Ep 68： Online Content Regulation

Because I don't think those judgement calls on what people say or should not say should be made based on the personal preferences of people like myself or anyone else

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And if there is incitement to violence and this clear and present danger in the words of the US Supreme Court then I think that's...

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So I used to come at this a little differently

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Because I was an absolutist when it came to free speech

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And the point of view that you've taken about incitement to violence also indicates that you're not an absolutist

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That's a reasonable restriction to have a free speech

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I disagree because I think that incitement to violence would be wrong because you're being an accessory to a crime

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And it would be wrong on those grounds

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You don't need to clamp down on free speech or have separate laws for free speech

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That's what I mean

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I don't think you need to have any law for free speech

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And that if someone incites violence that is already taken care of under whatever laws stop you from for example whatever the incitement is

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Like if someone is telling you go and riot

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There are laws against riots and violence

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So therefore my position at one point in time was why should my right to free speech be curtailed by the state's inability to maintain law and order

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Because it is their job to maintain law and order

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And so therefore if you have a society where people are afraid to commit violence because they are afraid of the strong arm of the law holding them to account

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Then no matter what speech leads to that violence people would still be afraid to be violent from that perspective

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Now I know that's a utopian way of looking at it and things don't quite work like that

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And so therefore I do believe so I'm no longer an absolutist from that perspective

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But I do believe that committing a crime or inciting a crime from that perspective is problematic

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So we are actually on the same page except that you're saying you're not an absolutist

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And I'm insisting that this is absolutism because I'm saying no law against free speech

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Yeah

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Incitements are taken care of under other laws which deal with those

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So in fact this is the same position which the Supreme Court took in the 66A judgment where they said that advocacy is an important part of free speech

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And I think they also I'm not quite sure but I think they also took into account the fact that the right to offend is an important part of free speech

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The UN Special Rapporteur on free speech the last one who was Frank LaRue also included that in his report on free speech and also human rights and the internet

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So the Supreme Court of India said that incitement to violence is problematic and should be stopped

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But you know 66A had these terms like disparaging speech and annoying speech

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Which are vague and can be interpreted

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And are meant to be misused and those were struck down

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So you know while I think the internet has its problems when it comes to a bunch of issues

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When it comes to hate speech, when it comes to death threats, rape threats

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When you have instances of again incitement to violence

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There are issues of fake news and misinformation

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There are issues of filter bubbles and polarization

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There is a potential for foreign state actors to get involved and change the course of a democracy through you know very selective targeting of messaging

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These are all

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What Russia did in the US elections basically?

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I don't think it was just the US elections because like someone mentioned yesterday as well it may have also been in a part of the Scottish referendum

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It would have I think even with Brexit it's because the US is treating this as a direct threat on this democracy

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That the rest of the world is now taking it a lot more seriously

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But who is to say that these same tools have not been used in other contexts in the past that may not have received this kind of visibility

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What it has done is that it has made states aware of the implications of this all of these things happening

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And therefore they want to develop systems of control over speech some way of regulating

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Because the other thing that came through in the 66A judgment was and I disagree with this idea

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It came from the Supreme Court of India that they believe that the internet is a new medium and a new technology

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And therefore there need to be a new set of laws to govern the internet

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Whereas my take on this is that if laws are built on principles then the same principles should apply irrespective of medium

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Where the internet is different from other media is the disproportionate amount of scale that it has

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And the kind of interactivity and participation that lends itself to lack of control and lends itself to more freedom

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And therefore the state often feels powerless when it comes to dealing with mass movements and mass organizing that happens via the internet

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And let's face it like I've been involved in instances where we have used the internet to organize and build campaigns for freedoms

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But the same tools and the same methodology has also been used for example by ISIS to bring people over to fight in the Middle East

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So you know we are dealing with very complex problems and complex fears as well

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And very real fears because people could die or governments could fall through all of this

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And so at one level when a state feels powerless the response is to do whatever possible to ensure that it gets that power back

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Because it also has a responsibility to ensure the unity and integrity of that nation

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That's a mandate that we the people have given the state from that perspective

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I mean I've had this crazy conversation with someone with actually the head of E residency for Estonia

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Where we discussed this idea of and it's his idea of transient citizenry

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You should be able to very freely and very easily move in and out of being a citizen of a country

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And you should move to the state that serves you the best and that leads to states being competitive

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You know we talk about competitive federalism within countries

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But there is also this competitiveness between countries at a global level to retain talent

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I mean the US has won because it has had greater freedoms in the past

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In the same way so I don't know how we got to this point

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That sounds utopian and quite beautiful and just speaking of people voting with their feet and going to states which they feel serve them better

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It's notable that the Modi government is now planning to put an exit tax on billionaires who want to leave the country

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Because apparently since 2014 an extremely high percentage of really rich people have left the country

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I wonder why they would want to do that

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But which kind of indicates that you know that those who have the money and can afford to leave are by and large leaving

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You know including for example one of the Hiranandani's who built Povai you know

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But anyway this is a digression like you said

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But I'm just saying that if you think about so how does this work

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Is your approach as a state to retaining your best people

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Is it to try and prevent them from leaving or controlling the messaging that they're getting

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Or is it to create an environment in which they would like to stay

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Absolutely the latter

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There should be no question if you like if there are many things which Mr. Modi could have done to bring Achche Den

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And these people would not have left had those happened

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But you know I don't want to make this about Modi or Smriti Irani or this present government

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You know we had we had a problem with couple civil wanting pre-censorship like 66A

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I mean I think one of the fundamental things that people are missing during the current debates

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Is that it is not just this government you're fighting

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It is government overreach and power in general that governments always tend to overreach

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And on that note I want to take you back to the IT Act and 66A and the fights that happened there

