THE AUTHOR:
Aamir Khan Wali, Advocate-at-Law, Corporate Attorney and Legal Strategist
The Governance Question of Our Time
There is a paradox at the core of the digital age. Speech has never been more abundant, instantaneous, or globally networked. Yet democratic discourse has rarely felt so fragile. Elections are influenced by coordinated online campaigns, as documented in the U.S. Senate Intelligence Committee Report on Russian Active Measures and subsequent investigations into the Cambridge Analytica–Facebook data scandal. Public health messaging has been destabilised by viral falsehoods, prompting the World Health Organization to characterise COVID-19 misinformation as a global “infodemic.” Communal and political tensions have been amplified by algorithmic curation systems designed not for deliberative integrity but for engagement optimisation, a phenomenon extensively analysed in research on computational propaganda by the Oxford Internet Institute.
When harm materialises, however, the institutional response remains fragmented. National regulators impose fines. Constitutional courts invalidate vague or disproportionate statutes. Data protection authorities investigate opaque processing architectures. Yet nowhere in the global legal order does there exist a dedicated, specialised, transnational forum empowered to adjudicate systemic informational harm that transcends borders. While international adjudicatory mechanisms exist for trade disputes under the World Trade Organization’s Dispute Settlement Understanding, for investor–state arbitration through the International Centre for Settlement of Investment Disputes (“ICSID”), and for inter-state disputes before the International Court of Justice (“ICJ”), no comparable treaty-based body governs systemic digital informational conflict.
This absence is not rhetorical. It is structural. It is fast becoming the defining governance gap of the twenty-first century.
Berlin: A Symptom of Institutional Absence
In March 2025, Berlin hosted a civic initiative styled as a “Social Media Tribunal,” convened under the banner of The Court of the Citizens of the World, a civil society platform exploring accountability for digital power. Scholars and technologists symbolically placed digital platform power in the dock. It had no jurisdiction, no coercive authority, no capacity to issue binding writs. But its symbolism was unmistakable.
The proceedings opened with a statement by Nobel Peace Prize laureate Maria Ressa, whose experience confronting online disinformation lent moral gravity to the initiative. The Tribunal ultimately found “reasonable grounds to believe” that major social media platforms were not complying with their own publicly declared commitments to international human rights principles. It concluded that this failure was not incidental, but structurally linked to profit-driven design choices. According to its findings, platforms were “knowingly and intentionally” permitting their services to be exploited by malicious actors—facilitating cybercrime, enabling election interference through the dissemination of false or misleading information, and in certain contexts contributing to the conditions under which atrocity crimes could occur.
The Tribunal was structured to mirror formal adjudicative processes. It featured prosecution and defence counsel, and a panel of distinguished judges who reviewed documentary evidence and extensive testimony. The bench included the Hon. Shira A. Scheindlin, former United States District Judge, Herta Däubler-Gmelin, former German Federal Minister of Justice and Dr. Karnnika A. Seth, cyberlaw expert practising before the Supreme Court of India.
Over the course of the hearings, the Tribunal examined testimony from twenty-four witnesses. Survivors of online abuse, family members of victims, cybersecurity experts, and whistleblowers from within the technology sector described patterns of algorithmic amplification, content moderation failures, and structural incentives that privileged engagement over safety.
At the conclusion of its deliberations, the Tribunal recommended that national governments consider legislative measures to address what it characterised as systemic crimes and human rights abuses enabled through digital platforms. It further announced that it would reconvene within a year to assess whether meaningful reforms had been undertaken.
Yet, for all its seriousness and moral force, the Berlin Tribunal remained what it necessarily was: a civic indictment rather than a legally binding judgment. Its findings carried persuasive authority, not enforceable consequences. No sanctions could be imposed. No compliance mechanisms could be triggered. No binding obligations flowed from its determinations.
This is precisely why the Berlin initiative matters. It was not an aberration. It was a symptom. When civil society constructs tribunals in the absence of law, it signals not distrust in legal institutions, but frustration with their inadequacy. The very existence of the Social Media Tribunal revealed the scale of the institutional void.
In other domains of global governance, comparable systemic risks have generated treaty-based adjudicatory frameworks. Trade disputes are channelled through the WTO Dispute Settlement Mechanism. Investor–state conflicts are arbitrated under the ICSID, Inter-state legal controversies are heard before the ICJ.
