frustrations with Twitter or part of a wider global trend, we must ask a fundamental question: Who gets to decide what is legitimate free speech — Big Government or Big Tech?

One argument for government intervention rests on the presumption that it is never in the commercial interest of Big Tech to remove offensive speech as this content goes viral more readily, bringing in more eyeballs, more data and more advertising revenue. To counter this argument, Big Tech proponents would contend that the companies are getting smarter about the risks of allowing such content on their systems and will inevitably find it in their self-interest to pre-emptively kill it.

A second argument in favour of government would be as follows: States are the guardians of the public interest. In democratic societies, governments are elected to represent the will of the people. So if there is a hard choice to be made about curtailing speech or permitting it, it seems only natural to turn to the public guardian. The counter to this theory would be that, in practice, even democratically elected governments are far from perfect; in fact according to The Economist Intelligence Unit’s Democracy Index, both India (ranked 53rd ) and the US (ranked 25th) are “flawed democracies”. An implication of this is that we might question how reliable a guardian a government can be under such circumstances. To make matters worse, a government’s agenda is set by prominent personalities, many with large social media followings — so they have too much power to create their own viral narratives while shutting down competing ones.

In parallel, the argument for Big Tech to be the upholder of the public interest could rest on the theory that well-functioning markets are superior to flawed democracies in optimising social welfare. In such market settings, there is “voting” with one’s wallet and one’s attention. The counter-argument to this view would be that the tech industry is itself deeply flawed: There is a lack of sufficient choice of platforms; there are asymmetries in power between the companies and users and Big Tech is amassing data on the citizens and using this information for its own purposes, which makes the disparity even greater. Besides, the industry has been utterly inconsistent in governing what speech is allowed and what ought to be blocked.

A third perspective is to acknowledge it doesn’t matter who is the “true” upholder of the public interest; for all practical purposes, the outcome of the struggle between Big Government and Big Tech will be determined by relative bargaining power. While governments technically have the ability to take entire platforms offline within the borders of their countries, these platforms are now so enormous that their users would revolt. This is why we witnessed the audacity, recently, of Google and Facebook, threatening to de-platform Australia.

All said and done, I would say we now live in a new era of global diplomacy. It isn’t just states butting heads with other states; there are gigantic tech companies that have thrown their hats into the geopolitical ring. Any government, India’s included, that believes it can force these companies to do their bidding arbitrarily must reckon with this new dynamic of bargaining power between Big Government and Big Tech. India can impose a ban on TikTok and the politician’s children are deprived of endless hours of entertaining video. But if it turns the lights out on Twitter, Prime Minister Narendra Modi would instantaneously deprive himself of 66 million followers. Twitter knows that and the negotiators within the government know that as well.

The writer is dean of Global Business at The Fletcher School at Tufts University, the founding executive director of Fletcher’s Institute for Business in the Global Context and a non-resident senior fellow at the Centre for Social and Economic Progress

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