Big Tech and Horizontality (Part I): Lessons from America


About the Author: Aniket Aggarwal is a commercial litigator and technology lawyer practicing in Delhi, India. His practice and research primarily revolve around matters arising out of contracts, misuse of technology, and debts gone bad. He loves reading mythology and listening to jazz.


Governments around the world are encircling the ubiquity of big tech companies. Having proposed sweeping legislation (Digital Services Act and Digital Markets Act) to regulate conduct on the internet, Europe leads as the top tech regulator. Similar norms are also being blueprinted in the United States and China, actively cutting big tech down to size. India too introduced heavy-handed guidelines to regulate social and digital media. The global crackdown on the technology industry does not stem from a singular contention; in fact, the issues awaiting clarification are as diverse as the jurisdictions from where they spring. In addition to promoting regulation in fairly commercial domains, such as competition and taxation, the behavior of internet platforms has, insidiously but brazenly, begun to encroach upon individual rights as well.


Big tech’s power over speech and privacy on the internet—which I feel, remains overstated and underrated—was recently scoped by the apex judiciaries in India and the US. While Twitter’s capacity to cut off speech on its platform was excoriated by the US Supreme Court in Biden v. Knight Institute, the invasiveness of WhatsApp’s updated take-it-or-leave-it privacy conditions was subject to opprobrium by the Supreme Court of India. Whether we weigh the free speech fallout of Twitter’s behaviour or the privacy implications of WhatsApp’s, a common thread of constitutional inquiry needles through them: are individual freedoms invokable in private disputes? More specifically, can tech platforms be regulated with the same constitutional standards that bind state action? In exploring these questions, I underscore the concurrence in Biden v. Knight Institute and chart related Indian jurisprudence in a bid to unearth the juridical possibility for enjoining WhatsApp’s direct adherence to privacy under the Indian Constitution.


[I] INDIVIDUAL FREEDOMS AND HORIZONTALITY


That each person has certain inalienable rights is universally unanimous. These rights, termed ‘fundamental freedoms’ by the 1948 Human Rights Declaration, flow from the inherent dignity of each individual and are recognised by instruments such as the Indian Constitution (Part III) and the US Bill of Rights. Despite their gravity, classical constitutional systems guarantee their enforcement only against conduct of the government and its branches, not in private disputes against other citizens (see Chugh). This protection against the state and its arms is termed as being ‘vertical’ in nature, making the question we seek to address one of ‘horizontality’. Indeed, the quandary of applying constitutional freedoms to private law, i.e., their horizontal application, is not res integra and has been a matter of much deliberation.


Common law countries have an analogous framework to examine whether and how constitutional requirements bind private parties. Owing to express language in the grundnorm, certain crucial rights unquestionably apply against private entities, such as the rights against untouchability (Article 17) and forced labour (Article 23) in India, as also the right against slavery and involuntary servitude in the US (Thirteenth Amendment). Otherwise, individual freedoms find enforcement in private disputes in two primary ways:


First, by modification or pronouncement of law in tune with constitutional freedoms, for instance, in New York Times v. Sullivan and Rajagopal v. Tamil Nadu, the Supreme Courts of America and India respectively restricted the invocation of defamation law to expand and give effect to the petitioner’s right of speech and expression. Such horizontality is indirect, for the judiciary finds issue not with the conduct of a private party, but with the law that governs it, which is then eclipsed. Another example is the case of Vishaka v. Rajasthan, where the absence of a workplace sexual harassment law was seen as a violation of the petitioner’s ‘golden triangle’ rights under the Indian Constitution (Articles 14, 19 and 21). The apex court accordingly framed guidelines to stand as surrogate until an exhaustive legislation was enacted.


Second, by overlooking the public/private distinction through an interpretation of the ‘state action’ doctrine, whereby private actors are regulated at par with the state. The basis being either:



  • the ‘functional’ test, as in Marsh v. Alabama (“public function [...] is subject to state regulation”) and in Zee Telefilms v. India (“when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution”).


