By Samavi Srivastava and Rounak Doshi
Introduction
Social media has become today’s chosen form of communication. It is undoubtedly a great advancement in technology and development; however, it comes with its own set of legal challenges. After the recent event of President Trump’s tussle with the social media platform Twitter,[1] an important and worrisome legal limitation was brought to light. After Twitter fact-checked the President’s post claiming mail-in voter fraud and labeled the tweet about protests in Minneapolis as glorifying violence,[2] Trump pledged to strip online platforms of their immunity which has been provided to them through §230 of the Communications Decency Act, 1996 of the United States.[3] This essentially poses a greater responsibility on such platforms regarding the veracity and nature of the posts that they host.
Users of online platforms post content which is read irrespective of State borders. The negative effects of such content have become inescapable in all countries, including India. In the past few months itself, a flurry of news with no basis has circulated worldwide during the Coronavirus pandemic.[4] From rumors in England about non-white patients being left to die,[5] to mobs in India suggesting patients suffering from the virus must be shot dead[6] and preventing their bodies from being cremated due to fears of infection, rumors have ubiquitously shown the potential to harm societies. The uncontrollable spread of false information on WhatsApp led the Indian government to launch a chat bot specifically to curb fake news regarding Coronavirus[7]. Apart from this disease, cases of communal and ethnic violence caused by social media are also innumerable. One of the most noticeable cases was the 2014 violence in Pune, Bangalore, and Chennai causing thousands of people from the north-east to flee the cities after images related to violence against Muslims in Assam were spread, putting these residents at huge risk of backlash.[8]
While authorities may want to take down posts that incite violence, it is not in their power to do so. Additionally, there is no uniform law that filters content causing such disharmony in society. The debate between free speech, prevention of spreading false information, and the role of the government in the scenario pose a limitation in the governance of the country. This leads us to analyze and assess laws in India and the USA about online policing and highlight their drawbacks and need for revamping.
Laws in India and the United States about Online Policing
At present, India does not have a specific law to deal with the menace of fake news but it still has some legal provisions which can be invoked in case of misinformation.[9] For example, §505(1) of the Indian Penal Code imposes a punishment of a maximum of 3 years of imprisonment for making, publishing or circulating any rumor that may cause fear or alarm to the public.[10] Similarly, §54 of the Disaster Management Act imposes punishment for anyone who circulates a false alarm regarding a disaster leading to panic.[11] Furthermore, §66D of the Information Technology Act imposes a fine and imprisonment for anyone committing impersonation.[12] However, there is no legal provision in India that caters to the issue of timely removal of fake news/content.[13] During the COVID-19 period, the Ministry of Electronics & Information Technology (MeitY) issued an advisory requiring the intermediaries to conduct due diligence and take immediate action to remove fake news about Coronavirus.
Nevertheless, §66A of the IT Act provided for a punishment for sending offensive messages through communication services. However, the Supreme Court, in Shreya Singhal v. Union of India,[14] struck down §66A on the ground that it disproportionately invades, and is in clear violation of, the Right to Freedom of Speech enshrined in part III of the Indian Constitution. It also held that online intermediaries would be obligated to take down their content only on receiving an order from a court or government authority.[15]
There are plenty of legal complications in India which makes it very onerous to cater to fake news being spread on social networking sites. The IT Act provides intermediaries with qualified immunity from liability under all other laws.[16] Without the help of intermediaries, it is almost impossible for government agencies to de-encrypt messages spread on social media platforms. Even the Supreme Court in Facebook v. Union of India[17] held that de-encryption, if available to be carried out easily, could defeat the fundamental right of privacy. However, the sovereignty and security of the State may require de-encryption in certain circumstances. The Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 provides that intermediaries must provide assistance to any government agency that asks for it.[18] Intermediaries are also facing a lot of problems lately due to a lack of clarity in the law in India as it does not specify the actions to be taken by the intermediaries for filtering out content which is deemed inappropriate or problematic.
In recent times, there has been a substantial increase in the number of take-down notices by the Indian government.[19] Take Down notices are those notices that are issued by a government authority towards an intermediary to remove some illegal, irrelevant or unlawful content.[20] The major issue is that the servers of the majority of intermediaries are located in the US. The reason why this becomes of importance in the current discourse is that most of these social media companies such as Twitter, Facebook, Google, etc., follow a more liberal standard of permissible speech inspired by the First Amendment of the Constitution of USA[21]. This right has been devoutly protected by their Supreme Court time and again. In the case of United States vs. Alvarez,[22] the Court refused to recognize false speech as an exception to the First Amendment. Further, courts have consistently refused to hold social media platforms responsible for terrorist activities as was held in Fields v. Twitter[23] where ISIS was using Twitter as a platform. The lack of proximate causation and instrumentality of Twitter’s role in enabling ISIS in its activities protected it from any liability. The courts in the US have held that for any law to restrict a fundamental right such as free speech,[24] it must pass the test of ‘strict scrutiny’,[25] which necessitates that the law must be narrowly tailored to prevent vagueness. For example, the Supreme Court of the United States in R.A.V. v. City of St. Paul[26] went as far as to protect speech hostile to racial minorities, as it did not pass the strict scrutiny test, thereby leaving hate speech beyond the scope of the government’s regulation on social media. Further, the Supreme Court of the US follows the ‘void for vagueness’ doctrine with regard to laws that regulate free speech, which is a rule that require laws to state explicitly and definitely what conduct is punishable to prevent their arbitrary enforcement.[27] This is to ensure that due to nebulous and unclear laws, permitted speech is not arbitrarily censored along with prohibited speech.
