The LexGaze Weekly - WE THE PEOPLE

Can Regulation of Social Media Stifle Free Speech in India?

Saksham Grover

Issue 12 | September 06, 2020

“When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.”

Supreme Court of India, Shreya Singhal v. Union of India ((2013) 12 SCC 73)

In a diverse country like India, there are always resenting voices of the people against different types of policies, plans, and schemes that the Government introduces. With the advent of several social media platforms and increasing circulation of views and opinions, including hate material that has been linked to public disturbances, there has been a paradigm shift in the legal discourse around hate speech. Debates around the regulation of “speech” on social media platforms have been erupting all around the world. Undeniably, Facebook, Twitter, and other social media websites have their advantages; but it is also true that these platforms have been extensively used for the dissemination of offensive and hateful content.

The US President Donald Trump recently signed an executive order which seeks to strip off the immunity enjoyed by the social media companies. The Communications Decency Act in the US provides immunity to the “interactive computer services”, including social media providers for the actions taken voluntarily or in good faith to restrict “objectionable” content on their platforms. This move has put a spotlight on India’s social media regulations. However, unlike the US, freedom of speech and expression in India is not absolute. It comes with its set of “reasonable restrictions” under the Constitution of India. The Shreya Singhal judgment in 2015 was a turning point for the “online free speech” regime, prior to which the online and offline speech were treated differently under the law.

Striking the Right Balance

Platforms like Google and Facebook – the intermediaries – use the “automated filtering” technology to detect and remove forms of content that go against their safety standards. These intermediaries are regulated in India through the Information Technology Act of 2000 and the rules made thereunder, viz. the Information Technology (Intermediary Guidelines) Rules, 2011. The draft amendments to the existing guidelines seek to curb misuse of social media and holding the intermediary responsible. However, the amendments have attracted considerable flak due to the broad surveillance powers given to the Government. The issues of traceability of origin and statutory mechanisms of interception, monitoring, and decryption have largely been seen as a threat to free speech on the internet.

Till now, the intermediaries themselves have opposed censorship, except in special circumstances. There has to be a balance between censoring media content and the right to freedom of speech and expression. A liberal interpretation of free speech under Article 19 of the Constitution of India could allow the citizens to assert such freedom against private parties. Individuals on the internet should have a right to assert their fundamental right to free speech, allowing them to invoke the remedies provided under the Constitution.

The reach of social media today, with easy access to smartphones and better bandwidth, is huge. Consequently, these platforms are highly influential. So, it is necessary that the intermediaries are treated at par, and are subjected to a higher accountability. With several amendments coming in, to justify the role of these websites as merely a platform would be a tough task. Websites like Twitter have already – on several occasions – been accused of being biased and taking down content. The moment they step into censoring, these websites might be classified as “publishers”, subjecting them to higher scrutiny.

Having said that, the Indian Constitution does not guarantee absolute freedom of speech. The Government, as well as the people duly acknowledge the menace of illegal content, misinformation, and hate speech being circulated on social media platforms. To attack this, the law should dictate a grievance mechanism, in collaboration with the intermediaries to enable the deletion of such content.

While restricting hate speech and misinformation is essential, the need is to redress and act, not censorship. Transparency is supreme. The guidelines proposed for the intermediary control are a step in the right direction. However, ‘over-governmental’ control would simply be the anti-thesis of free speech. Setting up an independent body to regulate the dissemination of misinformation and hate speech seems to be the only way out. The power to impose restrictions does not – in any way – mean the power to be arbitrary and suppress dissent. The test for restricting free speech on the internet should strive to be rigorous.