Logo: Online/Offline Column by Nalaka Gunawardene
Blurbs:
Individuals, who are unaffiliated with any political party, trade union, or even civil society group, self-mobilise around a common concern. These alliances maybe fleeting, but they sometimes get themselves heard
Whether or not Sri Lanka needs to regulate its citizens using social media, and if so in what manner, requires the widest possible public debate involving all stakeholders. The executive branch of government and the defence establishment should NOT be deciding unilaterally on this
With millions of new content being posted 24x7 in hundreds of languages and using text, audio, video, and multimedia formats, the sheer volume and diversity make it very hard to monitor everything
----------------
A demonstration apparently devoid of political party involvement was held at Colombo’s Galle Face Green on 24 October. It involved an estimated 1,500 people or so coming together to demand a wage hike for plantation estate workers to Rs. 1,000 per day.
The demonstration was joined by some plantation workers from the upcountry areas, plus many of their children working in Colombo.
As journalist and social media personality Arun Arokianathan, who shared images and videos live from the event, noted in a tweet: “Power of social media once again proven...Hundreds of youth gathered at Galle Face after being invited through Facebook & WhatsApp to show their solidarity with plantation workers.”
This reminded me of another gathering at the same venue in March, 2015. On that occasion, a few hundred motorcyclists – who did not know each other – came together to demand the removal of a ban on full-face helmets (cyclists wanted to keep using them for added safety, but the Police wanted it outlawed for security reasons). The rapid mobilisation of demonstrators was through a simple Facebook page.
In the social media age, such citizen self-mobilisation is increasingly common. Often, individuals who are unaffiliated with any political party, trade union, or even civil society group, self-mobilise around a common concern. These alliances maybe fleeting, but they sometimes get themselves heard – or at least up their “nuisance factor” just enough for policymakers to take note.
More than a decade after the emergence of global social media platforms, this phenomenon still surprises – and even irritates – those in our government, corporates, and even organised civil society.
However, it provides further evidence for the growing societal impacts of social media – both as a platform for free expression, and as a networking facility that enables freedom of assembly.
Conversely, these very factors worry traditional centres of power and authority – leading to renewed calls for “regulating social media”.
Regulatory options
As I noted in the last column, whether or not Sri Lanka needs to regulate its citizens using social media, and if so in what manner, requires the widest possible public debate involving all stakeholders. The executive branch of government and the defence establishment should NOT be deciding unilaterally on this.
The ideal scenario is where social media platform administrators and users jointly self-regulate. Most key platforms have developed their own community standards for this purpose, but monitoring for compliance is patchy and imperfect.
With millions of new content being posted 24x7 in hundreds of languages and using text, audio, video, and multimedia formats, the sheer volume and diversity make it very hard to monitor everything. Even with automated software programmes (algorithms) as the first line of scrutiny augmented by human content reviewers, the systems are far from failsafe. Harmful or illegal content can slip through both levels, while legitimate content can sometimes be mistakenly flagged or taken down.
This reality has led a growing number of states to come out with their own regulatory responses. These broadly fall into three categories:
1. Outright blocking of global social media platforms – as is done in countries like China, Iran, and North Korea. This “brute force” option excludes the good and the bad of platforms, and violates people’s rights to know and to communicate (which authoritarian regimes don’t respect).
2. The Platform Liability Approach means national laws are passed demanding global platforms monitor hate speech, fake news, and other “unlawful content” and proactively remove them quickly – or face stiff penalties.
3. The User Liability Approach means national laws or regulations that make individual social media users liable for all content they originate and/or share on platforms.
German experience
Germany’s Network Enforcement Act (popularly known as NetzDG) is an example of a platform liability law. In full force from 1 January, 2018, it applies to internet platforms with over two million users (which include Facebook, Twitter, Google, YouTube, Snapchat, and Instagram, even though it has excluded LinkedIn, Xing, and WhatsApp). Companies must promptly remove “illegal content”, as defined in 22 provisions (ranging from insult of public office to actual threats of violence) within a tight time window. Failure can lead to heavy penalties of up to 50 million Euros.
NetzDG has prompted internet platforms to set up large teams of content monitors within Germany (Facebook has over 1,000). With platforms erring on the side of caution, it soon led to some lawful content also being blocked.
As the advocacy group Human Rights Watch noted with concern in February, “the law is fundamentally flawed: It is vague, overbroad, and turns private companies into overzealous censors to avoid steep fines, leaving users with no judicial oversight or right to appeal. The law fails to provide either judicial oversight or a judicial remedy should a cautious corporate decision violate a person’s right to speak or access information”.