Another medium for protecting Intermediaries in the US is the Communications Decency Act.[28] Originally meant to regulate free speech on the Internet, §230 of the said Act stipulates that no provider or user of social media will be treated as a publisher of any content provided by a third person[29] . This provides intermediaries protection from laws which may be used to hold them liable for the content that they post. Thus, this reinforces the absence of prohibition of speech on such sites.
The Way Ahead
The First Amendment in the US prohibits the government from censoring free speech, and as precedents have made clear, hate speech and fake news do not make the list of exceptions to the same. However, social media platforms themselves can make policies which regulate the content posted by their users. Facebook,[30] Twitter,[31] and YouTube[32] have policies against false and hate speech. However, these policies may not always follow a uniform standard of guidelines; while Twitter censored President Trump’s tweets, Facebook refused to do the same as it believed it was within its permissible limits of free speech, leading to uproar and dissatisfaction within its staff. The social media community may benefit greatly if there were to be more uniformity amongst these tech giants regarding what constitutes permissible speech. The Government may also interfere in the policies of these companies, requiring compliance to a set standard of what content is prohibited.
In the world, as well as India, the harsh history of censorship does not do any favors to the cause of legislation imposing filters on social media. From Plato and Socrates in Ancient Greece[33] to journalists and activists during the 1975 Emergency in India[34], censorship has been misused time and again. Laws prohibiting speech are difficult to implement as there is fear of minority views being oppressed due to their subversion. However, there ought to be some regulation regarding fake news and hate speech to prevent communal, ethnic, and social violence, as well as violence borne out of mere confusion. The test of ‘strict scrutiny’ followed in the United States may be employed in determining the limitations imposed on free speech. Moreover, it is suggested that the IT Act may be amended to include provisions with guidelines inspired by Philosopher John Mill’s theory of the harm principle which can be implemented by a representative censor board. The Harm Principle with regard to the Freedom of Speech suggests that people should be free to act as they please and say what they wish until their actions or words cause harm to somebody else. It is difficult to narrowly define what may constitute harm, especially on subjective matters such as these. However, the ‘test of reasonability’ may be used to determine which acts are likely to offend, insult, or intimidate a group of people, and further if such acts are motivated by racial or ethnic discrimination.[35] The censor board in question can decide on conflicting matters on a case to case basis. This protects the freedom of speech while also preventing society from harm.
We live in a generation sitting on the verge of change to a better, more tolerant and inclusive world. Speech plays a big role in such transition, requiring cooperation and acceptance. This makes the regulation of speech on social media an essential issue which ought to be explored by companies and nations worldwide.
The authors, Samavi Srivastava and Rounak Doshi, are currently law students at the National Law Institute University (NLIU), Bhopal.
[1] Ben Brody, Mario Parker & Eric Newcomer, Trump Aims Order at Social Media Giants Amid Fury Over Twitter, Bloomberg, available at https://www.bloomberg.com/news/articles/2020-05-28/trump-furious-at-twitter-aims-executive-order-at-tech-giants, last seen on 06/06/2020.
[2]Twitter Disables Trump Video, Reuters, available at https://www.telegraphindia.com/world/twitter-disables-trump-video/cid/1778778, last seen on 07/06/2020.
[3] Communications Decency Act (Act of 1996) S. 230 (United States);
[4] Kate Kelland, Fake news makes disease outbreaks worse, Reuters, available at https://in.reuters.com/article/health-fake/fake-news-makes-disease-outbreaks-worse-study-finds-idINKBN20807A, last seen on 06/06/2020.
[5]Coronavirus doctor’s diary: Fake news makes patients think we want them to die, BBC News, available at https://www.bbc.com/news/health-52337951, last seen on 08/06/2020.
[6]A Coronavirus Death In Kolkata Shows How Vitriol And Fake News Can Fan Paranoia, Huffpost, available at https://www.huffingtonpost.in/entry/coronavirus-death-kolkata-fake-news-violence_in_5e815e09c5b6cb9dc1a2abdf, last seen on 06/06/2020.
[7]India Launches WhatsApp Chatbot To Curb Fake News On Coronavirus, Bloomberg|Quint, available at https://www.bloombergquint.com/coronavirus-outbreak/india-launches-whatsapp-chatbot-to-curb-fake-news-on-coronavirus, last seen on 09/06/2020.