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Because as we discussed when the internet first came

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Like the IT sector itself one reason the IT sector did well

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The field was so new that there wasn't regulation in that much stifling regulation in place as there is in other sectors

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But the government soon went about amending that changing that

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So and one of the ways they attempted to do that

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And by the way the rationale that you mentioned for we need to regulate the internet

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Because it's a new technology large reach etc. has essentially been used through the ages for every new technology

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Like for example our sensor board exists because in the early 60s I think it was when that court case happened

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The government basically argued that look cinema has a much wider reach than books

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And therefore we need to censor it and treat it in ways different from books

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And the same argument was made when the Gutenberg press was invented about books

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Where they said that earlier you know books would just go by hand and people would copy it

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But now it's been printed and reaching wide dissemination and we need to control that

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And so like you correctly said I mean this fear on the part of governments is natural

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Because hey they want to protect their power and all of these new technologies empower individuals

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Cut them a little bit of slack in terms of saying that they also want to protect citizens

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And there are people who are getting hurt who are getting abused

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And there is a real fear that you know if there is any kind of incitement to violence using online media

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There is a problem that the governments have to face I mean if you talk to police officers and district collectors

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You will realize that their job is to maintain law and order in that area

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They need to save lives and their logic is that if by shutting down the internet in this area

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If I am able to save one life how do you put a value on that?

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Sometimes the only tool you have is a blunt tool so I understand that

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No also because let's say in terms of messaging and content on the internet

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It's very difficult to monitor where it came from who published it who posted it who do they hold to account

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In that case you know they can't treat everything like a natural disaster

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Although quite often when mobs go on rampages they treat it like a natural disaster saying

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No one is accountable it was an act of nature

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In the same way you know like when a message starts spreading

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If it's a fake message of let's say between one religion someone getting raped

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Because of a religious identity as a revenge of some sort right

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They are going to incite communal passions within those communities

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And under those circumstances the district manage states they don't know what to do

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They have to prevent the spread of those messages

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This is one of the reasons why we've had the highest number of internet shutdowns in the world in India

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Like 70 last year I think there have been over 40 already this year

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Including I think someone mentioned yesterday that just day before yesterday there were three shutdowns

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Some of them are for nonsensical reasons there was one instance where

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To prevent people cheating in exams they shut down the internet somewhere in Gujarat

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And you know there are laws in place there are rules in place

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The government doesn't necessarily apply them in a manner which is in line with their own guidelines

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And a lot of these things get done post facto the first issue is to shut it down

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I think state capacity being limited the first impulse whenever violence is breaking out is

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First shut down the internet which is a very good point you make

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And you're playing devil's advocate with great success again

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So I'll turn this back on you and say that why is government regulation not the answer then

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Well the point is that the internet is already regulated

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Exactly

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There is a law for take down which is through a court process called section 79

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Where if you want some content which has being used to defame you or which has put up false information about you

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You can go to court and get that content taken down

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There is section 69 which is secret government blocking

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Where the government can ask an ISP to block a particular site

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And that's going to go through a process within the government which is why the Supreme Court retained it

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And you know there are existing laws regarding defamation and it's applicable online and offline incitement to violence

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So there are already laws existing

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I personally and we go back to that earlier point that I don't think there is a need for a different law for the internet

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So let me ask you this I mean we are both on the same page that we don't need all those laws

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But here's the thing all those IPC laws exist 295A, 153A and so on the sedition law

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The IT Act exists right now, 69A exists the government can block any website

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So what is it trying to do further? What's the deal? Everything is already pretty much covered

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With this committee I have no idea why this is happening

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I don't think anyone understands why this is being put into place

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What is this a reaction to because

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Is this a case of something is wrong maybe they heard our episode and here's a problem

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We must do something this is something so let's do it

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Is it that classic sort of

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I don't know and you know I have spoken with a bunch of people

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Nobody understands why the government is looking to do this

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It almost seems whimsical

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Because they already have draconian power

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Yeah so you know they do and you know I was joking yesterday that

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Varun Grover in his comedy routines uses this line called kabutar ki barfi

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Like you know the king steps out and says ki aaj hum kabutar ki barfi khayenge

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And then no one knows what is it but everyone says yes sir it's a great idea

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So we don't know whether this is as whimsical as that

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They're trying to control news and entertainment

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In a space where you can't distinguish between news and entertainment

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Where you don't have jurisdictional control

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Because I can start publishing out of somewhere in Norway

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How will they even be able to stop

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Like I said I don't know why we should make that distinction

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And on the internet these are all moving targets

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You block one site another one will crop up

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We did that with the blogs if you remember

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When the blogs were blocked all we did was

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At the end of the thing we added colon 8080

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And everyone was able to access the blogs

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But this was only the people who were savvy enough to know those

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No but these things spread

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Look whatever happens on the internet it's like a

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Hydra multi-headed hydra things keep you cut one head off another one pops up

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This is not going to end it's always a moving target

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In a sense regulation is impossible but that is not the argument we want to make

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We want to make the argument in principle

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But let's go back to sort of the IT Act and 66A

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Because that to me is illustrative not just in terms of

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How the government realizes that hey this is something we don't regulate adequately

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Let's go in and try to do this

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But it's also illustrative of something that you've been part of in the past in other contexts

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Which is a civil society fight back against it

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Both in terms of sort of media outrage

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And also in a legal sense

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So can you tell me a little bit more about that

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So what happened with 66A was that

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There were terms that came in from the government in the 66A law

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Which were about speech that is annoying and disparaging

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And very vague terms which can be misinterpreted

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I've got to say article 192 of the constitution which lays out reasonable restrictions

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Is equally vague in terms of public order and decency and morality and all of those