Even though a comprehensive privacy regime, as is already in the works, would be requisite for determining precisely what and how personal information is to be protected, petitioning the constitutional courts for that, I would submit, is overdue at best and at worst, entails judicial overreach. Formulation of such a regime, as already noted in Puttaswamy v. India (infra), is a complex exercise best left to the legislature. Therefore, the cardinal contention in adjudication for subjecting WhatsApp to constitutional standards in India would have to revolve around interpretation of the state action doctrine towards the discovery of public duty and the award of mandamus. In that, because of comparability in time, substance, and context, it is helpful to take cues from US Supreme Court Justice Clarence Thomas’ concurrence in Biden v. Knight Institute (supra).


[II] TRUMP, TWITTER, AND FREE SPEECH


When Donald Trump, the then President of the US, blocked a few users from his Twitter account in 2018, the Second Circuit Court of Appeals in Knight Institute v. Trump found him liable for excluding free speech under the First Amendment. Relying on Davison v. Randall (supra), the appellate court viewed his account as a public forum and declared his conduct unconstitutional. Later in January 2021, Twitter permanently suspended Trump from its platform and in light of his Presidency’s closure, Biden v. Knight Institute (supra) overturned the earlier decision against him. Twitter’s ban continued. In a concurrence, Thomas SCJ raised pressing concerns along two broad premises:


First, in lieu of Twitter’s “unrestricted authority to do away with” Trump’s account “at any time for any or no reason,” it was odd that it qualified as a public forum. Since the space was open to the unbridled control of Twitter Inc., a private party, it could not be construed as being under governmental control. Hence, it should not have been adjudged as public and responsible for upholding constitutional rights. As a corollary, if Trump violated the First Amendment by barring a few users, Twitter’s suspension of his account, that effectively barred all users from interacting with him, surely chilled free speech on a far greater scale. In essence, an inverse interpretation of the state action doctrine was put forth: if fundamental rights are infringed in spaces beyond government control, would the constitution not come to the rescue?


Second, since Twitter and other social media platforms ‘carry’ information between users and hold themselves out to the public for that purpose, they ought to be construed as “common carriers” or “public accommodations” under common law, constrained to serve all comers without discrimination. Noting that some scholars suggest “market power [as] a predicate” for common carriage, Thomas SCJ felt there was a fair ground for regulating digital platforms at this touchstone as they advertise themselves as focussed on distributing the speech of the broad public en toto. These principles are recognised in India too, for instance, through non-discrimination clauses in its telecom licenses and as a facet of equality under Article 15(2). Common carriers (like telecom, telegraph, buses, and railways), as well as public accommodations (like cinemas, restaurants, hotels, and parks), are designated as such if they are—irrespective of having private owners—offered to the public in general, and on account of their designation, they are liable to not discriminate. This duty to not exclude makes for a compelling argument against any arbitrary or disproportionate suspension from a digital platform (also see Post).


While the rudiment of the first of these perceptions is dissected ahead, I do not dwell much upon the second. As far as privacy is concerned, only an incidental duty is cast by common carriage common law, that is, to not disclose information to those not “designated by the sender.” Applied to the digital world, this creates an obligation of secrecy that squarely proscribes unscrupulous sharing of data with third parties; however, in event of any breach thereof, at most the remedy would lie in an ex post suit for recovery of damages (see Cocke v. Western Union). Therefore, in context of WhatsApp’s shortcomings in user privacy, where a writ would be preferable relief, this line of reasoning appears nugatory. It takes away from the exigence of correcting a constitutional wrong, relegating the malfeasance to an action in tort instead. That said, there is an aspect of constitutional and instant relevance in common carriage law—that of the nature of ‘public interest’ in (and thereby, state regulation of) private business. The same is brought up ahead, in application of the state action doctrine to WhatsApp.


It is in this backdrop that I venture to highlight WhatsApp’s or more accurately, its parent company, Facebook’s cavalier attitude towards its users’ privacy, and assess their amenability to writ jurisdiction and constitutional scrutiny for horizontal privacy violations in India.