In the sphere most directly shaping democratic stability—the global information ecosystem—no equivalent, treaty-based adjudicatory mechanism exists. Berlin did not create that forum. It demonstrated, with unmistakable clarity, that the world is searching for one.
Regulating Algorithms with Analog Institutions
Twentieth-century media law was constructed for a world of scarcity and physical infrastructure: limited broadcast spectrum (see, e.g., the regulatory foundations of spectrum allocation under the International Telecommunication Union (“ITU”), identifiable printing presses, and licensed publishers. Regulatory doctrines evolved accordingly—anchored in traceability, editorial accountability, and territorially bounded jurisdiction, reflected in classical broadcasting jurisprudence and licensing regimes.
In the algorithmic age, that architecture has shifted fundamentally. Editorial discretion is increasingly embedded in proprietary code. Ranking systems and recommender engines—now central to the operation of Very Large Online Platforms under frameworks such as the EU’s Digital Services Act (Regulation (EU) 2022/2065)—determine not merely what is published, but what is amplified and prioritised. As Tarleton Gillespie, author of Custodians of the Internet, published by Yale University Press, while emphasizing on platform governance has observed – speech is no longer simply disseminated, in fact it is architected through engagement-optimised design.
This structural transformation has exposed three fractures in the contemporary legal order: territorial limitation, velocity asymmetry, and doctrinal inadequacy. Each reflects the strain of applying analog-era legal instruments—developed for print and broadcast environments—to transnational, algorithmically curated information ecosystems.
Territorial Limitation
The United Kingdom’s Ofcom has been significantly strengthened under the Online Safety Act 2023. Germany’s Netzwerkdurchsetzungsgesetz (“NetzDG”) compels rapid removal of manifestly unlawful content. The European Union’s Digital Services Act (Regulation (EU) 2022/2065) introduces systemic risk frameworks and enhanced supervision of Very Large Online Platforms (“VLOPs”), with enforcement powers partly vested in the European Commission and national Digital Services Coordinators.
These frameworks represent serious regulatory innovation. Yet they remain territorially segmented. The Digital Services Act does not create a standing supranational tribunal dedicated to adjudicating cross-border informational disputes. Ofcom’s jurisdiction remains bounded by UK territory. NetzDG incentivises removal but largely privatises adjudicative decisions within platform moderation systems.
Global platforms operate within a mosaic of regimes, none of which alone possesses comprehensive transnational adjudicatory authority.
The Velocity Gap
Judicial process is deliberately structured around procedural fairness: notice, evidence, adversarial hearing, reasoned judgment—core attributes reflected in comparative due process jurisprudence and Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”). Disinformation, by contrast, spreads at network speed. The “Pizzagate” conspiracy in the United States (as documented in the U.S. Senate Select Committee on Intelligence reports on election interference) and coordinated anti-vaccination narratives during the COVID-19 pandemic achieved global saturation long before courts could meaningfully intervene.
The doctrine of irreparable harm—central to interim injunctive relief in common law jurisdictions, for example, American Cyanamid Co v Ethicon Ltd [1975] AC 396—was never conceived for the instantaneous erosion of public trust in elections or public health. Harm in this domain is epistemic as much as reputational, implicating not only individual rights but the structural integrity of democratic deliberation.
The Doctrinal Void
Traditional speech law centres on individualised injury—defamation, privacy, incitement as cited in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Subramanian Swamy v. Union of India, (2016) 7 SCC 221). Algorithmic disinformation produces collective harm. It corrodes institutional trust and destabilises what may be described as the epistemic commons: the shared factual substrate necessary for democratic deliberation.
In India, the Supreme Court’s landmark decision in Shreya Singhal v. Union of India (2015) 5 SCC 1, struck down Section 66A of the Information Technology Act, 2000 for vagueness and chilling effect, reaffirming the primacy of Article 19(1)(a) of the Constitution of India The judgment is rightly regarded as a constitutional milestone in defence of free speech. Yet it addressed state overreach. It did not supply a doctrinal framework for confronting coordinated, transnational disinformation campaigns amplified through algorithmic architecture.
The law protects speech from excessive regulation. It does not yet adequately address systemic informational manipulation.