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Well this was even more vague

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I know yeah

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And so because it didn't hold up to even article 192

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It was struck down by the Supreme Court because it was also being used arbitrarily

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But tell me a little bit about that process of getting it struck down in the political economy

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So I think what happened was we got a bit lucky in the sense

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And someone got hurt in the process so it's not right to use the phrase lucky here

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But essentially two innocent girls

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One of whom put up an update on Facebook when Bal Thackeray passed away

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Saying that why should there be a holiday every time a politician dies

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Now that was disrespectful but it was clearly not violative of article 192

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And so therefore I think a bunch of Shiv Sena people landed up at the police station

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And forced them to arrest these two girls

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One girl had put up that update the other had liked it

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And so that was this real single case of this young lawyer from Delhi

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Who had some legal backing as well in terms of great support

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She went and filed a case for getting this declared unconstitutional

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There were other cases also that had been filed and they got clubbed with this case

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So there were other ITI cases on section 79, section 69 as well

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And up until then we had been raising these issues

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But a lot of the instances of people getting arrested under 66A were not like as

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Some of it was related to political speech so there was a cartoonist, Asim Trivedi

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He was arrested because of some cartoons against a politician

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So under those that wasn't declared and I think there are people who may not have been as convinced by that

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Saying oh this is political speech and he's being

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There were instances where someone was being disparaging to the national flag in cartoons and stuff like that

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There were issues there

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I remember writing a column a decade ago about somebody arrested for insulting the flag and the anthem

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Separate incidents under 295A

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I mean those laws always existed and still do

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They do but I'm just saying that this was as clear cut a case saying this was just wrong

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And so because of all of these petitions filed and more people became aware of the way this law had been misused

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I think a lot of us got together and we started raising the issue that we had been raising for a while

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So the way change happens is that it you know I mean

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Marshall Gantz talks about this in terms of organizing is that there is a story of you

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As in why does something matter to you

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Then there's a story of us saying why should this matter to all of us

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And then there's a story of now

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As in why is this important now

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So quite often that I've seen with

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For my sake and the sake of the listeners which book is this

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I don't remember the name of the book but Marshall Gantz is a professor at the Howard Kennedy School

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And he teaches organizing

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If you go to YouTube you'll find a series of lectures from the resistance school which was brought out to teach liberal resistance on issues

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So I've watched a bunch of those episodes

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And so Marshall Gantz so the story of now is very important and I think most of us missed that

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So even with the net entirety campaign which I was a part of the team that ran it

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I've been raising this issue of net entirety for years

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It took a really horrible paper that made it a clear and present danger

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For people to galvanize and start acting on it along with everything else that came together

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In the same way with 66 said a lot of people had been raising these issues

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But this was the one case that did it

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So there's always a story of now that needs to kick in for these cases to for some change to start

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Is that story of now something that happens serendipitously or can something be framed to become the story of now

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It can so one is the creation of deadlines

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So saying that you know you need to act on this by this date

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And that's when these changes will kick in

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So it depends it you have to keep you can create some sort of urgency

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But it's not easy because it always be questioned asked why now

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Why is this important like story of us and story of you address why is this important to you and to all of us

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But the now is often out of our hands

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So for example in Adha with the Supreme Court case there is a clear story of now that has that kicked in sometime around December

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Which was created by the government enforcing linking deadlines for December 31st

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So when we ran the speak for me campaign at that point in time

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That was a story of now kicking in saying here's the deadline

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Mail your MP mail your mobile operator mail your bank saying you do not want this

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If it hadn't been for the deadline and that made it indefinite

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We wouldn't have had a story of now with that in the same way the Supreme Court case going on

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So this is to galvanize people together

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You need all of these three elements which is very interesting

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So an evil government boffin who wants to do something which they know is wrong and will attract resistance

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Yeah, can then avoid putting in elements which can turn into a story of now

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Well, historically tyranny has always creeped up on societies rather than

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And you know, so in some instances, obviously there have been military coups, etc.

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But typically sustained long term sustained tyranny has crept up

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And you haven't realized that it's hit you because then they avoid giving people that moment

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And we often quite often when it comes to attacks on freedoms and attacks on free speech in particular

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We tend to keep moving on to the next one and the next one and the next one and forgetting the ones that got left behind

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So sometimes it takes this one case in one instance, which galvanizes a lot more people together to push back

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So and you know, so here's here's a thing, right?

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I think this attempt to regulate online content

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I feel that it is just as worrying if not more than the net neutrality issue

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Because net neutrality was about the ISPs controlling what you can and cannot access

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And charging you differently for what you want to access

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This is looking at creating a framework for controlling your speech

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This should matter more to people

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So why that isn't as much of an outrage now is something I don't quite understand

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We saw, for example, there was this huge outrage about encryption a few years ago

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They were saying that all your WhatsApp messages, you have to store copies in plain text

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For me, the stupid policy that came out of the government

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Immediate outrage, immediate withdrawal

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If you remember porn ban, huge outrage in a country as overtly moralistic as ours

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Huge outrage against a ban on porn

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Enormous consumers of porn had encouraged all of you to read this book called Everybody Lies by Seth Stevens Davidovitz

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Which just reveals not just the amount of porn Indians consume but the kind of porn which kind of blew me away

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But sorry carry on

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So we had the Attorney General of India going to the Supreme Court and saying

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We don't want to be in anyone's bedroom

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And this is not that kind of a government etc.

