FREE SPEECH AND THE CYBERSPACE: ROLE OF INTERMEDIARIES

Vedant Patil, ILS Law College, Pune

Recently, a popular YouTube influencer Ajay Negar, better known as Carryminati posted a video on YouTube titled “YouTube vs. Tiktok” which went viral quickly, attracting over 70 million views within 24 hours of being posted. The video host, popular among his fans for his reaction videos, reviews popular videos online and adds an interesting commentary to it. This commentary is peppered with colorful language full of expletives that border on being abusive. The aforementioned viral video was no exception to the same. Thus, upon receiving complaints, it was promptly taken down from the platform, which in turn, sparked a wave of rage among his fans, flooding different social media platforms (YouTube, Twitter, etc.) seeking ‘justice’ for their ‘messiah’.

It has become a recurring online trend where supporters of a popular personality (political, religious, glamour, etc.) split among a binary and launch targeted attacks against the other side. Examples of this can be cited aplenty. Standup comedians like Agrima Joshua, Rohan Joshi, Abish Matthew were at the receiving end of heavy online criticism for their comic acts, old tweets and other social media posts. Even trifle allusions to revered figures in India have an immediate consequence of being branded Hinduphobic, anti-national, liberal or member of ‘tukde-tukde gang’. More recent trends can be seen in the case of the alleged suicide of an actor, Sushant Singh Rajput and the extent of blame being laid on Rhea Chakraborty, his girlfriend. Any attempt to regulate this tirade of offensive online content is deemed as stifling Freedom of Expression.

We all are living in the internet generation where the online space is an extension of our existence. Although technology has made advances by leaps and bounds, social media serves as a grim reminder of the values espoused by our society. At times, this virtual world has consequences in the real world too, aptly summarized by comedian Hasan Minhaj as: Social media is like HPV. Just because you don’t have it doesn’t mean it doesn’t affect you or someone you know.

The limits to one’s freedom of expression are really tested in incidences like the ‘Bois Locker Room’ controversy, where some teenagers were found to be participating in an online group which was used as a forum to exchange compromising images as well as information about teenage girls, mostly among their acquaintances. The aggravated comments about committing sexually explicit acts with these underage girls, and the nonchalance with which these words were uttered raised a storm in the news media. The group’s conversation content involved criminal offences under the Protection of Children from Sexual Offences Act, 2012. This incident posed some important questions as to the extent of liability of social media platforms, especially when minor children are involved.

The public backlash to the above mentioned incidents has the regular modus operandi: public shaming of the ‘offenders’, calls against the social media to take action against them and, in case of celebrities being the offenders, a demand to boycott their future projects or denying them professional opportunities. The last one has gained currency in the modern times as ‘Cancel Culture’. As people tend to jump to conclusions upon coming across carefully edited clippings, memes, etc. the ‘cancel culture’ has gained victims of all shades, from the actual offenders to those who were unknowingly in the proximity of them.

Originally, ‘cancel culture’ was used to voice opinions about people with serious crimes, however, it has now descended into mob frenzy, demanding cancellation of people with arguably the pettiest of mistakes. Racism, sexism or homophobia is surely unpardonable if it has been a regular ‘code of conduct’ of the offender. But, the mob seems to be unforgiving of even those who have publicly taken responsibility of their mistakes and regretted them. At the very least, this is a toxic practice of the virtual society and instead of addressing the disease, prefers selectively chasing symptoms. The problem with cancel culture is not the admission or shining light upon something wrong, but one group being able to dictate what is wrong and what isn’t.

It would be much better for the society to take a momentary pause, examine the issue and how it affects them or the ‘victims’ in the said context instead of immediate rallying behind one’s side and demanding ‘justice’. The ‘Cancel Culture’ has ended some careers where the situation really merited it, like Harvey Weinstein and Bill Cosby, or in India of MJ Akbar and Alok Nath, while many others have been able to come back, after considerable period of regret. ‘Cancel Culture’ thus stems from a deep underlying frustration among the masses over lack of consequences against people in power for their misdemeanors.   

There is also a necessity of driving conversations online about establishing new set of standards of morals, norms and a calibrated response upon their violation. There must be a collective demand to address the culture that nurtures such behavior embodied by the offenders. The rhetoric over what’s right and wrong has started assuming ideological divides, making political issues over personal actions.

