Somya Jha & Kuldeep Singh Yadav*
The Digital Public Square: Platforms as Sites of Public Discourse
The Digital Public Square is a platform space for people to engage in public discussions. A space created by platforms where public discourse takes place is the Digital Public Square. India’s debate arena has increasingly come to be dominated by some foreign and for-profit companies. Hundreds of millions of Indians are mobilising through WhatsApp; social networks are creating election narratives on X and Instagram, and many young Indians aren’t getting their news from TV these days, but rather from YouTube. These algorithm-generated feeds, which are no longer physical spaces, have replaced the maidan, the press conference. These are not the spaces of Indian law anymore and are algorithmically curated spaces run by a private entity.
This has helped to establish a familiar, but doctrinally problematic metaphor: The platform as the new “public square.” The metaphor brings into focus the scope and importance of these services to democratic engagement; however, it conceals another undeniable truth – platforms are still private businesses, which submit to shareholders and each shareholder’s conditions of service, not to citizens or the constitution. One-sided decisions on content, such as suspensions, shadow-banning, and de-amplification, are made without justifications or a hearing. If a government body comes to a similar conclusion, it would be under contract to be held accountable for any infringement of Articles 14, 19 and 21, and the “aggrieved user” would have established a grievance process with it.
This one-sidedness does, however, raise a true analytical question: in order to fulfil the requirements of the constitutional processes, as enshrined in Part III of the Magna Carta (transparency, equality, procedural fairness, proportionality), should a law require a platform that takes up the role of quasi-public relations? To solve this question, the doctrinal boundaries of horizontal rights in India, the lessons learnt from comparative regulation and the feasible design for a statute are discussed.
State action, Horizontal Rights, and the limits of Article 19
Indian Constitution design is basically a vertical design; according to it, fundamental rights limit ‘the State’, as laid out in Article 12 and not the authority of any private entity. In Zee Telefilms Ltd v Union of India, the Supreme Court previously held that even the unincorporated body which runs the world’s most popular sport, BCCI, would not be within the ambit of Article 12, given a lack of deep and pervasive governmental interference over it and the absence of any statutory origin for its existence or their not being paid for by the Government. Social platforms are not doing much better than BCCI is; they have no Government side with them, and they are not a statutory monopoly and are most often registered abroad. The difficulty with expanding Part III then lies with the doctrine of the instrumentality of the State.
The problem with outside platforms are they would be covered by the doctrine of the instrumentality of the State. But the Court hasn’t completely disregarded horizontal effect. In the Justice K.S. Puttaswamy v Union of India case, Justice K.S. Puttaswamy quoted from a few judgments that advanced an argument for protection of informational privacy against the private data processor, which led to a request for a legislative act of protection, as opposed to constitutional protection. Instead, the Court had concerns about the ‘uncontrolled power of takedown’ for intermediaries under Section 79 of the Information Technology Act, 2000, which compelled them to obtain safe harbour, which again was not a constitutional power, but only a statutory one.
Two recent cases will elucidate this. In Kunal Kamra v Union of India, the Bombay High Court affirmed the government’s ‘fact-check unit’ provision of 2023, but noted that no protection was provided in this instance except a right to appeal, and the committee set up to hear the appeal was of the same executive body that pillars the content. A year later, in X Corp v Union of India, the Karnataka High Court upheld the government’s “Sahyog” takedown portal in section 79(3)(b), and also found that a foreign platform cannot invoke Article 19(1)(a). The latter finding has resulted in an appeal.
Taken together, these decisions make clear that without a clear source of protection, it is the courts that provide that safeguard and, yet there doesn’t seem to be any “ordinary” or “regular” governance framework for affording protection through the platforms. Put together, the five decisions suggest that the institution that the Court prefers to rely on for a check and balance on fundamental interests is the legislature rather than a broader interpretation of Article 12 as it presently stands. Such a challenge of platforms can be made at a constitutional level, but what’s actually feasible is a constitutionalisation, not by adjudication, but rather through statute, which is the process of translating constitutional values into statutory requirements.