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He said all of these things that we don't want to control what people watch then

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And now when there's this talk about regulating online content, there is no reaction

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You spoke about creeping tyranny which is a really important point

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And I don't want to make a political point right now

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But it's important to point out that yes what I say and many people say about Narendra Modi being the true heir of Indira Gandhi

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There's something to that

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But I think people make a mistake when they talk about him imposing another emergency

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He doesn't need to

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He doesn't need to actually declare an emergency

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He can give himself the same kind of control in a creeping sort of way

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Well I think there's been a creeping increase in control and attempt to increase control ever since 2008

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Like the attacks on Bombay were used to bring in significantly regressive controls to changes in the IT Act

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Which brought us section 69, which brought us section 79 which was later watered down by the Supreme Court

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Which brought us 66A and you know even half

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And let's not forget that these are governments which argue for it

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It's not necessarily political parties

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So you know you had the BJP criticizing 66A if you remember

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Which is a point I make

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The government in power is always going to

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But the 66A was settled during the BJP regime

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And in court the government under the BJP was still arguing for 66A

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Right

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Let's not forget this is the same government that argued against a fundamental right to privacy

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In the same way that Kapil Sibal also argued for pre censorship and for protecting 66A

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My point is it doesn't matter who's in power

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Governments will come and governments will go

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It's the power that we allow governments to accumulate over us over time

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The problem is not incremental

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The problem is the state

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It's not a government or any particular party

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It is in the nature of the state to consolidate and increase power

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And it is imperative on citizens to you know keep fighting back constantly

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Regardless of which party is in power

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Oh and this is funny

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One of the things that's happened with this particular committee

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Is that the Ministry of Information and Broadcasting which has created this committee

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Does not have jurisdiction over the internet regulation

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So what's happened is that over the last two years

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Raja Vardhan Singh Rathore who is the minister of state for information and broadcasting

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In a written response in parliament has said that it has no plans to regulate the internet and online content

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Or video on demand services because that is the jurisdiction of the Ministry of Electronics and Information Technology

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Wow

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So you have a situation where after twice having said hey this is not our remedy

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We shouldn't be doing this

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They've gone out and created a committee for doing exactly that

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So I'm not quite sure about how the government functions

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How can they create a committee over an issue that they don't have jurisdiction

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I mean this is very funny

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Governments often you know parties contradict themselves

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Given when you see what they say when they're not in power and when they are in power

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But here this is actually a minister

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They're contradicting themselves while they're in power

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But the other problem and I want to get into this bit

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Is this entire idea of self-regulation

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Because we are already regulating how we speak and what we say

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Because there is this fear of a clamping down from the government

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You saw that yesterday we had Tanmay Bhatt talking about how comedians are discussing about how they will treat certain jokes

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They might you know tell a joke to a select audience knowing that will not be broadcast

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And they might not put that online or they might only do it in a wider audience in a show

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So you're already controlling where your message goes

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In fact my producer on the show Abbas who's right in the studio right now is a stand-up comic

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And you should see the kind of jokes he tells me in private

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He'd never dare to repeat them outside

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And so therefore

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Glad I made him laugh

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So for me that's worrying you know so there is

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There are like when Amazon first came to India

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When Amazon Prime first came to India

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They had two versions of American Gods

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One was the part that they promoted here which was censored

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And then there was another one if you search for American Gods you also saw something called International Edition

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Which was not censored

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Angry Indian Goddesses were censored by Netflix

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And so you've had these situations where many of these platforms are self-censoring

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Because they're afraid of government pushback against them when they don't need to self-censor

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That's a chilling effect

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It's like someone said in 75 during the emergency as well that the press is crawling when they're asked to bend

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Which is you know that kind of overreach

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No I think over here no one's even asked them to bend yet

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And we know that the industries the professional content providers are already discussing a self-regulation code

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Which means that it's likely that we will

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That they will have their own version of a censor board within each organization that's going to censor content

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According to what they agree with the industry agrees the norms for our country will be

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And I would go back and say that you know my right to get that content in an unadulterated uncensored form

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Is just as important to me that's a right that I have in that sense right

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That's a positive right you're defining not a negative right

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You know in the sense that I would say that if certain media houses choose to self-regulate in that way

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I think that is fine it's up to them as long as no other media house or individual is coercibly forced to conform to those rules

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So for example if

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But what if they collectively do that and therefore

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But how see like I'm editor of a magazine Prakriti right

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Five other online magazines can come together and collectively decide to have certain standards for themselves and bleep out certain things

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I don't care as long as they don't force me to do it

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No again and this is where I think we had this discussion yesterday as well but I kind of disagree

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What's happening is that there is very little room being left for up starts to come in

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And for there to be a truly competitive market when it comes to the aggregation of content

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Because of market power which allows exclusivity for that particular piece of content

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And you know this is what's happening to the internet so if you look at antitrust regulations

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This instance has a thing in this instance any any online magazine say that joins a self-regulation group like this

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In any case has the intent to regulate itself and conform by the government guidelines so it doesn't make a difference

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My issue always comes where the coercion begins

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No no but I'm saying that

2679

Whether it comes from the government or any other group

2681

I'm saying that in even when you look at private parties if you look at the access to content and the entities that control it

2689

It's a fairly limited set so there is cartelization in this censorship

2693

Sure and therefore there isn't enough room left in the market for alternatives and the only other route is piracy

2701

Yeah but here's the thing what I'm saying is that cartelization in a sense that cartelization of what approach you have towards news and regulation

2709

Is there anyway regardless of whether you formalize it with a self-regulating body or you don't

2714

The decentralized nature of the internet actually destroys that cartelization and that is something which I'd mentioned

2721

But that can only be stopped with coercion

2723

Coercion from whom?

