This article is written by Siddharth Jasrotia, from MNLU, Mumbai.

Introduction

The Internet will always be under manipulation, be it large corporations in democracies, governments in authoritarian regimes or religious groups in theocratic states. Today’s social media is stratified; multinational giants and political actors centralise freedom in the disguise of liberty. These platforms not only affect our consumerist decisions but immensely affect our ‘Democratic Decisions’ as well. They colonize social media, keep track of our daily lives and affect our opinion by promoting conspicuous goods, a particular form of Government etc.

Internet regulation lags far behind the technology itself. Internet users need protection, but the question is from ‘whom’ and ‘who’ should be the one to provide it. Should state protect personal information of netizens from fellow users and multinational corporations or it should be protected from state itself. An interesting thing to note is that despite the difference in approaches, China still remains the biggest overseas market from American internet companies. More than half of the investment done by these American internet companies are to China. The opposite is also true, as the US is the largest IPO destination for Chinese internet companies, with a worth of US $500 billion. Alibaba’s IPO in the US is the largest IPO in the world.

Social media regulation in China

There are four Chinese internet backbones: (a) CHINANET (b) CHINA GBM (c) CERNET and (d) CSTNET. The first two are under the administration of the Ministry of Industry and Information Technology (MIIT), the third one is under administration of the Ministry of Education and the fourth one is under the administration of Chinese Academy of Sciences. 

Chinese gave birth to social media platforms such as Youku Tudou, Weibo, WeChat. Microblogging platform Weibo is an alternative for Twitter in the domestic sphere. China is way ahead than the US in terms of viewership and users of their respective social media platforms. China has maximum mobile ownership in the world, has 120 more mobile live broadcasting applications than US, beats US’s gaming platforms such as Twitch and YouTube Gaming via Chinese gaming applications such as Duoyu & PandaTV and is the home for tech giants such as Baidu, Alibaba, and Tencent which gave birth to multiple online TV platforms such as iQiyi, LeTV, and Sohu. During its initial growing phase, China followed the ‘shanzhai’ or ‘copycat culture’ of copying western websites in order to expand enough to create scope for innovations. China put forth a responsive enforcement strategy of enforced self-regulation. Across its legislations, China has focused on ‘Platform Regulation’ prior to ‘Content Regulation’. The Decision on Safeguarding Internet Security, 2000 criminalises online activities undermining the position of the government, endangering national security, eroding national unity and promoting religious cult organizations. The Telecommunications Regulations, 2000 and the Internet Content Provider (ICP) license scheme, were passed in the era when viewers were not simultaneous content makers. It provided for content generating websites to get license from Ministry of Industry and Information Technology (MIIT) to publish content, which is found to be against above mentioned laws, can lead to revocation of license. Non-licensed websites can only re-publish the content published by licensed websites. Section Five of the Computer Information Network and Internet Security, Protection, and Management Regulations, 1997 lays down various types of content that are considered harmful. Due to one country two system policy, Hong Kong and Macau enjoy much more autonomy over social media than the rest of China.

Initially, China has separated itself from Internet Corporation for Assigned Names and Numbers (ICANN) and Regional Internet Registry (RIRs) because of them being non-state actors capable of challenging state action and because of ICANN being a US entity having contracts which make it subservient to US Department of Commerce. With the emergence of Web 2.0/social media online services content viewers were simultaneous content generators. This made regulation of content an impossible task. To tackle with this changing scenario, Chinese Government passed the Public Pledge on Self-Discipline for the Chinese Internet Industry, 2004 and Provisional Provisions for Administering the Development of Public Information Services on Instant Messaging Tool, 2004, which emphasized more on platform regulation as compared to content regulation. The Golden Shield Project (2006-2008) was implemented by the government by virtue of which it can access records of any citizen and delete them for being harmful. State Council Order No. 292, passed in the year 2000 states that based Chinese websites cannot link to other social media websites from around the globe. Article 11 of this order creates liability on providers for content verification and Article 14 gives the Government the authority to assess any record. It is surprising to note that among the 18000 websites blocked from within China, Gmail is one which does not fall under any category of Chinese law as illegal.  In China, privacy is protected under the right of reputation based on civil law of the People’s Republic of China. Government departments such as Ministry of Public Security, Ministry of Information Industry, Information Steering group of the State Council, Pubic Information Network Security Supervision Bureau, China National Information Security Testing Evaluation and Certification Centre (CNISTEC) monitor online activities and are regulated by legislations such as  Regulations for Administering the Internet News and Information Services, 2005, Rules for Interim Regulations of the People’s Republic of China on the Management of International Computer Information Networking, 1998 etcetera.