Meeting parliamentarians and senior officials during a recent visit to Germany, I heard how the well-meant NetzDG law is having unintended consequences: companies like Facebook have been taking down content excessively, affecting freedom of expression online. Among legitimate content blocked are posts by a leader of the Alternative for Germany party, a satire magazine and political street artist.
Even as key political parties in Germany advocate a review and possible revision of the new law, it is being cited as a model by countries considering similar platform liability laws (e.g. Singapore, Philippines, Russia, Venezuela, and Kenya). If this approach is problematic in a liberal democracy like Germany, imagine the scope for its abuse in illiberal political systems.
Over-cautious companies
Precisely this point has recently been highlighted by David Kaye, a professor at the University of California Irvine School of Law and the UN Special Rapporteur on the right to freedom of expression.
In his June, 2018 report to the UN Human Rights Council about online content regulation, David Kaye cautioned against the criminalising of online criticism of governments, religion, or other public institutions.
He also expressed concerns about some recent national laws making global social media companies responsible, at the risk of steep financial penalties, to assess what is illegal online, without the kind of public accountability that such decisions require (e.g. judicial oversight).
He wrote in a recent op-ed: “The current situation is untenable for countless societies and individuals worldwide. As governments propose new laws, (social media) companies will overcompensate and limit the space for debate, art, politics, and other kinds of expression. The companies will hire more people with language, political, and cultural expertise to moderate content globally, but the sites will still be platforms run by well-meaning people who are nonetheless detached from the lived experiences of those whom they are regulating.”
Making individual social media users responsible is also prone to political and bureaucratic misuse. Examples from Asia include Myanmar’s Telecom Law of 2013 (section 66) and Bangladesh’s ICT Act (section 57). Under these, citizens criticising the military (in Myanmar) and ruling party (in Bangladesh) have been jailed – making them political prisoners.
In a case that has received global attention and condemnation, renowned Bangladeshi photojournalist Shahidul Alam has been jailed since August for talking to Al Jazeera TV and for Facebook Live reporting on student unrest. His charges under the ICT Act include “spreading propaganda and false information against the government”.
During the past three years, at least two countries – India and Malaysia – have walked back from legislative overreach on criminalising individual social media communications.
A closer look at these experiences – in the next column – is both timely and instructive for informing Sri Lanka’s discourse on regulating social media.
(Science writer Nalaka Gunawardene has been chronicling and critiquing information technologies for over 25 years. He tweets from @NalakaG)
Blurbs:
Individuals, who are unaffiliated with any political party, trade union, or even civil society group, self-mobilise around a common concern. These alliances maybe fleeting, but they sometimes get themselves heard
Whether or not Sri Lanka needs to regulate its citizens using social media, and if so in what manner, requires the widest possible public debate involving all stakeholders. The executive branch of government and the defence establishment should NOT be deciding unilaterally on this
With millions of new content being posted 24x7 in hundreds of languages and using text, audio, video, and multimedia formats, the sheer volume and diversity make it very hard to monitor everything
----------------
A demonstration apparently devoid of political party involvement was held at Colombo’s Galle Face Green on 24 October. It involved an estimated 1,500 people or so coming together to demand a wage hike for plantation estate workers to Rs. 1,000 per day.
The demonstration was joined by some plantation workers from the upcountry areas, plus many of their children working in Colombo.
As journalist and social media personality Arun Arokianathan, who shared images and videos live from the event, noted in a tweet: “Power of social media once again proven...Hundreds of youth gathered at Galle Face after being invited through Facebook & WhatsApp to show their solidarity with plantation workers.”
This reminded me of another gathering at the same venue in March, 2015. On that occasion, a few hundred motorcyclists – who did not know each other – came together to demand the removal of a ban on full-face helmets (cyclists wanted to keep using them for added safety, but the Police wanted it outlawed for security reasons). The rapid mobilisation of demonstrators was through a simple Facebook page.
In the social media age, such citizen self-mobilisation is increasingly common. Often, individuals who are unaffiliated with any political party, trade union, or even civil society group, self-mobilise around a common concern. These alliances maybe fleeting, but they sometimes get themselves heard – or at least up their “nuisance factor” just enough for policymakers to take note.
More than a decade after the emergence of global social media platforms, this phenomenon still surprises – and even irritates – those in our government, corporates, and even organised civil society.
However, it provides further evidence for the growing societal impacts of social media – both as a platform for free expression, and as a networking facility that enables freedom of assembly.
Conversely, these very factors worry traditional centres of power and authority – leading to renewed calls for “regulating social media”.
Regulatory options
As I noted in the last column, whether or not Sri Lanka needs to regulate its citizens using social media, and if so in what manner, requires the widest possible public debate involving all stakeholders. The executive branch of government and the defence establishment should NOT be deciding unilaterally on this.