2724

I'm saying cartelization can only happen if there is coercion of some form

2728

Otherwise the internet is decentralized like for example

2731

No you see what's happened is that the majority of the internet is now

2735

And we discuss this in the future the internet podcast as well that it's largely being controlled by very large players

2742

For whom it's important for them to be able to play with governments in order to retain the power that they have

2748

And therefore there is no room left for example there is

2752

We're talking past each other actually it's a different issue

2755

The point of making as you made in the future of the internet

2758

No no so I'm saying that these larger players are more likely to self-censor

2763

In cartelization in order to be in the good favors of the government

2768

Yeah but no I'll tell you why we're talking past each other

2771

Because the point you're making is the one you made in the future of the internet episode

2775

And I agree that these larger players like Facebook and YouTube are almost like monopolies because of the market power they have and network efforts kicking in

2782

But what I was addressing was what you were saying about the danger of

2787

And I agree with the danger I don't think you know I think self-regulation is sort of pointless

2791

The market regulates the best and I'll expand upon that if you want or civil society regulates the best

2795

But for example the fear that you were expressing if I understood it correctly

2799

Is that a bunch of media houses will come together and decide to self-regulate and have a body that sets certain standards for them

2806

And therefore we are in trouble

2809

Now my point is that anybody who voluntarily joins such a body has the intent to censor themselves anyway

2816

So therefore it doesn't really matter its mood whether they formalize it or not

2821

It could be competitive in nature

2823

If you're the one that doesn't do it then there is a fear that there will be a regulatory backlash against you

2830

And so I'm just saying that the way because all of these guys interact because they work together

2836

I don't think competitive forces are strong enough right now to allow for an outlier

2843

For someone who's going to go against the grain

2845

Yeah but look here's the thing if the Times of India and the Hindustan Times and Indian Express come together and say

2850

And decide to split the market between themselves

2852

No no no they say that we'll self-regulate I'm just talking about regulation here

2856

If they say that we will self-regulate and we'll form a body and these are the standards we'll apply to

2860

The Hindu can say no without any consequence

2863

I'm not sure whether that's going to happen on the internet

2867

Which are the players you're referring to who will form a self-regulation

2871

No there's already a committee at the Internet and Mobile Association of India that is debating these issues

2877

There is at this point in time no clear agreement because there's some players

2883

And this is like information that I have from talking to sources

2886

There's some players who want a self-regulatory code who've already created one

2891

And there are others who want to work with them on that and there are others who oppose that idea

2895

So yes there is currently no consensus but with this government pressure coming in

2901

In order to ensure that there isn't overreaching government regulation

2905

They are all seeing self-regulation as a way out

2909

What do you feel about this?

2911

So I think they're being forced into self-regulation

2913

Right but if you were in like for example yesterday one of our fellow panelists said that

2918

Because government regulation is going to happen anyway

2922

We should self-regulate as a preemptive measure

2924

That's exactly the point right

2926

Which is a practical point they're making but I don't agree with it do you?

2929

So I think there needs to be a pushback against self-regulation because of a number of issues

2934

Number one is that it creates a distinction between the internet that we get access to in India

2942

Versus what we get access to across the globe

2945

So our exposure to perhaps content from across the globe might be impacted

2952

By people who do not conform to these guidelines

2955

And secondly what would happen is that there would be content that we want to consume here

2960

That is legal for us to consume over here

2963

But because of overarching guidelines I mean you've had instances of innocuous words

2969

Like breasts being censored on TV and in films

2974

Chicken breasts

2976

So would you want Netflix and Amazon etc to start doing that

2982

Think of people who want to watch Game of Thrones on Hotstar

2985

You remove the nudity from that

2988

So either you blurt it out or you cut those scenes

2991

And when you cut those scenes then you lose the context of what's going on

2996

So I mean there's an old question about what is art and what is obscenity in that sense right

3002

And so I think we would be worse off in terms of getting access to the kind of content which is legal

3010

That we should be allowed to watch because of an any state

3013

Secondly what would they do about those players who choose not to become a part of this self-censorship regime

3022

Would they be blocked in India right

3024

So the internet was meant to create that competitive marketplace where

3028

If there are consumers who want access to that content

3032

Everyone will have to evolve to being to providing them that kind of content

3036

Here it's going to happen in the reverse that it's going to get blocked if it's not a part of that

3041

The third point is that it actually then takes us down the road of enabling government regulation

3048

So you have self-regulating mechanisms in for example the News Broadcasters Association

3054

Where channels who do shows on snakes, sling, human babies and shit like that

3061

Don't necessarily like they're not a part of this News Broadcasters Association

3066

So they're not governed by it and so then for those who choose not to be governed by this

3071

Will that then lead to the government saying oh the self-regulating mechanism is not valid

3077

It's not working but we understand that you want there to be a regulation because you already have a code

3082

Now let us put our own code together and then we effectively open the doors for regulation through self-regulation

3089

Instead if what we need to do here is push back on principles

3094

So number one is that there is no distinction between news and non-news content frankly

3102

And news is not the exclusive prerogative of journalists

3107

Anyone on the internet can disseminate, can report news, anyone can have an opinion

3114

That's the freedom that we have on the internet which we don't have in print or on TV

3119

In the sense there's also there is no distinction between a journalist and a non-journalist

3124

Between a journalist and an entertainer, between a stand-up comedian and a news anchor

3130

These are all distinctions which have been made irrelevant

3133

There were roles and positions that were created through the implementation of control over who gets to communicate

3142

I don't need an accredition to launch a news site

3147

A stand-up comedian doesn't need a license to go and showcase his short film

3153

And I think that's the beauty of the internet

3156

We don't want to lose that nature

3159

There's a distinction that's being made between professional content and user-generated content

3165

On the internet all users are both creators and consumers

3169

Everything is user-generated content

3172

So therefore when you start slicing it up into pieces that's when it falls apart

3178

In fact after yesterday's discussion two tactical points came to mind

3183

And I agree 100% with you and very strongly

3185

Which might be a bit of a repetition but one tactical point is the reason that pre-empting government regulation with self-regulation