Tort Liability Law, 2010 enacted by China makes a network service provider jointly and severally liable as a party infringing other’s civil interest or rights. Civil interests are a broad category which includes online right to privacy, copyright, patent et al. Government agencies either manually take down illegal content through censors or temporarily auto-block them based on keyword filters and later judge their nature. China has an internet police force of 2 million which monitor people’s actions. China has also announced in Science Military Strategy, 2015 that cyber warfare is its top military priority. The surveillance network known as the “Great Firewall of China” censors’ content of every blog, e-mail or social media site. There are an average of 30,000 government censors in place which remove anti-government content or block international sites viewed as unfavourable for Chinese netizens. Although the number of complaints regarding identity theft and fraud are more in the US, complaints regarding random release of personal information are more in China.

Shanghai Pact or the Shanghai Cooperation Organisation to which both India and China are members has been created to counter the monopoly of the North Atlantic Treaty Organization (NATO) to which the United States is a member. Taking an insight into the evolution of social media platforms in China, it is clearly visible that the model of ‘innovate security’, although compromises with human rights but promotes economic growth. Even in the absence of Web 2.0 and social media, domestic Chinese social media sites such as WeChat, Sina Weibo, and Youku Tudou have grown enormously and started competing fiercely in the international domain. Within China these sites have monopoly over social media, whereas outside China few US social networking sites have monopoly over the rest of the world. 

It is observed that China focused more on promoting competition between government agencies rather than wasting time on raising private capital by virtue of legislative enactments. Although internet access routes are dominated by the Government, still private individuals are allowed to rent bandwidth from state enterprises. Although China does not promote self-regulation but it emphasizes self-discipline. Example could be the launching of net.china.cn as a report centre for inappropriate and illegal content. Quasi self-regulation projects partly monitored by the Government are being launched in China such as Internet Manners and Culture Project or the Internet and Self Discipline Alliance, which focuses on regulating activities of service providers.

India has an edge over China due to the literate English-speaking population, nonetheless China has used its lack of proficiency in English to promote indigenous sites that are in Chinese by creating a ‘Linguistic Great Firewall’ for foreign players. 

Social media regulation in USA

US is the father of social media platforms like Facebook, which has more than 1.7 billion users worldwide, which is equivalent to more than 2/3rd of the online global population or YouTube which features in 88 different countries and is available in 76 languages. Websites of these social media sites by way of collecting ‘cookies’, collect personal information. This information is often sold for profit under the cover of enhancing consumer experience. Unlike entertainment platforms such as Netflix, which faces friction in its expansion due to obligations towards right holders or which has the onus to prevent any person from accessing its content informally, YouTube enters into ‘Partnership Agreements’ with its content creators, thereby maximizing profit and minimising cumbersome legal work. It claims to be a middleman between advertisers and content creators. It has refused from taking the status of a content/ IP ownership company and rather portray itself as an online service provider in order to get the immunity from copyright infringement granted to service providers under U.S. Digital Millennium Copyright Act, 1998.

In the US, where on one hand, Federal Communications Commission (FCC) focuses on establishing net neutrality, Federal Trade Commission (FTC) on the other hand, through its Child Online Protection and Child Online Privacy Protection Rules limits children’s access to certain content, which creates certain degree of confusion among content creators and assessors. These Rules along with Children’s Internet Protection Act (CIPA), 2000, mandates K-12 schools and libraries, receiving federal Universal Service Fund, to take necessary steps in order to prevent exposure of children to harmful online content. FTC also emphasizes on protecting privacy of users by educating them about software such as Anonymizer, Encryption Software, System Cleanser, Opting Out etc. US’s Online Privacy Alliance (OPA) promotes self-regulatory initiatives such as Privacy Preference Project by World Wide Web Consortium (W3C) and license programmes such as TRUSTe. The freedom of free speech and expression has been granted under First Amendment of the United States Constitution, with primary exception to obscenity and child pornography. Although there is no explicit right to privacy under the US Constitution, it is invoked as a provision of the fourth amendment which prohibits unwarranted searches by the government. Modern form of digital privacy extends to control of personal information even after it has been disclosed to others. 

US laws focus more on the removal of illegal content than blocking it. It is either done by partly state administered authorities, private organisations or voluntary by self-regulatory service providers.

The Computer Fraud and Abuse Act (CFAA), 1986, which makes violation of ‘terms of service’ of Internet sites a crime, is highly criticised because terms of service can be changed at will, without any notification to the user. This gives internet sites an undue advantage over internet users. The Digital Millennium Copyright Act (DMCA), 1998 limits the liability of a service provider against copyright infringement by users. 

