The push for regulation of online news — as the Ministry of Information and Broadcasting, has formed a committee to do — has been driven by a perception that the online space has failed in tackling bad actors and bad content (hate speech, fake news). But the concern with government regulation remains because some see it as taking a bad situation and making it worse. “When you talk about market failure you ignore government failure, government failure is ubiquitous,” said Amit Varma of Think Pragati. Since the beginning of the internet, the barriers between information and its consumers have slowly withered away as traditional news organisations and their editors have lost their gatekeeping monopoly. Anyone can start a blog and subvert business models of news publishing giants considerably larger than they are.

So even before one talks of regulating online new the question that needs to be asked is how does one define it. Is the web edition of an old media (TV, print) online news? Can a blog which is run independently be labelled as online news? Is a post on social media online news? Even if one overcomes this seemingly insurmountable odd how does one go about regulating it?

This discussion held at the Hilton in Mumbai, with support from STAR India, Amazon and Google raised these key questions.

Should there be regulation?

Nama Mumbai

ThinkPragati’s Amit Varma speaks.

The key question put to the panellists before discussing the nuances of the regulatory process was that if there should be regulation at all? Varma responded, “I have three points to make one this. One there’s already excessive government regulation. The IT Act still stands, 69A is applicable, we have sections of IPC like 295A and 153A which clamp down on free speech. These laws apply to online players everywhere. The second point is that the Government is not this wise benevolent entity which if it regulates will solve all our problems. Giving the power to regulate essentially gives one set of interest groups extra power when they already have the power imbalance favouring their side. In a democracy, you need the marketplace for ideas to be as even as possible. There will be regulatory capture by interest groups as we have seen with regulation in other spaces. The third point is that we make a mistake when we talk of either government regulation or self-regulation. The way I look at it is that self-regulation is the outcome of the only true kind of regulation that is competition. Whether you call it the market or civil society or whatever that itself is the regulatory force. So I believe that government regulation is the wrong solution and it would make things much worse.” But the question raised was that when it comes to regulating things like fake news and hate speech has there not been a market failure? “When you talk about market failure you ignore government failure, government failure is ubiquitous,” Varma responded.

Regulation of traditional media

Govind Ethiraj, the founder of IndiaSpend and BOOM

Govind Ethiraj, the founder of IndiaSpend and BOOM, had previous experience of working in television media where there has been government intervention, so he tackled the question of whether regulations on that front had helped keep things sane and the pressures faced because of the same, “Ten years ago, after the terror attacks in Mumbai, the information and broadcast minister at that time Anand Sharma called all the TV broadcasters in to a room in Delhi and basically asked ‘What the hell have you guys been up to?’ The specific reference was regarding the way channels were broadcasting the visuals from the attack and the rescue operation. What that exposed was the fundamental flaw in the way that the TV media worked. So the minister’s whole point was that what has to be done from now? That evolved in a manner that a self-regulatory organisation had to be set up. This was also the early days for TV news channels as most of the 300 plus TV news channels we have, started around 2008, that is after the formation of the self-regulatory system.” Ethiraj then speaks about the pitfalls that came with the self-regulatory system, “It was clear from the beginning that it was going to flounder because there were players who felt they didn’t belong to it. There was nothing the others could do about it because there was no way to control this. When I look back now and see how private television news has evolved I think it is quite clear that self-regulation has largely failed. What we haven’t seen is the extreme immaturity of coverage we saw during the terror attacks. But what we don’t know if something like that were to happen again how will online media behave.”

Ethiraj though conceded that there is a need for self-regulation in the online space, mentioning the 2008 attacks again he said, “We (online media) have to be ready for events like this, these are turning points. The Mumbai terror attacks was a turning point for TV news and the Cambridge Analytica incident was a turning point for social platforms as everyone is now questioning everything.”

How platforms deal with bad content

Nikhil serves as the moderator for a popular subreddit.

Talking about dealing with content on social platforms Nikhil, who serves as a moderator for a Reddit community in India said, “There’s a fundamental difference between with what we have to deal with and what someone in news has to deal with. I really don’t know what someone will put up tomorrow and it could be anything. So is that content? Is a comment content? And if so does the same level of the regulation apply to it? Let’s assume not since it is inconceivable that you can manage that much. But at the same time, we have to deal with it. Our toolsets and our ways of dealing with it are constantly evolving. A lot of the tools we are developing are based on the fact that we are always chronically going to be understaffed. At first, we did it manually, then we built flags based on keywords, then again these decisions are made based on what is acceptable and unacceptable speech for a very large group of people.” So then the question comes up on what is acceptable and unacceptable, Nikhil responded, “It is a moving line. One of the lines that I jokingly mentioned is ‘fractal stupidity’. We start out with simple rules like do not hurt each other and people find ways to test the limits of that rule by walking on where exactly the line is. Then you need a new set of rules where you now have to offer an expanded set of restrictions. And this process continues. The frontier keeps moving but it doesn’t necessarily move in a productive way such that the job is done.”