3193

I think is a self-goal is because then you are tacitly agreeing that this needs regulation

3199

It's much better to take a stand on principle that no this doesn't need regulation and there will be no regulation

3205

Once you agree that some regulation is required but you say we will do it ourselves

3209

Then inevitably the government will step in and find faults and say look

3213

You are not being able to do this because of X, Y, Z but you have already agreed regulation is required so let us do it

3219

It's much better to fight on first principles and say that no regulation is not required

3223

We will regulate you not the other way around

3225

And the second point is that I think you know there's this famous poem by Pastor Nyamala

3231

That you know first they came for the Jews then they came for blah blah

3236

And by the time they came for me no one was left to fight for me

3239

I think whether they intend to or not they might be achieving a similar effect here

3243

When they have all these categories of news and entertainment

3247

And you know one of the questions that you asked yesterday the cunning devil's advocate questions was

3253

That what if they'd come and tell the big players that don't worry we won't touch you

3257

We'll go after the small fake news guys first

3259

And the thing is this is very cunning because this is going to end in a Nyamala kind of way

3263

Where first they came for the small fake news guys then they came for the entertainment

3267

And when they came for the news nobody was left to fight for us

3270

And instead of this we all have to band together and say forget the categories

3274

Forget the ideologies, forget everything you believe in

3278

Just fight on this one principle if you agree with it that no regulation

3282

So going back to news I think one of the things that we've seen in common

3285

Between the two regimes with both Trump and the India regime here

3290

Is that there's been a distinct focus on discrediting news organizations

3295

And that's actually a part of the process of gaining greater control

3302

Because if people don't know what the truth is and they think that

3306

And I think someone is mentioning that in case of Reddit the organization is discredited

3313

And no one judges the content on the basis of the legitimacy of the content

3318

So the source is actually delegitimized

3321

And so I think we are still facing this problem as a country as a democracy

3326

Where news itself has been delegitimized

3329

Many news organizations have helped do that

3332

Because of the kind of entertainment that they have run on their channels

3337

And so there is also this counterpoint that perhaps there needs to be a better control

3342

Because that also has an effect on society

3344

So let me play devil's advocate now

3347

I was just doing that

3348

You were just doing that

3349

I will continue playing devil's advocate and I will throw it back at you

3352

So I'm putting you in the spot

3354

You referred to the 2008 broadcast code

3357

Where during the terrorist attacks TV channels made these obvious mistakes

3362

Which impacted national security

3364

Where they were showing what was going on

3366

And the terrorists sitting in Pakistan were getting that information

3369

And the government stepped in and said

3371

Look this is clearly wrong you need a broadcast code

3373

Everything very reasonable

3375

And the point that you made yesterday again

3379

Was that what has happened with Cambridge Analytica is an analogue of that moment for the online space

3384

And therefore the argument would come from the state

3387

That therefore government regulation is required

3389

And the earlier answer you gave

3391

Which is that there is already enough regulation in the form of 295A and all

3394

Is that kind of a cop out because we are against that regulation also

3398

Now look here is the thing that you will have

3400

There is always room for more regulation

3403

But there doesn't seem to be any room for building capacity

3407

To enforce existing regulations

3409

But that's also moot right

3411

My question is a philosophical one

3413

So the problem really is that

3415

The way regulations typically work is that their implementation is arbitrary

3419

It will be used in specific instances

3422

But many people who violate those same rules will be let go

3425

Nothing is going to happen to them

3427

But that's a utilitarian argument

3429

Give me the philosophical argument

3431

Would there be no regulation when things like this happen?

3434

I haven't quite figured this out yet actually

3437

I've been thinking about this for a while

3439

For me at one level I do believe there is a need for regulation of large platforms

3447

Because of the disproportionate ability they have to control narratives and speech and access to speech

3455

And we need neutrality in the access to speech

3458

For people to get the right kind of information

3462

In order to make better decisions

3464

And if someone is controlling that access to speech

3468

Then they are controlling the way that they are thinking

3471

So at some level I think we need to enforce neutrality amongst these organizations

3476

And also I do believe that we need to prevent mass targeting

3482

And mass personalization and behavioral targeting of citizens

3488

And business models of advertising need to change

3492

Because it is the blind nature of advertising that is taking us down this path

3497

Where people are able to make money by facilitating or spreading fake news

3506

Because there is no distinction between real and fake when it comes to the advertising business

3513

No one knows where that ad is being run

3515

But is your point then that regulation is required?

3517

No, so I'm saying that there are a large number of things that have happened collectively

3522

For this to become possible

3524

So if you prevent the collection of mass and very granular personal and behavioral data

3534

That is going to address micro targeting to quite an extent

3538

If you ensure that people have choice about deleting their own history

3542

And therefore not feeding algorithms or keeping the algorithms

3546

Or allowing the algorithms to profile them to a greater extent

3550

Then again you will be able to prevent personalization

3554

And at that level of scale where there are filter bubbles that are created

3559

So to each of these issues there are solutions

3563

So for example if you see Facebook actually deals with hate speech a lot better than Twitter does

3570

So from a self-regulation perspective I think it is up to organizations to change the way they work

3579

In order to ensure that there is no need for government regulation

3583

And unfortunately many of these organizations including Facebook have failed

3588

They wrote their luck for too long

3590

So are you arguing there is a need for government regulation?

3593

I think we've reached a point where it's difficult to argue against regulation as much as we don't want it

3600

And I think it's unfortunate that we've reached this point

3603

But are you for it or against it? Do you think it's necessary?

3605

So principally I'm against regulation but practically I think we've reached a stage where it is necessary

3612

No, no, where it's necessary or inevitable?