The Cybersecurity Information Sharing Act (CISA), the Stop Advertising Victims of Exploitation Act of 2015 (SAVE), the Allow States and Victims to Fight Online Sex Trafficking Act – Stop Enabling Sex Traffickers Act (FOSTA-SESTA) are some of the others laws in place in US. These are criticized for putting unnecessary burden on internet companies and intermediaries by forcing them to proactively take action against sex trafficking activities etc.  Both in the US and in India, users of social networking sites aren’t guaranteed immunity as is given to social networking sites. Hence, users posting defamatory or other illegal content can’t escape liability under Section 230 of Communication Decency Act and Section 79 of Information Technology (Amendment Act, 2008), respectively.

The way ahead

India has emerged as a hub for the IT sector. Chief executives of Microsoft, Alphabet (Google), Adobe, MasterCard SanDisk etc. are all of Indian origin. These social media sites have given Indian music and stand-up comedy artists a platform to make a living. Social media industry in India & China thrives due to lack of diverse content on traditional offline platforms. Content creators have used such platforms to create their own brands and often have huge fan following.

India’s model of regulation of social media has been comprehensively given in Framework & Guidelines for Use of Social Media for Government Organisations by Department of Electronics and Information Technology, Ministry of Communications & Information Technology, Government of India. The link for the same has been provided in the reference section and can be relied on for further understanding India’s current legal regime. Researcher has refrained from elaborately explaining the Indian model as it is beyond the scope of this project. This project emphasises on what India ‘needs’, rather than what India ‘has’.

It could be analysed that digital sovereignty of India has been compromised with. Currently, India is in no position to take an independent stance in network security issues and is dominion to the will of other countries in regard to internet governance issues at the international level. This is because India is largely dependent on international giants such as Google, Twitter, Yahoo, Facebook, etc. for internet related services and does not have a support base of its own. Moreover, India is also economically dependent on other superpowers for the profit it earns by supplying them with software. The US has been highly criticised for snooping on other fellow nations, among which India takes the fifth position. Both India and China have huge populations, but India lacked the legal framework and the vigour like that of China to protect its domestic actors, pave way for innovation and became a top leading internet giant.

Chinese model of internet regulation, even though it appears to be repressive in nature, has the potential of promoting innovations, growth of domestic tech giants, preventing data colonisation and preventing threat to privacy from foreign corporations. This model, if applied in India, with a little modification, can prove to be a huge success due to the presence of two factors: (a) Independent Judiciary and (b) Responsible Government. Due to the presence of an Independent Judiciary, fundamental freedoms cannot be compromised with and due to the presence of a responsible form of government, a political party in power will never try to misuse private information of people. A responsible government is more reliable than economically attentive multinational companies.

It can be analysed from the increasing number of cybercrimes, increasing demand of protection by citizens, increasing demands by companies for the enforcement of the laws in cyberspace, that the global media is moving from an unruly cyberspace to internet systems regulated by state legislations. The same is also observable from localisation of social media websites due to location-based filters, geo-blocking and different licensing in different jurisdictions. It is a need of the hour that each nation-state must have sovereignty over and regulate its own internet system, and global network of internet must be governed according to treaties between different nation-states as is the case with other international and national issues like trade, tourism etc. Thus, international organisations like the UN, must come forward and take the lead from dominating US tech giants.

India, being aware of this tried to put forth a proposal for setting up of a Committee for Internet Related Policies (CIRP), accountable to the United Nations General Assembly (UNGA) but was unable to do so, because of high resistance from country’s IT sector whose major players depend on US internet services and purport US hegemony. The IT sector needs to understand that what is needed is innovation, which can be achieved by promoting domestic players. Currently, IT sector’s growth has reached its saturation point and in order to grow further, a model of internet regulation similar to that of China must be followed.

India has been in favour of international regulation of the internet by the United Nations and has shown its willingness by supporting the World Summit on Internet Service (WSIS) and the UN World Group of Internet Governance (WGIG). Policies regarding regulation of social media is affected majorly by four actors namely, industry groups, citizens group, administrative authority (e.g. the FCC, FTC & NTIA in US) and the Government. A majority support from all these is needed in order for the policy to be properly enforced. Thus, a model to ‘bottom up’ self-organising systems and ‘top-down’ control mechanisms in order to prevent monopoly of neither the state nor the corporations can only be achieved through co-operation between the domestic IT sector and the Government of India.

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