Informational Conflict and Diplomatic Recognition
The governance gap is increasingly acknowledged at diplomatic levels. In discussions with policymakers—including exchanges with Her Excellency Ms. Lindy Cameron (British High Commissioner to India) regarding the evolving classification of hybrid threats—it has become evident that state-sponsored disinformation is now understood as an instrument of geopolitical contestation as seen for example in the UK Government’s Integrated Review Refresh 2023 addressing state threats and information operations.
Yet domestic regulators are not structured to arbitrate informational conflict between sovereign states and global corporate platforms. They enforce compliance within national boundaries and they do not function as international arbitral bodies in the manner of treaty-based mechanisms.
This absence is anomalous. Aviation safety is coordinated under the International Civil Aviation Organization (“ICAO”). Maritime navigation is harmonised through the International Maritime Organization (“IMO”). Trade disputes are adjudicated multilaterally under the World Trade Organization (“WTO”) dispute settlement framework.
The global information ecosystem—despite its profound implications for democratic stability—remains institutionally underdeveloped.
The Governance Vacuum Made Visible: The Rajput Case
If one were to search for a single Indian episode that reveals the institutional vacuum in global media governance, the 2020 death of Sushant Singh Rajput would stand as a stark case study as reported in the Indian Media wherein the investigating examined over one thousand social media posts.
On 14 June 2020, Rajput was found dead in Mumbai. The Mumbai Police initially treated the matter as a case of suicide. What followed was not merely media scrutiny—it was media prosecution.
Prime-time debates framed competing theories of abetment, murder, conspiracy, and narcotics networks. Allegations were directed toward Rhea Chakraborty. Hashtags trended globally.
Television visuals were clipped and redistributed across digital platforms where engagement metrics rewarded sensational framing. The investigative process—ordinarily insulated within procedural safeguards under the then Code of Criminal Procedure, 1973, now The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (“BNSS2”)—became entangled in a public adjudicatory theatre.
Central investigative agencies entered the fray: the Central Bureau of Investigation (“CBI”), the Enforcement Directorate (“ED”), and the Narcotics Control Bureau (“NCB”). Each procedural development triggered renewed waves of speculative commentary. The presumption of innocence—central to criminal jurisprudence and recognised as part of Article 21 jurisprudence—competed with nightly verdicts rendered in studios.
Petitions were filed before the Bombay High Court challenging the tenor of media reporting. In Nilesh Navlakha v. Union of India (2020), the Court reaffirmed that freedom of the press under Article 19(1)(a) of the Constitution of India is integral to democratic life, yet not unbounded. Reporting must not prejudice ongoing investigations.
The Court criticised speculative coverage but declined sweeping prior restraint, mindful of the Supreme Court’s reasoning in Sahara India Real Estate Corp. Ltd. v. SEBI (2012) 10 SCC 603, which permits only narrowly tailored postponement orders in exceptional circumstances.
The judicial message was principled and cautious. The structural problem remained unresolved.
Television coverage did not exist in isolation. Digital redistribution multiplied narratives. Accounts beyond Indian territorial reach amplified content. Algorithmic ranking systems determining virality remained opaque and transnational.
The harm was systemic. The remedies were individualised.
Regulatory Fragmentation and Structural Limits
India’s regulatory framework is dispersed. The Press Council of India addresses print ethics but lacks a binding enforcement authority under the Press Council Act, 1978. Broadcasters operate under self-regulatory codes, including those framed by the News Broadcasters & Digital Association (“NBDA”). The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose due diligence obligations on intermediaries under the Information Technology Act, 2000. The Competition Commission of India addresses market dominance under the Competition Act, 2002. Emerging data protection regimes, including the Digital Personal Data Protection Act, 2023, focus on privacy and data processing.
None is designed to assess systemic algorithmic amplification that risks prejudicing justice.
The Rajput episode revealed three structural limits: territorial constraint, evidentiary complexity in algorithmic analysis, and the difficulty of addressing collective epistemic harm within individualised legal frameworks.
Multiple institutions acted—police, central agencies, courts—but no specialised body examined whether systemic amplification compromised investigative fairness.
The Case for an International Media Tribunal: Institutional Realism, Not Utopianism
If the preceding analysis establishes anything, it is this: the absence of a specialised forum is not theoretical—it is operational. Fragmented national responses are inadequate for transnational informational power.