3615

Necessary and inevitable

3617

So that's why this is a very difficult question for me to answer because principally I'm opposed to that idea

3623

I'll disagree and I'll try to explain why

3625

I hope I can manage and then I'll bring up what is difficult for me to answer

3629

My disagreement comes from saying that number one what happened in 2008 can just be handled by

3636

Because it's a national security issue and it can be handled by laws that put into that

3641

You don't specifically need to regulate the media of free speech for an instance like that

3646

But apart from that the point I sort of made yesterday was that people often assume that when you talk about regulation

3652

There are only two options which are government regulation or self regulation

3655

To me the best kind of regulation the natural regulation which leads to self regulation but is an overarching thing

3662

Is competition that you know it is a and I'll clarify on that when you talk about seeming monopolies like Facebook

3669

Competition is the best regulation because you know markets sometimes have a bad name

3674

So you can call it market so you can call it civil society because markets are nothing more than a web of voluntary

3679

Actions of people in civil society citizens like us and I think you see this playing out in the sense that after the

3685

Outrage over Cambridge Analytica Facebook has actually made efforts to do something about it that at various times

3692

Various platforms have been responsive to what consumers want

3697

And I think as somebody made the point of the panel yesterday part of the reason they do

3701

So is because advertisers are leaving but advertisers are leaving because users are pissed off and and therefore it comes back to civil society

3709

I think I'm not so sure I don't quite agree with this what I think there are I think even in terms of the responses

3716

With Zuckerberg gave I don't think Facebook is entirely being genuine if they are not and I think there's ample proof

3723

For example in terms of the fact that they moved users out of Ireland in the changes to the conditions

3730

In order to evade strong privacy regulations that are coming under the

3735

So I think Facebook's we need to judge Facebook by their actions and I don't think we've seen enough

3742

My point is not that all private players are virtuous of course private players aren't virtuous and not responsive

3748

But the point is that do do people have options now your point is that if you want to go to a social networking platform

3754

Facebook is like a monopoly it's too big my point is that Facebook is not competing with other social network

3760

Platforms are competing with everything a person can do with their time and many people have left Facebook

3765

Because they're appalled by what happened during the Cambridge Analytica thing

3768

So they are choosing other options and that is a reaction of the market and ultimately that is the only regulation

3774

Which will work because it's the only regulation which is non coercive so look Facebook's earned its monopoly

3780

Just as Google's earned its monopoly just as Amazon has earned its monopoly

3784

By serving customers well but when they cease to do that

3788

I think it's not just serving customers well but it's also by building great products with large amounts of data collection

3797

Observing smaller potential competitors buying those competitors and so what's happening is

3805

They are very very quickly encroaching on each other's territory and therefore like the point that I had made in the last podcast

3813

Was about the same thing that we are there's a battle between elephants going on and democracy is getting crushed in the process

3819

No no democracy is getting crushed and that's a problem for which neither you or I have immediate answers

3824

But I think government regulation is the wrong one but I think you're missing sort of the point I was trying to make is that Facebook

3830

Though I agreed with you when we spoke about the future of the internet but in thinking a little deeper about it

3834

Facebook is not a monopoly because they might dominate social networking but to me Facebook is competing with many other players in how we spend our time

3844

And people might even decide like I have that social networks are a waste of time there are privacy risks get out of them

3851

And therefore they are in a very competitive marketplace because everyone is competing for your time

3856

So you know this is a classic problem when you're looking at antitrust which is definition of the market

3862

And so you and I may have different definitions of the market in the same way that you could say that

3868

Do you would you say that let's say if there is a single telecom operator in the market it is effectively not a monopoly

3876

Because it is also communicating with direct verbal communications or it's competing with telegraph and mail for communication

3884

So look definition of a market I don't quite buy that argument of defining the market

3889

Telecom is kind of different because there's a function there

3892

I'm saying that that can be so social networking right and so spending your time

3897

If you are you can always define markets differently to suit different needs and it's a valid thing to do

3904

But regulators have to look at it from the perspective of how is this impacting a particular market

3912

And also regulate for harm so let's take WhatsApp for example it was determined by the competition commission of India

3920

That WhatsApp has a dominance in the Indian market when it comes to messaging

3926

They did not compare it with SMS because it deemed that rich text messaging which WhatsApp is different from what regular text messaging is

3935

But it also determined that WhatsApp had not abused this position of power

3940

Now I think it's very clear that we are running the risk of many of these large platforms abusing their position of power

3951

And like I said then we cannot as a nation we cannot depend on the benevolence of these platforms to maintain our freedoms

3961

And so while states are constitutionally held to account or supposedly held to account there is no accountability framework in place for platforms

3973

Especially on these platforms when it comes to their control over free speech

3979

Because the medium of speech is just as important for the transmission of free speech as a message

3986

And so therefore we need an accountability framework for platforms

3991

When we talk of the mistakes we made around benevolence or when we assume that all government intervention will be somehow benevolent

3998

I don't think so but this is where I'm conflicted right

4001

I understand the need for certain kind of an accountability framework to be put into place for platforms

4007

But I also am afraid of government intervention

4010

Let me kind of make my point why I say that no matter what the problem is government regulation is always the wrong answer

4016

Because in this case what it would do is government is not a benevolent beast that sits upon us and will act in our best interest

4023

Government ultimately is a parcel of interest groups and what happens when you give government power

4027

When you give it the power to regulate something is that where there is already a power imbalance

4032

You are further empowering this specific set of interest groups whether they be political or commercial or whatever against others

4039

And accountability in practice simply isn't there right now

4043

And government failure is ubiquitous market failure is relatively rare if it is there at all