Comparative Models: Lessons Without Transplantation
This transposition has been tried in other jurisdictions. As the European Union’s Digital Services Act does not prescribe any specific content that shall be removed, it lays out rules on how such content gets removed – a so-called “statement of reasons” when it’s taken down, an internal appeal and access to a certified dispute resolution body in an out-of-court setting. Under the supervision of the Commission, VLOPs (those with over 45 million users per month across the EU) will be given new obligations, such as conducting assessments of system risks, an independent audit of algorithms and ensuring transparency about them.
The problem is that, in contrast, Brazil’s Marco Civil da Internet follows a more judicial road, principle-wise leaving it to a specific court order to trigger platform liability, and ensuring that the judiciary acts as a gatekeeper. The Online Safety Act sets out a quick path to a judicial or platform appeal, and an administrative regulator (eSafety Commissioner) who regulates removal notices and code of conduct issues.
In these, there is no model that constitutes the platform per se. They share the agenda of not giving answers to the question of “Is the platform the State?” but to introduce specific requirements, including “reasons” criteria, appeals, “audit” or “judicial” gatekeeping, to inculcate constitutional order within private governance. There is no perfect institutional form to resemble, only this institutional shape.
Towards A Calibrated Indian Framework: Transparency, Due Process and Proportionality by Statute
India has some initial learnings from such an architecture. Section 79 of the Information Technology Act, 2000 lays down the principles of safe harbour based on due diligence and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended), provide for a Resident Grievance Officer and, from 2022, a Grievance Appellate Committee formed by the government to receive appeals. The problem with the institution is that the Committee is made up only of executive nominees, holding investigations into cases of speech offences, which they then have to report to the same government whose edicts they may be challenging.
A more robust structure would align with Puttaswamy’s test of proportionality: a legitimate aim, suitability, necessity and procedural safeguards, i.e., statutory obligations. Four steps to establish a more durable framework that aligns with Puttaswamy’s test of proportionality: a legitimate aim, suitability, necessity, and procedural safeguards, corresponding to the statutory duties. First, each account or action of the contents must be accompanied by a specific statement of reasons that has been published and linked to a specific policy clause. Second, obligations should be tiered according to measured thresholds for using super-meters, by counting Indian customers, instead of requiring compliance costs on smaller platforms. Third and most important, such an appeal needs to be heard before an independent statutory body, and not an executive committee, of retired judges and technical members under fixed timelines that the government cannot remove on flimsy grounds, in response to Kunal Kamra’s observation that the mere existence of an appeal without an independent body defeats natural justice. Fourth, Independent auditors, in a manner to be decided, should be requested to conduct periodic publishable algorithmic and moderation audits of influential platforms, which would feed into a public and India-centric transparency register.
With Zee Telefilms, Puttaswamy and Shreya Singhal as its reviewers, the Supreme Court’s decision has been weighted in favour of bringing protection of fundamental values of the Constitution in a manner which can also be legislated, which is what this framework does, with no need to declare platforms as “State” under Article 12.
Conclusion
Yet, Zee Telefilms eliminates the possibility of a direct and unobstructed determination of “State” in Article 12, at least for now. However, this limit on the doctrine does not resolve the normative question in this piece, which opened with. Even if such a writ petition would not be granted, the values of Articles 14, 19 and 21 do continue to apply to the governance of platforms that facilitate India’s public dialogue. The experience of the EU, Brazil and Australia demonstrates that these values can be realised through well-crafted statutory commitments, which involve a process of reasoned decision, graduated responsibility, third-party appeal and publicity, rather than a resolution of the abstract issue of state action. With X Corp’s case on appeal, and Kunal Kamra having already made it clear that due process has nothing to do with appeal, India has a fighting chance of determining this issue. The real institutional question is not “constitution versus contract,” but how India can create an appellate mechanism accountable to the executive or one that can actually implement constitutional principles into the “mechanics of private governance of public speech”?
* The authors are fourth-year and fifth-year B.A. LL.B. (Hons.) students at National University of Study and Research in Law, Ranchi. They may be contacted at somya.jha@nusrlranchi.ac.in, and kuldeepsingh.yadav@nusrlranchi.ac.in, respectively.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.