So then the question came up that does the process of online moderation offer a glance into how responsive state regulation will work, Varma disagreed, “The state is very different. Reddit is a private entity, users have signed terms of use, therefore, all the moderation that happens is perfectly valid, there is no coercion involved. With the state its not like that so we have to be very careful with these analogies.” So what leads private entities to react to certain content and what protects the users from censorship by these private entities. Ethiraj pointed to the Youtube adpocalypse, “Many brands pulled advertising from Youtube (due to undesirable content). Proctor and Gamble pulled out for a whole year and they have come back only a few weeks ago. They did this because they felt that their ads were being served alongside content that was clearly objectionable to them. This is something people had never thought of before as Youtube is barely a decade old. So the question is who is putting the pressure? If there is a revenue model in place then the advertisers a looking at the platform and asking does this platform have sanctity and what kind of sanctity? If I look at things dispassionately as to why Google, Youtube or Facebook are reacting this way, I think the reason is advertisers. There is no other pressure point like money. With regulation people fight back because it feels good to fight back. But if an advertiser asks you to clean up then platforms have to clean up.”

Can self-regulation even work?

Geeta Seshu, a journalist at The Hoot.

The question of self-regulation came up again as Geeta Seshu from the Hoot joined the discussion, “We have had a very bad experience with self-regulation in legacy media. In print media, we have the Press Council which is a statutory regulatory body set up by an act of Parliament. It is supposed to have representation from the industry and journalist organisations. The maximum punishment that the Press Council can give out is censure. For TV there is the National Broadcasters’ Association is a private self-regulatory body. They have a code, and there the penalty is a little different. Not only do they ensure that offending TV channels have to apologise, but also give up to Rs 1 lakh in fine. While the rules are good, there’s nothing binding. Zee, for instance, refused to accept an order that it has to apologise for content.” On what action the government has taken against online platforms Seshu pointed to internet shutdowns by the government, “We’ve had 25 shutdowns of the Internet in the last four months. The interesting thing is that government doesn’t even use the IT Act, they use Section 144 of the CrPC.” Seshu also pointed out absurd instances of internet regulation/shutdowns, “They had an internet shutdown in Srinagar because of a rumour that Shahid Afridi will be broadcasting some address from the Jama Masjid. There were eight websites which got legal notices to take down content because they poked fun at an Anant Ambani speech.”

Is platform-driven regulation more palatable?

Nikhil then brought up the various toolsets that Reddit moderators are using to clamp down on bad behaviour which included profiling of language to get rid of repeat offenders. This raised the question, if we are not okay with government regulation why should we accept opaque moderation of content from entities like Reddit. “The reason we survive is that we are a private entity that says, ‘this is our forum, these are our rules, you have to abide’,” Nikhil argued. Varma agreed, “I am not as a user, entitled to space on Reddit. The same way I can tell you to shut up if you say rude things in my house. If I told you to shut up in a public space, that would be wrong and the state should stop me from doing that or punish me for it.”

Nikhil expanded on his previous point on Reddit being a private entity, “The issue is that by looking at this in terms of public and private, there’s a tension; when the issue is the working of the marketplace of ideas. Now the tools which are available are not about banning speech, but marketing non-information and marketing. Bad actors are innovative in the worst way. If you have someone who decides that we need to seed content into Reddit at scale, there’s no way in the current framework to stop that. Dealing with these actors is a new problem. To be fair to the people we end up removing, they have a point. The act of moderating doesn’t make someone go away. Then they find a way to find tools to say, listen to me.”

Additional note: The discussion took place on the 10th of May following which some key changes have taken place. First, in a cabinet reshuffle, Smriti Irani lost the I&B Ministry post, the ministry is now led by the Minister of State Rajyavardhan Rathore. In the first media interaction following his appointment, Rathore struck a much more moderate and conciliatory tone on online media regulation even insisting that the government believes that online news should self-regulate. The status of the committee formed by his predecessor is unknown at the moment.

Quotes have been edited lightly for clarity.