4050

And I would just say that all regulation that happens has to be non-coercive and has to come from civil society

4057

If companies break the law sure prosecute them that's the job of the state

4060

But if they don't break the law if you don't if it's a question of preferences that I'd prefer this algorithm to that algorithm

4067

There shouldn't be coercive pressure it should be the voluntary actions of people which indicate what happened

4073

And we can obviously disagree about how you define markets and monopolies

4077

And I don't think either of us have a solution to the problem that we've sort of been lamenting over this period of time

4084

But the thing is government regulation is making things worse

4087

I'm reminded of one solution which is regulating for harms which is and for which there are laws already exist

4096

So if you can define certain harms and define the laws under which those are governed and ensure that platforms

4105

So for example if it's hate speech if it's death threats if it's intimidation if it's incitement to violence

4112

Even if it's criminal defamation which I principally disagree with there are laws for that

4117

And I think it's just about then holding platforms to account for it

4120

Yeah exactly I mean we have existing laws which deal with a lot of those things

4123

Many of those we don't agree with but those are that's a way of regulating for harm

4128

So it is still regulation of these platforms but it's not going beyond what already exists

4134

See Nikhil when I talk about regulation I mean it is distinct from the rule of law

4138

It's understood that the state's job is to maintain the rule of law

4141

If the company breaks the law in any way then obviously the state does its job

4145

But if it's going to sort of regulate and give licenses or say that no you have to bleep out the word breast is not allowed

4152

Then that doesn't break any law and that kind of regulation is what I am against

4156

And so that's I'm not saying there should be a free for all where everybody does everything

4159

We agree on the rule of law again I think that a lot of the laws that regulate free speech simply should not exist

4165

And I know you agree with me on this but so the question is not about the rule of law

4170

We need a state which has the capacity to maintain the rule of law as strongly and firmly as possible

4175

We don't need regulation beyond that which I think is what you're saying

4178

Yeah I don't think we need regulation beyond that I also don't think we need to look at the internet as distinct from what we already have

4187

But I think one argument which also keeps coming up is and from the traditional players is that the need for regulatory parity between offline and online

4196

In which case what we have and the problem that we are facing here is that the traditional media is heavily regulated

4203

It is over regulated so their argument is you need to so there are two ways of doing it

4208

Either you reduce the restrictions on traditional media or you increase the restrictions on the internet for the regulatory parity

4216

Because I do also agree with this notion that you are effectively advantaging the internet versus traditional media

4225

This is there's an analog of this argument and I think in my episode on Uber it had come up

4229

That the black and yellows argued that the black and yellows on the auto rickshaws will argue that we've been so heavily regulated for so long

4236

That why let Uber and Ola run free to which my argument would be remove those regulations

4240

Exactly and by the way the same argument that also came up during net neutrality

4245

So in fact there's a playbook that the traditional players tend to follow

4249

The interesting thing here is that I was at a TRI open house on uplinking and downlinking of TV channels about three odd weeks ago

4258

And there both Zee and Star argued for deregulation saying that we shouldn't be treated as broadcasters

4266

We are content aggregators and we need to have the same freedom as online players do

4271

We need to have the same freedoms on traditional media platforms

4275

And the other thing that came in was interesting was that all of these codes and like uplinking and downlinking are permissions

4282

They're not licenses apparently and this was brought in because the government did not know how to tax foreign channels that were being downlinked in India

4295

So what was brought in as a means of getting revenue and effectively a tax collection

4303

Also lent itself to being a means of controlling whether the channel goes live or not

4309

And we know that there are for example I mean this is generally talked about in the media circles is how

4317

Raghav Behl's Quint and Bloomberg Quint their licenses have been stuck for quite a while

4322

This is again a point about you know they started regulating television from 2008 and look at the result

4328

Republic puts out whatever nonsense they feel like and Bloomberg Quint is not allowed a license to broadcast

4334

Don't give government that power let everyone broadcast and then if someone breaks the law you punish them

4339

Otherwise let viewers decide which they have a right to do

4342

So I wrote about this during the net totality debate

4344

How do you start a billion TV channels on the internet because there are no restrictions

4349

And that's I think what we need to also preserve the ability for all of us

4354

I think someone in the ministry read that and said hey look what this guy is saying is right we need to do something

4359

Nikhil this is all your fault

4361

Listen I know you need to catch a flight and therefore we have a hard stop coming up

4365

So we'll end this podcast here I think we've both had a very enjoyable ramble during this session

4372

And a long one at that

4373

And a long one and it's no I have to say it's always great fun talking to you because you're challenging me to think in new ways

4379

Giving me new information and it's a pleasure and I think this is hopefully an ongoing sort of process

4387

And thanks a lot for coming on the show

4389

Thanks for having me on the show I don't think we'll run out of things to talk about given how active governments have been on the internet

4396

You know this is the digital India age in a sense that's just beginning

4400

So unfortunately we'll have a lot of things to talk about

4404

I hope we never need to meet again but continue doing so for our own pleasure

4411

If you enjoyed listening to this episode I've done a couple of episodes with Nikhil in recent weeks

4417

One on Aadhaar and one on the future of the internet which we refer to a lot during this discussion

4422

You can check them out and all the archives of The Scene and the Unseen at sceneunseen.in

4427

You can follow Nikhil on Twitter at N-I-X-X-I-N and you can follow me at Amit Verma A-M-I-T-V-A-R-M-A

4436

Thank you for listening

4438

The Scene and the Unseen

4445

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4447

Check out another show by IVM podcast Simplified

4451

Which is hosted by my good friends Naren, Chuck and Sriketh

4455

You can download it on any podcasting network

4460

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4464

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4475

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Happy listening

Ep 68： Online Content Regulation | The Seen and the Unseen