Elon Musk’s Twitter: How his free speech argument could play out in India

Musk’s great stress on free speech foretells dissonance in India.

Musk has described himself as a “free speech absolutist”, and made it the core of his agenda for Twitter.

“Free speech”, he said after making the successful bid, “is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated”.

🚀💫♥️ Yesss!!! ♥️💫🚀 pic.twitter.com/0T9HzUHuh6

— Elon Musk (@elonmusk) April 25, 2022

He has expressed frustration that content moderators on Twitter intervene too frequently and with too heavy a hand, and has tweeted that he hoped that “even [his] worst critics remain on Twitter, because that is what free speech means”.

But unlike in the United States, in India, where Twitter is a perpetual battleground of claims and contestation, free speech is not an absolute right. The first amendment in the Constitution in 1951 introduced “reasonable restrictions” on the fundamental right to free speech and expression guaranteed under Article 19(1)(a).

The restrictions were placed in the interest of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

These “reasonable restrictions”, which have subsequently been upheld by the Supreme Court, could potentially fall foul of Musk’s maximalist free speech ideal. The Indian government has repeatedly flagged to social media platforms that the content they host must abide by the laws of the country.

Under Section 69(A) of The Information Technology Act, 2000, the government can issue takedown notices to social media platforms such as Twitter if a user shares content that is restricted under the Constitution, which the companies have to then remove.

This is by law a part of their due diligence process to make sure that they do not lose their status as an ‘intermediary’, a key tenet that has allowed social media platforms to thrive in democracies.

If a social media company loses its ‘intermediary’ status, it would mean that courts can hold it accountable for third-party speech posted on its platform, opening the company up for more litigation.

Hypothetically, should Twitter choose to take a stand against the government’s blocking orders, it could potentially land its India-based chief compliance officer in trouble. Last year, Twitter’s then India head Manish Maheshwari was summoned by the UP Police after a video spreading misinformation went viral on the platform.

The IT Rules announced in February last year require social media platforms to appoint a compliance officer whose responsibility is to make sure that the company is adhering to all the provisions prescribed in the Rules.

In case a company fails to do so, according to the Rules, its chief compliance officer could be held “liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties” — meaning that the person could be potentially jailed if Twitter fails to carry out its due diligence as a social media intermediary.

In August 2021, Twitter told Delhi High Court that it had appointed “permanent people” to the posts of chief compliance officer-cum-resident grievance officer and nodal contact officer in compliance with the IT Rules, 2021.

In July, Twitter had told the court that it had appointed a “contingent worker via a third party contractor” to the post.

Donald Trump’s Twitter account could be restored, giving him back his most powerful megaphone.

After four years of largely accommodating Trump, Facebook, Twitter, Snapchat, Shopify, Twitch, etc. kicked the former US President off their platforms in the aftermath of the January 6, 2021 attack on the Capitol in Washington DC.

It was an overnight reversal of the tech companies’ policy on Trump, and other political leaders, which has largely been one of symbiotic association. In banning him, Twitter clearly responded to growing calls for coercive action against social media companies for having allowed the President to peddle lies and hate on their platforms over the last four years.

In his final hours on Twitter, Trump hit out, not for the first time, at Section 230 of the 1996 Communications Decency Act, which allows Internet platforms to publish and moderate content from third parties without being held legally liable for what they say, and which the President had earlier threatened to repeal, for “banning” free speech.

While Musk has not addressed the question of Trump’s possible return to Twitter — either to his 84.5 million followers on the platform or elsewhere — his repeated statements on free speech have fuelled anticipation on both the right and left of the political divide that the former President may be reinstated, and that he might then use his favourite platform for his widely anticipated bid to win back the White House in 2024.

A sign outside the Twitter headquarters in San Francisco, Monday, April 25, 2022. (AP Photo: Jed Jacobsohn)

After being thrown out of Twitter, Trump tried to get his own social media startup, Truth Social, to be an alternative platform, but the effort largely failed. For the record, Trump has said in an interview that he probably would not get back on Twitter.

Musk has suggested that Twitter should open-source its algorithm. But that is easier said than done.

In a live broadcast from a TED conference recently, Musk said that Twitter’s algorithm should be based on an open-source model, so that users of the platform are able to see the code by which Twitter determines which tweets are promoted and which are hidden on users’ timelines.

Open-sourcing, he said, would be preferable to “having tweets sort of be mysteriously promoted and demoted with no insight into what’s going on”.

On March 24, Musk ran a Twitter poll asking whether “Twitter algorithm should be open source”, to which 82.7 per cent of the more than 1.1 million votes cast said “yes”.

Twitter algorithm should be open source

— Elon Musk (@elonmusk) March 24, 2022

Making such a change in Twitter’s software would lay bare the role that computer programmes play in policing content posted on the platform. Conservatives in the West have repeatedly complained that Twitter’s algorithm is biased against them, and appreciate Musk’s stated commitment to demonstrate that there is no “behind-the-scenes manipulation” going on.

That said, however, Musk could be oversimplifying the issue — as an article in ‘The Washington Post’ said, “As social media companies have grown, the software that drives their recommendation engines have grown so sprawling and complex that analyzing it would require access to a fire hose of data so immense that most people wouldn’t even have access to a computer powerful enough to analyze it.”

The article quoted Nick Seaver, who researches the algorithms that drive recommendation engines at Tufts University, as saying, “the algorithm is not one thing”, and that “the people inside Twitter want to understand how their algorithm works, too”.

According to Seaver, as quoted in ‘The Post’, the systems are “so complex that tech companies themselves often find it difficult to know why their software showed a user one post over another”.

Musk wants to ‘defeat the bots’. Most would agree that’s a good thing.

Before he offered to buy Twitter, Musk had expressed scepticism about how relevant the social media platform, in the way that it is currently run, was.

On April 9, after a list of “Top 10 most followed Twitter accounts” was published on Twitter, Musk tweeted, “Most of these ‘top’ accounts tweet rarely and post very little content. Is Twitter dying?”

Most of these “top” accounts tweet rarely and post very little content.

Is Twitter dying? https://t.co/lj9rRXfDHE

— Elon Musk (@elonmusk) April 9, 2022

The list had former US President Barack Obama on top with 131.4 million followers, followed by pop stars Justin Bieber (114.3 million), Katy Perry (108.8 million), and Rihanna (105.9 million). But it also had Musk himself, as well as Prime Minister Modi, who uses his personal and official Twitter accounts to great effect.

On April 22, Musk tweeted, “If our twitter bid succeeds, we will defeat the spam bots or die trying!” He has since said that he wants to make Twitter “better than ever” by “defeating the spam bots, and authenticating all humans”.

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