Guest contributor Maanya Vaidyanathan is the Policy and Engagement Manager at The Dialogue, a tech policy think-tank in India. She specialises in International Law, Gender Policies, Intermediary Liabilities and Foreign Policy.
Guest contributor Kazim Rizvi is a Public-Policy Policy Entrepreneur and Founder of The Dialogue, a tech policy think-tank in India. Kazim is one of the leading voices in India’s tech policy discourse.
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
― John Milton, Areopagitica
Freedom of speech and expression gives individuals the right to freely express themselves without the fear of being reprimanded. This right, however, is neither absolute nor devoid of responsibility. It is a complex right that comes with reasonable restrictions, as given in Article 19(2) of the Indian Constitution.
Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Convention for Civil and Political Rights provide for freedom of speech and expression in any medium, including online media. In 2020, the Supreme Court of India guaranteed this right in the online world in a landmark judgment on the internet shutdowns in Kashmir.
The court ruled that freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected and the restrictions on this freedom must be imposed under the terms stated under Article 19(2) of the Constitution.
Online platforms act as vital communication tools which dominate our everyday lives and act as a medium for spreading and gathering news. Over the last few years, the online world has allowed people to create their own communities and find the support, encouragement and courage that they may not find elsewhere. Additionally, the virtual space has given a lot of underrepresented sections of society an identity and a platform to express themselves freely, without the fear of judgment. The internet and its intermediaries play a pivotal role in allowing people from all over the world to connect, gather information and create a sense of belonging.
Every commodity has the potential for misuse, and the internet is no exception. Along with the safe spaces that have been created online, the online world has become a breeding ground for hate speech and fake news.
In order to tackle the growing menace in the online space, the Government of India introduced the draft amendment to the 2018 guidelines under the Information Technology Act. The changes in the amended guidelines prescribe certain conditions for content hosting platforms to seek protection for third-party content. The aim of the guidelines is to reduce the flow of unwanted and controversial content on social media platforms by mandating ‘automated filters’ to mechanically take content off the platforms and trace the original author to hold them accountable. This step, however, is not conducive with the spirit of free speech. The amended guidelines fail to define subjective phrases that warrant removal of content – such as “decency” and “morality”- which gives way to a take-down process that is arbitrary and inconsistent.
The amended rules also risk misinterpretation as the drafters have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. This shows how the guidelines are contrary to the landmark ruling The Supreme Court gave in the Shreya Singhal judgment in 2015.
Additionally, the revised guidelines compromise the practice of end-to-end encryption, which will give way to widespread government censorship and surveillance. End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Through this system, for intermediaries to monitor content, they would have to know what the content is, which may threaten users’ privacy along with their right to free speech.
The amended guidelines lead to the violation of an individual’s right to privacy, right to equality (allowed under Article 14 of the Indian Constitution) and most importantly, the right to free speech. These three rights are fundamental human rights, awarded to each individual through national and international legislation. The internet has the power to reach the masses and allows everyone the opportunity to have a voice and call out instances of injustice and mistreatment that they may witness. Through social media platforms, citizens across the world can unite despite territorial limitations. Hate speech makes the internet a toxic environment to navigate, while fake news makes it an unreliable environment. However, censoring and controlling the speech of every user will not curb these nuisances.
Policies are required to take into consideration the interests of all people, either individually or collectively. What is therefore desirable is regulation of social media, not its censorship. Social media platforms need to continue to remain theaters for safely exercising the right to free speech.