In case of the comedians, YouTube and Twitter were the social media playing hosts or the ‘Bois locker room’, where Instagram was the medium of choice. WhatsApp has taken a lot of blame for spreading rumors and fake news, which has translated into real world consequences, where innocent people have been lynched. Governments all over the world have been struggling to apply old legal principles and precedents to these problems.

The role of social media companies as mere ‘intermediaries’ providing information, or public forums for people to connect and socialize is no longer sacrosanct. In India, the Supreme Court and the government have sought mechanisms to regulate these platforms while shifting part of the burden of responsibility on them. The Supreme Court has at times also sought the intermediaries for monitoring and censoring objectionable content, according to different applicable laws in India.

In light of these incidences, Germany passing a law requiring social media companies to report hate speech to the police as well as making these platforms liable for such content, begs global attention. According to Network Enforcement Act (NetzDG), insults amounting to “psychological violence” are punishable, along with defamation of political personalities, disruption of public peace, child pornography, perpetration of violence and anti-Semitism. Such criminal offences must be reported to the police and the social media website is expected to take down such content within 24 hours to a week, depending upon the nature of the content. Additionally, the companies are required to publish a report every six months on how they have dealt with complaints. Non-compliance would attract fines ranging from 5-50 million Euros. The users whose content was removed do have a right to appeal, and the social media platforms must provide a reason why such an action was taken.

As the parameters to judge the offensive nature of such content are vague, and actions such as ‘defamation’ of political personalities would probably amount to curbing of dissent, human rights organizations have opposed it, citing reasons of arbitrary curbs on free speech being adjudicated by private organizations. It is a sign of cognitive impairment if one is not alarmed on seeing ‘human rights’, ‘Germany’ and ‘arbitrary actions’ in the same sentence.

The social media companies have voiced their displeasure on this law as they have not been consulted adequately. Facebook has plans to recruit 3000 more workers in addition to the existing 4500 to review offensive posts. But, it must also be noted that the sheer volume of content flagged by users as inappropriate and requested for being taken down is humongous. A person tasked with reviewing such content has barely a couple of seconds to decide the merits of the complaint and the nature of the content being asked for removal. The personal value system, paucity of time as well as mental ability of such persons are the factors which act largely against the author of the post, as companies cannot afford to err on the side of free speech, especially when hefty fines are imposed.

This law has set a dangerous precedent as it has attracted the attention from other countries, notorious for their draconian censorship laws and a rich record of curbing dissent – Russia, Venezuela, Singapore, Philippines – to name a few.

How does this then compare to the situation in India?

India is no stranger to this phenomenon, as evident from the examples cited. India has a proud tradition of being a liberal democracy, where liberty of thought, expression and beliefs has paramount importance. It has been enshrined in the Indian Constitution in the form of fundamental rights which are safeguarded by the judiciary. But the extent to which judiciary can recommend punitive action against such free expression, is an increasingly debated issue. The ‘moment of truth’ arrived in the form of Shreya Singhal vs. Union of India, challenging the constitutionality of certain provisions of the Information Technology Act, 2000 and liability of intermediaries (here, Facebook).

The now scrapped Section 66A of the Act classified such content as “grossly offensive in nature, untrue and intended to cause annoyance, inconvenience, insult, injury, enmity, hatred or ill will.” But even before being struck down, it was the individual being held liable and not the social platform/intermediary used for publishing such content. The Supreme Court reasoned as such offences being vague in nature, and parts of it being already covered elsewhere in the IT Act. Jurisprudence dictates that a law must specify in clear terms the offence and the sanction. A layperson must be able to understand it so as to avoid its violation and the law enforcement authorities must know the nature of the offence to avoid an arbitrary action during such an occurrence.

This section did not distinguish between public dissemination of messages versus private conversations, which created ambiguity over the potential impact of such. This became a prominent issue during the ‘Bois Locker Room’ incident where a private chatroom was involved. The current provisions in law, regulating freedom of speech concern public speech. Thus, expecting social media companies to even monitor private conversations would arguably result to serious violations of privacy of individuals. WhatsApp meanwhile, found itself in hot waters when the government asked it to take actions against objectionable content or be treated as an ‘abettor’ and face legal consequences, under relevant sections of Indian Penal Code, after the role of WhatsApp in mob-lynching related incidents was established.

