Facebook's bias could land it in endless litigations around the world

Recent reports of Facebook’s bias against conservative news stories enlisted on its ‘trending list’ created a huge outcry online. The Indian equivalent of such a situation would be Facebook being found to be biased against one political party, suppressing news articles relating to it, while promoting stories of the opposing political party.

By Asheeta Regidi

Recent reports of Facebook’s bias against conservative news stories enlisted on its ‘trending list’ created a huge outcry online. The Indian equivalent of such a situation would be Facebook being found to be biased against one political party, suppressing news articles relating to it, while promoting stories of the opposing political party. If these allegations are true, then Facebook will lose its immunity as an ‘intermediary’ under the various cyber laws, and can open it up to litigations around the world from affected entities.

Intermediary immunity isn’t unconditional

The law on intermediaries under Indian laws can be found in the Information Technology Act, 2000 (the IT Act). Intermediaries host and provide information provided by third parties. This includes websites such as Facebook, search engines such as Google and even online marketplaces such as Amazon.

Some of the information on these sites may be offensive to the recipients of this information. The number of third party entities who upload information on these websites can run into millions. This makes it impossible for an intermediary to monitor all content made available by it. As a result, intermediaries are protected from liability for any offensive or illegal content that may be uploaded onto their site. Effectively, if a reader is unhappy with any content he reads on his Facebook homepage, he cannot hold Facebook responsible for it. His only remedy is to sue the person who uploaded the content onto Facebook in the first place.

Of course, the immunity granted to intermediaries is not without the imposition of certain responsibilities. Intermediaries are immune only so long as they play absolutely no role regarding the content available on it. As per Section 79 of the IT Act, the intermediary must not:

initiate the transmission of the information, or
select the receiver of the transmission, or
select or modify the information contained in the transmission.

As soon as the intermediary performs any one of these steps, it loses its immunity. This is coupled with several due diligence requirements imposed under the Information Technology (Intermediaries Guidelines) Rules, 2011 (the Intermediary Rules).

The basis for intermediary immunity is similar under various legislations around the world. For example, Article 12 of the European Union’s Directive on E-Commerce similarly protects an intermediary only so long as it does not select, modify or initiate the transmission.

Allegations of bias clearly lead to loss of immunity as an intermediary

The allegations of bias relate to Facebook’s ‘trending news’ section. This involves a process of selection of popular new stories using an algorithm, a review of the selected stories and then publishing on the ‘trending news’ section. So long as the selection is completely unbiased, Facebook’s immunity remains. The allegations of bias, however, are that Facebook suppresses stories which are ‘conservative’ in their view, such as stories about the right-wing CPAC gathering, Mitt Romney, and Rand Paul. Yet another report alleged that Facebook censored pro-Trump news and negative Hilary news. This is clear case of ‘selecting and modifying the information contained in the transmission’ by Facebook, as prohibited under Section 79 of the IT Act.

Reports also allege that Facebook restricted the access of users to about 30,322 emails and email attachments sent and received by Hillary Clinton during her tenure as secretary of state. These are instances of ‘selecting the receiver of the transmission’. Another accusation is that Facebook artificially injecting stories which were not popular into this section. This is a case of ‘initiating transmission’. If the allegations are true, therefore, it is clear that Facebook is playing a major role regarding the content being made available to its users. As a result, it will lose its immunity as an intermediary.

Intermediary’s right of censorship

Under the Intermediary Rules, an intermediary is imposed with certain due diligence requirements. An intermediary can remove certain categories of harmful content, such as content which is offensive, defamatory, illegal, harmful to minors, or which threatens the security of the nation, and so on. This is why Facebook is justified in removing illegal content from the internet on its own account. However, the allegations here involve the removal of political content. Preventing or restricting the access of such political stories can only be justified if it falls under one of the heads, such as a threat to national security. In the absence of this, there can be no justification of a political bias on the part of Facebook.

The dangers of political censorship

The role social media plays in artificially influencing political viewpoints, particularly around the time of elections, has come into notice for quite some time. It is normal for a person to be biased about their political viewpoints. However, when a company like Facebook, which has the power to shape the views of millions of its users, abuses this power, then there is a lot to worry about.

On its part, Facebook has completely denied all allegations of bias. It insists that there are rigorous guidelines in place to ensure neutrality. It also insists that the reviewers play a very limited role, such as putting similar news stories selected by the algorithm under one head. It is possible that the bias has crept in because of the individual bias of the reviewers. However, Facebook cannot be irresponsible about the enforcement of its guidelines. Nothing short of such rigorous guidelines will continue to protect Facebook as an intermediary.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.

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