The world has accepted that domains generating systemic cross-border risk require structured adjudication. Global trade disputes are channelled through the WTO. Investor–state conflicts are arbitrated under ICSID. Inter-state legal controversies are heard before the ICJ. Each of these institutions emerged from the recognition that national courts alone could not manage transnational complexity.
The global information ecosystem presents risks no less systemic. Electoral integrity, public health communication, institutional legitimacy, and civic peace are shaped by digital architectures operating beyond territorial boundaries. Yet disputes arising from this ecosystem remain dispersed across domestic courts ill-equipped to address cross-border algorithmic design and amplification.
The proposal for an International Media Tribunal is therefore not utopian. It is institutional realism.
A credible tribunal would require a hybrid, interdisciplinary bench: jurists versed in comparative constitutional and international human rights law, data scientists capable of forensic algorithmic audits, cognitive psychologists specialising in influence dynamics, and media practitioners grounded in professional ethics.
Its jurisdiction must be tiered and focused: an arbitral function resolving state–platform disputes concerning systemic human rights compliance; an investigative mandate examining coordinated transnational disinformation campaigns threatening democratic stability; and an advisory function issuing authoritative guidance on emergent risks such as generative artificial intelligence and synthetic media.
Its normative anchor must lie in established law, particularly the interplay between Articles 19 and 25 of the ICCPR. Such a tribunal would not police opinion. It would safeguard the structural conditions under which democratic expression remains meaningful.
The missing forum is not about censorship. It is about constitutional equilibrium in a transnational digital environment.
The Indian Prototype: A Constitutional Laboratory
If the international vision appears ambitious, India offers a practical constitutional laboratory. Article 19(1)(a) guarantees free speech. Article 21 has evolved to encompass dignity and fair trial rights. Article 323B permits Parliament to establish specialised tribunals.
India has previously recognised that complex harms demand hybrid institutions. The National Green Tribunal addresses environmental degradation through judicial and expert membership.
The Competition Commission of India integrates legal and economic analysis in market regulation.
A carefully designed Media Accountability and Adjudication Tribunal Act (“MAATA”) could establish a domestic prototype empowered to conduct structured algorithmic audits, adjudicate systemic cross-platform harms affecting democratic processes, and develop standards for “freedom of expression by design.”
Such a body would not supplant constitutional courts. It would operate as a specialised fact-finding forum, subject to appellate and constitutional review. In effect, it would provide institutional capacity currently absent: a mechanism capable of examining systemic amplification architectures rather than isolated pieces of content.
If successfully implemented, such a domestic model could serve as proof-of-concept for the broader international vision.
Sovereignty and the Path Forward
The principal objection remains sovereignty. States are cautious about delegating authority over speech governance. Yet sovereignty has long been pooled in response to transnational challenges. Aviation, maritime law, and trade demonstrate that institutional evolution follows structural shifts in power.
A treaty-based coalition of willing states, with a narrowly circumscribed mandate focused on cross-border digital harms, could provide a starting point. Enforcement mechanisms might draw from models such as the General Data Protection Regulation (“GDPR”), leveraging financial penalties enforceable through domestic courts.
The alternative is fragmentation: proliferating national regimes, increased securitisation of information governance, and gradual balkanisation of the internet.
Conclusion: The Forum Remains Missing
The Rajput episode was not merely a national controversy. It was a microcosm of a global governance gap. Courts intervened cautiously. Regulators responded piecemeal. The constitutional dialectic between Article 19 and Article 21 was reaffirmed—but not institutionally modernised.
The challenge of media trials is no longer confined to editorial judgment. It is embedded in algorithmic architecture.
The world does not lack speech protections. It does not lack investigative agencies. It lacks a coherent forum capable of adjudicating systemic informational harm that transcends borders.
Until such a forum exists, digital power will continue to shape justice from outside the courtroom—globally amplified, structurally under-regulated, and insufficiently accountable.
Institutional innovation has always followed power shifts. Industrialisation produced labour courts. Globalisation necessitated trade tribunals. The algorithmic age, which reshapes not only markets but minds, demands no less.
The forum is missing. The question is whether the law will evolve to fill it.
ABOUT THE AUTHOR
Aamir Khan Wali is an Advocate at Law and a Legal Strategist, advising and representing clients across a wide spectrum of contentious and non-contentious legal matters. He also writes on the intersection of law, media, and constitutional governance.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