The Supreme Court has relied upon precedents in determining ‘reasonable restrictions’, the existence of which would not be arbitrary to a user being able to enjoy his rights. As the internet lacks physical barriers against the transmission of information, an online post can be accessed almost anywhere in the world. The intermediary thus, cannot be held responsible for misuse by the users for incendiary speech, which in their right mind, was only voicing their opinion, nor can it deny them this space. This freedom is the great virtue of today’s social media, which can only be restricted if it ‘reasonably’ violates the fundamental rights of other individuals.

The conflict between the extent of free speech and the liability of intermediaries to regulate it resulted in the passage of Section 230 of Communications Decency Act in the US Congress. It essentially protected the social media companies from being held liable to third party content hosted on their platforms, even in case of potentially undesirable/objectionable content. It was rightly called as ‘The law that gave us the modern internet’ and resulted in a wave of other countries passing similar provisions in their legislations.

In India, Section 79 of the IT Act protects the intermediaries as long as they adhere to the established requirements of ‘due diligence’ and do not play an abettor or co-conspirator to an unlawful act. These requirements have been codified in the Information Technology (Intermediary Guidelines) Rules, 2011.

As the law puts undue burden on these intermediaries to determine the nature of content posted by its users, it becomes a liability upon them to act in self-defence by proactively taking down such content, which then acts as an impediment to free speech. The Supreme Court tried to alleviate them of this infliction by reading down Section 79(3). It said that the intermediaries must remove such content only when there is a court order or a government notification to that effect. We should understand that social media platforms have enough access to our information to regulate it. The extent of this can be found in the ‘User Agreements’ that we casually ‘agree’ to without reading. These agreements exist as an obligation to the ‘due diligence’ requirements.

Regarding the jurisdiction of Indian courts, in the case of Swami Ramdev vs. Facebook & Ors., the petitioner demanded that certain ‘defamatory’ content about him (a book ‘Godman to Tycoon – The Untold Story of Baba Ramdev’) be taken down from all social media pages. Relying on the Shreya Singhal judgment, the court ruled that the content be taken down from servers across the globe as Section 75 of the IT Act permits the same, as long as the origin of the content was in India. Thus, this section has extra-territorial applications as well and sets a dangerous precedent on the power of courts to exceed their jurisdiction beyond national borders.

Conclusion

Thus, we can see that intermediaries such as Facebook, Twitter, Youtube and WhatsApp are toeing a dangerous line where leaning on either side would incur the wrath of the other. On one side, the general populace would reasonably expect their individual freedoms of expression and privacy to be respected, while on the other side, governments would demand them to monitor such online content instead of becoming an accessory to spoiling the social decorum.

As more and more people across the world, especially due to the COVID-19 situation, find employment, leisure, and an escape in the cyberspace, the liability of intermediaries can be expected to increase. Social media was invented to help people exchange ideas and voice opinions, especially the ‘voiceless’ (see Facebook’s role in Tunisia and the Arab Spring). But, the need to find a balance between freedom of speech and regulating objectionable content to making the online spaces safe and accessible to all cannot be neglected (especially women, children and marginalized communities).

The jurisprudence regarding this Catch-22 situation is still evolving. Leaving the adjudicatory function entirely in the hands of intermediaries can lead to undesirable outcomes, evident recently with how Facebook condoned hate speech violations in India.  The Supreme Court has also wavered in its duties to protect freedom of expression, seen in the conviction of senior advocate Prashant Bhushan, in the face of bona fide criticism. Meanwhile, the Indian government has been hesitant in passing legislations banning hate speech and abusive language on social media as many of these lawmakers have links with the abusers.

Thus, it would be prudent on part of the government, judiciary and the intermediaries to work together for framing user policies, regulations and approaches to sanctioning offensive content and its author(s). Until then, it would be expected of the intermediaries to be proactive in censoring universally objectionable content, such as child pornography, inciting racial or religious enmity, etc. The steps taken by the governments worldwide to affix criminal liability on the intermediaries are unilateral and unjust. They should serve as a model of what must not be replicated further, and reversed, wherever possible.

While striking down Section 66A of the IT Act, Supreme Court has rightly noted, “Thought control is a copyright of totalitarianism, and we have no claim to it… We could justify any censorship only when the censors are better shielded against error than the censored.”


Vedant Patil is a student at ILS Law College, Pune. You can find him on LinkedIn.


 

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