From Intermediaries To Gatekeepers: A Constitutional Inquiry Into Content Moderation And Free Speech Online

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Aditya Gurjar, B.A.LL.B. (Hons.), Trinity Institute of Professional Studies, Dwarka

ABSTRACT

The dynamism of digital communication has propelled social media platforms from mere intermediaries to a powerful locus of control over online speech. In this regard, this research paper aims to explore the constitutional challenges posed by content moderation regimes of dominant tech giants, in relation to the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution, through the use of algorithmic filtration, community guidelines and arbitrary takedown regimes, thereby examining whether such private technology firms exercise quasi-regulatory power over the digital public discourse. Further, it probes the tension between platform governance and constitutional morality, and whether existing statutory framework, especially the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, addresses the issues of transparency, accountability, and arbitrariness in content moderation.

The paper will further investigate the applicability of constitutional principles to private actors who perform public functions by referring to various judicial pronouncements and comparative legal analysis. Moreover, it analyzes the issues of misinformation, hate speech and other harmful content; and the risk of over-censorship and its likely chilling effect on free expression; situated within the larger framework of constitutional governance by pointing out the need for balanced regulations which protects both the individual rights and the platform's responsibility. Hence the paper would contend for the need for a rights-based regulatory regime that embed constitutional values within the structure of digital governance in a way to bring social media platforms in sync with constitutional ethos, fairness, and free speech.

Keywords: Content Moderation, Freedom of Speech and Expression, Constitutional Morality, Social Media Platforms, Digital Governance

809. FROM INTERMEDIARIES TO GATEKEEPERS- A CONSTITUTIONAL INQUIRY INTO CONTENT MODERATION

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