[8] Dangerous Speech in Real Time: Social Media, Policing, and Communal Violence, EPW Engage, available at https://www.epw.in/engage/article/dangerous-speech-real-time-social-media-policing-and-communal-violence, last seen on 08/06/2020.
[9] Prashant Mara & Vikram Jeet Singh, India: Telecoms, Media & Internet Laws & Regulations 2019, Mondaq, available at https://www.mondaq.com/india/media-entertainment-law/884840/telecoms-media-internet-laws-regulations-2019, last seen on 08/06/2020.
[10] S. 505(1), The Indian Penal Code, 1860.
[11] S. 54, Disaster Management Act, 2005.
[12] S. 66D, Information Technology Act, 2000.
[13] View: Disinformation in times of a pandemic, and the laws around it, ET Times, available at https://economictimes.indiatimes.com/news/politics-and-nation/view-disinformation-in-times-of-a-pandemic-and-the-laws-around-it/articleshow/74960629.cms?from=mdr, last seen on 10/06/2020.
[14] Shreya Singhal v. Union of India, AIR 2015 SC 1523.
[15]Suhrith Parthasarthy, The judgment that silenced Section 66A, The Hindu, available at https://www.thehindu.com/opinion/lead/the-judgment-that-silenced-section-66a/article7032656.ece, last seen on 10/06/2020.
[16] Prashant Mara & Vikram Jeet Singh, Liable vs. Accountable: How Criminal Use Of Online Platforms And Social Media Poses Challenges To Intermediary Protection In India, available at https://www.mondaq.com/india/social-media/928106/liable-vs-accountable-how-criminal-use-of-online-platforms-and-social-media-poses-challenges-to-intermediary-protection-in-india, last seen on 11/06/2020.
[17] Facebook Inc. v. Union of India, (2019) 2 SCC 1264.
[18]Draft on Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, para.5, available at https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf, last seen on 17/06/2020.
[19] Smitha Prasad, Rakhil Jindal & Vivek Kathpalia, India: Intermediaries – Messengers Or Guardians? How India And US Deal With The Role And Liability Of Intermediaries, Mondaq, available at https://www.mondaq.com/india/copyright/784524/intermediaries-messengers-or-guardians-how-india-and-us-deal-with-the-role-and-liability-of-intermediaries, last seen on 11/06/2020.
[20]Social media content takedown orders need to come via proper legal notices: IAMAI, Yourstory, available at https://yourstory.com/2020/04/social-media-content-takedown-orders-coronavirus, last seen on 17/06/2020.
[21] First Amendment, Cornell Law School, available at https://www.law.cornell.edu/constitution/first_amendment, last seen on 12/06/2020.
[22] United States v. Alvarez, 567 U.S. 709 (2012, Supreme Court of the United States).
[23] Tamara Fields v. Twitter Inc., Case No. 16-cv-00213-WHO (2018, United States District Court, Northern District of California).
[24] Fundamental Right, Cornell Law School, available at https://www.law.cornell.edu/wex/fundamental_right, last seen on 09/06/2020.
[25] Strict Scrutiny, Cornell Law School, available at https://www.law.cornell.edu/wex/strict_scrutiny, last seen on 09/06/2020.
[26] R.A.V. v. City of St. Paul, 505 U.S. 377 (1992, Supreme Court of the United States).
[27] Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship, 69–70 (Oxford University Press, 2018).
[28]William A. Sodeman, Communications Decency Act, Encyclopaedia Brittanica, available at https://www.britannica.com/topic/Communications-Decency-Act, last seen on 11/06/2020.
[29] Communications Decency Act (Act of 1996) S. 230 (United States).
[30]Hate Speech, Facebook, available at https://www.facebook.com/communitystandards/hate_speech, last seen on 11/06/2020.
[31] Hateful Conduct Policy, Twitter, available at https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy, last seen on 10/06/2020.
[32] Hate Speech Policy, YouTube Help, available at https://support.google.com/youtube/answer/2801939?hl=en, last seen on 12/06/2020.
[33] History of Censorship, Encyclopaedia Britannica, available at https://www.britannica.com/topic/censorship/History-of-censorship, last seen on 17/06/2020.
[34]Emergency in India: How the Press was affected in 1975-77, Times Now, available at https://www.timesnownews.com/india/article/emergency-in-india-how-the-press-was-affected-in-1975/246017, last seen on 11/06/2020.
[35] Freedom of Speech, Stanford Encyclopaedia of Philosophy, available at https://plato.stanford.edu/entries/freedom-speech/#:~:text=2.1%20John%20Stuart%20Mill’s%20Harm%20Principle,-Given%20that%20Mill&text=Mill%20claims%20that%20the%20fullest,for%20the%20dignity%20of%20persons., last seen on 19/06/2020.
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