The ideal scenario is where social media platform administrators and users jointly self-regulate. Most key platforms have developed their own community standards for this purpose, but monitoring for compliance is patchy and imperfect.
With millions of new content being posted 24x7 in hundreds of languages and using text, audio, video, and multimedia formats, the sheer volume and diversity make it very hard to monitor everything. Even with automated software programmes (algorithms) as the first line of scrutiny augmented by human content reviewers, the systems are far from failsafe. Harmful or illegal content can slip through both levels, while legitimate content can sometimes be mistakenly flagged or taken down.
This reality has led a growing number of states to come out with their own regulatory responses. These broadly fall into three categories:
1. Outright blocking of global social media platforms – as is done in countries like China, Iran, and North Korea. This “brute force” option excludes the good and the bad of platforms, and violates people’s rights to know and to communicate (which authoritarian regimes don’t respect).
2. The Platform Liability Approach means national laws are passed demanding global platforms monitor hate speech, fake news, and other “unlawful content” and proactively remove them quickly – or face stiff penalties.
3. The User Liability Approach means national laws or regulations that make individual social media users liable for all content they originate and/or share on platforms.
German experience
Germany’s Network Enforcement Act (popularly known as NetzDG) is an example of a platform liability law. In full force from 1 January, 2018, it applies to internet platforms with over two million users (which include Facebook, Twitter, Google, YouTube, Snapchat, and Instagram, even though it has excluded LinkedIn, Xing, and WhatsApp). Companies must promptly remove “illegal content”, as defined in 22 provisions (ranging from insult of public office to actual threats of violence) within a tight time window. Failure can lead to heavy penalties of up to 50 million Euros.
NetzDG has prompted internet platforms to set up large teams of content monitors within Germany (Facebook has over 1,000). With platforms erring on the side of caution, it soon led to some lawful content also being blocked.
As the advocacy group Human Rights Watch noted with concern in February, “the law is fundamentally flawed: It is vague, overbroad, and turns private companies into overzealous censors to avoid steep fines, leaving users with no judicial oversight or right to appeal. The law fails to provide either judicial oversight or a judicial remedy should a cautious corporate decision violate a person’s right to speak or access information”.
Meeting parliamentarians and senior officials during a recent visit to Germany, I heard how the well-meant NetzDG law is having unintended consequences: companies like Facebook have been taking down content excessively, affecting freedom of expression online. Among legitimate content blocked are posts by a leader of the Alternative for Germany party, a satire magazine and political street artist.
Even as key political parties in Germany advocate a review and possible revision of the new law, it is being cited as a model by countries considering similar platform liability laws (e.g. Singapore, Philippines, Russia, Venezuela, and Kenya). If this approach is problematic in a liberal democracy like Germany, imagine the scope for its abuse in illiberal political systems.
Over-cautious companies
Precisely this point has recently been highlighted by David Kaye, a professor at the University of California Irvine School of Law and the UN Special Rapporteur on the right to freedom of expression.
In his June, 2018 report to the UN Human Rights Council about online content regulation, David Kaye cautioned against the criminalising of online criticism of governments, religion, or other public institutions.
He also expressed concerns about some recent national laws making global social media companies responsible, at the risk of steep financial penalties, to assess what is illegal online, without the kind of public accountability that such decisions require (e.g. judicial oversight).
He wrote in a recent op-ed: “The current situation is untenable for countless societies and individuals worldwide. As governments propose new laws, (social media) companies will overcompensate and limit the space for debate, art, politics, and other kinds of expression. The companies will hire more people with language, political, and cultural expertise to moderate content globally, but the sites will still be platforms run by well-meaning people who are nonetheless detached from the lived experiences of those whom they are regulating.”
Making individual social media users responsible is also prone to political and bureaucratic misuse. Examples from Asia include Myanmar’s Telecom Law of 2013 (section 66) and Bangladesh’s ICT Act (section 57). Under these, citizens criticising the military (in Myanmar) and ruling party (in Bangladesh) have been jailed – making them political prisoners.
In a case that has received global attention and condemnation, renowned Bangladeshi photojournalist Shahidul Alam has been jailed since August for talking to Al Jazeera TV and for Facebook Live reporting on student unrest. His charges under the ICT Act include “spreading propaganda and false information against the government”.
During the past three years, at least two countries – India and Malaysia – have walked back from legislative overreach on criminalising individual social media communications.
A closer look at these experiences – in the next column – is both timely and instructive for informing Sri Lanka’s discourse on regulating social media.
(Science writer Nalaka Gunawardene has been chronicling and critiquing information technologies for over 25 years. He tweets from @NalakaG)