SOCIAL MEDIA AND FREEDOM OF SPEECH
Maharashtra National Law University, Mumbai
With the level of advancement that humans have made with respect to communication, it is no surprise that we are able to transmit the kinds and levels of information that we can. Merely ten or fifteen years ago, the thought of having such a power would be the equivalent of admitting that aliens live on Earth. But, today, we can share not just information, but abstract thoughts, factual knowledge and even otherworldly experiences with countless people at the very same time. With no boundaries, we can now go on to display as much of our lives as we want to, as much of ourselves that we wish to bring forth to the virtual world – akin to the real one – that has now been created on the internet.
Society has now come together while simultaneously forming its own niches all over the internet. Be it common desires, goals or simply passing whims or interests, people relate to each other and look out for each other. They try to fill their minds in on what they wish to. In today’s times, the most commonly sought out haven for these relatively simple or impossibly complex pleasures of our lives, is social media.
Social media comprises primarily internet and mobile phone based tools for sharing and discussing information. It blends technology, telecommunications, and social interaction and provides a platform to communicate through words, pictures, films, and music. It has such an influence on everyone that one can even say that it has become a very dominant extension of our lives. In this era, it is arguably the most important tool for communication through which individuals exchange information and ideas. It has and continues to help innumerable growing movements of people around the world who are advocating for various fundamentally important requisites, like change, justice, equality, accountability of the powerful and respect for human rights. Social media performs the very crucial responsibility of being the carrier of their message to the rest of the world.
As it is a world of its own, people are arguably able to express all they wish to without any restrictions whatsoever. Just like in real life, the freedom of speech and expression takes to the virtual world, perhaps even more so than it gets applied in the real one. Freedom of speech and expression can be broadly understood as the notion that every person has the natural right to freely express themselves through any media and frontier without outside interference, such as censorship, and without fear of reprisal, such as threats and persecutions. As is the case of India, this concept is considered as a fundamental right granted under Article 19 (1) (a) of the Constitution of India.
India is a country with over 600 million internet users. In 2020, over 50 percent of India’s population was accessing social networks. It was also estimated that by 2025, this penetration of social networks would be 67 percent of the country’s population. Thus, to such a large user-base, with possibly infinitely diverse experiences and opinions, this is a very important place to voice their opinion and share a sense of commonality with those who agree, and debate and discuss with those who don’t.
But, like all good things, this comes with its own set of problems as well. As per Article 19 (2) of the Constitution, the legislature may enact laws to impose restrictions on the right to free speech and expression on the certain grounds. Even though it seems somewhat fair, there have been various instances that tell otherwise. Apparent tensions and concerns in relation to the freedom of speech on social media and its undefined boundary have culminated into a war between the government and the social media apps.
But this war isn’t very new. It has been going on for a long period of time. as a contextual example, In November 2012, a girl was arrested for a Facebook post on her profile in which she had questioned why the city had come to a standstill following Shiv Sena leader Bal Thackeray’s death. The post she updated, quoted verbatim was:
“With all respect, every day, thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.”
A friend of hers who had ‘liked’ the post was also arrested. There was a lot of uproar following their arrests and the court later dropped charges against the two girls.
In another similar incident, in October of the same year, three youngsters from Kishtwar were arrested for their Facebook activity, after they were tagged in a video which was termed blasphemous by the Government. One of them had merely commented on the video and met with the same fate as the other two. Furthermore, there was no prima facie evidence that they had actually uploaded the video either. They spent 40 days in jail for this after which they were let free.
But these are just some of a large number of such ‘activist’ performances by the government. What is much more revealing of the true nature of the freedom given to us is the current scenario. Human Rights Watch reported that in 2020, journalists were targeted for having criticized the government’s pandemic response. India also imposed the largest number of internet shutdowns globally, with 80 percent of them in Jammu and Kashmir. The situation is so severe that in September 2020, Amnesty International was forced to cease operations in the country.
Now this same notion of ill-liberalism is beginning to characterize the Indian government’s treatment of social media. The prime area of this battle is the government’s attempt to tackle the challenges social media platforms pose to Indian society, which has been codified in a measure known officially as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The rules are intended to address “disturbing developments” including fake news, distorted images of women and abusive language, as well as crime, terrorism and incitement to disturb public order. The rules require social media platforms to exercise due diligence processes to ensure they do not host illegal content and allow the government to notify platforms that a specific piece of information is illegal. They also require publishers of news and current affairs to adhere to a code of ethics, to be overseen by the government. Moreover, when necessary to ensure national security or combat crime, social media platforms must enable the government to identify the originators of specified private messages.
The rules have been the subject of widespread criticism both in India and internationally. As regards social media platforms, they have raised at least two serious human rights problems:
- First, the restrictions on permissible content are broader than the exceptions to freedom of speech allowed in international law and in India’s constitution, and the discretion given to the government to declare information unlawful creates a risk of censorship of acceptable political debate by whichever political party is in power.
- Second, the requirement that messaging service providers dismantle their end-to-end encryption on government request in order to identify the original posters of messages may violate the right to privacy.
The rules are also controversial because they seek to regulate not only social media platforms but also digital media. As Indian digital media organizations have written:
“For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitutional scheme but at democracy itself.”
As a result, Indian digital news outlets, led by The Wire, have begun legal proceedings against the new rules’ application to digital news portals.
Besides this, there are also legal battles being fought between the government and prominent social media apps like Twitter and WhatsApp, which continually challenge and condemn the gross measures introduced by the government, which do nothing more than spit in the very face of the glorified norms of the freedom of speech and expression, along with the right to privacy as a whole.
Determining who’s in the right in these disputes is not a simple matter, because the principles at stake are complex. On the one hand, it is the duty of every state’s governments to legislate for its own public’s interest. The large social media platforms have not yet proven themselves up to the task of appropriate content monitoring in all the countries of the world. Lack of regulation of social media has led to an environment in which illegal speech – such as hate speech, discrimination, incitement to violence and abuse of children – can and does flourish.
But experience has also shown that giving governments the power to control what is said is incompatible with protecting freedom of speech, as it creates an almost overwhelming risk of censorship and abuse. Instead, the history of media regulation shows that independent oversight combined with responsible behavior by media platforms can curate an environment that is free, diverse and respectful of context, yet not abusive.
Thus, the solution lies not in absolute government control, but in creating obligations of process for social media. The regulations ought to require social media platforms to conform to high, evolving and culturally sensitive standards of moderation of both content and user behavior, and to ensure that the platforms’ own algorithms and operating processes do not lend themselves to corruption or manipulation. The standards imposed by governments on platforms must be consistent with international human rights law and address all aspects of platform practice, and there must be independent oversight of and accountability for their implementation.
Although quite idealistic, especially in the wake of the current situation, it is only on these lines that the battle between the government and social media can be settled without violating or prejudicing either party of their rights while also not letting them slack off from their very important responsibilities.
 Paranjoy Guha Thakurta, Media Ethics (New Delhi: Oxford University Press, 2012), p. 354.
Tiwari, Shishir & Ghosh, Gitanjali (2018), Social Media and Freedom of Speech and Expression: Challenges before the Indian law.
Vinaya Deshpande (2012, December 19). Charges dropped against girls held for FB post on
Thackeray. Retrieved from http://www.thehindu.com/news/national/other-states/chargesdropped-against-girls-held-for-fb-post-on-thackeray/article4214545.ece