Banning Bits & Bytes
It's a magical feeling to be holding a stack of papers extolling the virtues of an 'informed citizenry', the 'marketplace of ideas' and how ‘liberty of thought is a cardinal value'... only to realise – it's the law.
As news poured in of the Supreme Court’s decision in the case of Shreya Singhal v. Union of India, Indian cyberspace erupted with joy. The court struck down Section 66A, upheld Section 69A, and read down Section 79(3) of the Information Technology Act – giving a boost to online speech and expression in India. Even politicians who had earlier supported the provision joined in the celebrations.
A Revolutionary Medium
The Supreme Court explored an important issue in this case – should online content like Facebook posts be treated differently from, say offline pamphlets?
On one side, the petitioners argued that the internet is no different from traditional media, so similar standards should apply. This was refuted by the government with an extensive list of what makes the internet distinctive – wider reach, anonymity, privacy risks, etc. The Supreme Court concluded that:
“…there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation.
However, in a press release published after the court's decision, the government appears to have tempered this expectation by stating that:
"We will have to understand that we cannot set a different standard of public morality for speech & expression in cyberspace from speech in other mediums and in the public domain"
But even with this assurance, it won’t be long before we find ourselves faced with some difficult situations or what we call the 'hard cases'.
The Hard Cases
Should websites be forced to remove content if it is considered ‘offensive’ by some people but not others, especially if it is in the public interest to keep them up?
Digital platforms operating in India got a taste of this when the government banned a BBC documentary discussing an incident of rape in Delhi. The ban was widely criticised, but the government secured an order for removal under S.66A of the IT Act. Within hours, the documentary was blocked for users in India.
Another example: when the comedy group AIB staged a live show featuring several film stars, they received a standing ovation. When they released a watered-down version of the show on YouTube, they received arrest warrants instead. If a set of jokes can be enjoyed by a live audience of four thousand people, only to fail the test of ‘public morality’ in front of an online audience, should it be taken down?
Probably the hardest hitting example is the case of 22-year old Elliot Rodger, who killed six people and stabbed three others in a violent shooting spree. As news of the incident spread, users stumbled on videos that Rodger had posted on his YouTube page. In them, he talks in a self-deprecating tone and reveals plans to avenge the women who ‘rejected him’. Rodger’s videos will upset many, but is flushing out such information from the internet the right move? Perhaps an honest debate about the videos could trigger a discussion about depression, misogyny and privilege, which could prevent a future incident from taking place.
Procedural Problems
In 2011, twenty-two platforms were taken to court in India for failing to remove certain 'objectionable' cartoons featuring high-profile politicians. The Supreme Court has now laid down rules to prevent platforms from having to ‘apply their own mind’ in such situations by clarifying that platforms need to act only if they have ‘actual knowledge’ of the unlawful content by a court or government agency.
These procedural safeguards are helpful, but could prove to be frustrating for the common man. That's why platforms should invest in building trust with users. For example, they could implement systems that allow users to report instances of bullying, harassment, stalking directly to them, without a court order.
Finally, by leaving Section 69A untouched, the Supreme Court did not take steps to improve transparency in blocking orders. The Supreme Court has directed the government to record its reasons for blocking so that it can be subsequently challenged in court. But if these blocking order are required to be kept confidential by platforms under the law, will they ever be challenged? For now, we will have to rely on the good nature of private corporations to be transparent.
The Way Forward
The Supreme Court’s decision in Shreya Singhal has stirred up an important debate around online speech in India. Human subjectivity lies at the heart of this debate, which leaves open the possibility for arbitrariness and abuse. As the government gets ready to draft new laws to regulate online speech, we must ensure that it promotes transparency objectivity and fairness. Till such time, it might be wise to exercise some restraint in banning bits of cyberspace.