Legality of Social Media Algorithms: How They Shape our Minds and Democracy​​

Madhura Bhandarkar
ILS Law College, Pune, India.

Volume IV, Issue I, 2021

You can sway a thousand men by appealing to their prejudices quicker than you can convince one man by logic.”

– Robert A. Heinlein 

This quote perfectly captures the essence of the role played by social media companies in polarization of public opinion and spreading of fake news. With information overload, people are grateful to the social media companies for telling them what to read next. This is done by creating a personalized wall of news-feed based on their likes and dislikes and it is known as “Filter Bubbles”. It curates a news-feed of each individual in such a way that people’s virtual exposure is limited to their community of interest. Through this paper, the author aims to test the legality of this technology when applied in the political context, within the Indian legal framework. Firstly, the technology will be tested against the legal theory of “Marketplace of Ideas” which advocates free flow of ideas and curtails censorship. Courts often rely on this theory to uphold freedom of speech and expression and refuse to regulate fake news on social media. Additionally, the author will also test the Constitutionality of Filter Bubbles under Article 19 and lastly, the position of intermediary liability under the Information Technology (Amendment) Act, 2008 will be discussed keeping in mind the use of Filter Bubbles by the intermediaries. In concluding the paper, the author will demonstrate how the Filter Bubbles invalidate the theory of the Marketplace of Ideas; how it violates an individual’s right to know, which is an integral part of freedom of speech and expression; and lastly, how the use of Filter Bubbles make the safe harbour provisions for intermediary liability inapplicable.