IS ELON MUSK’S ABSOLUTE FREE SPEECH CAMPAIGN POSSIBLE IN INDIA? by-Ayshwarya K.
Elon Musk, the world’s richest man, intends to buy Twitter, with the declared goal of restoring “free speech” on the influential social media platform. Musk is most likely referring it in an American context, where the struggle for “free speech” has become a popular demand for those who accuse Twitter of stifling their voices through arbitrary restrictions. But in India, the situation is worse and even more complex. Twitter has been in a tussle for over a year with the Indian government and is attempting to fulfil the significant spots mandated by the government,where other firms have had better success. So, this article analyses the current status of ‘right to freedom of speech and expression’ in India’s Twitter platform and the role of ruling party in the Centre in controlling it. In the end, the article concludes by discussing the outcomes of such conduct and its grave impact on a democratic country like India.
Keywords: Article 19, Twitter, harassment, IT act, NDA government.
Freedom of speech and expression is indispensable in a democracy. In Romesh Thapper v. State of Madras2, Patanjali Sastri.J rightly observed that – “Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government is possible”. But in this modern era, newspapers are no longer sufficient for disseminating information and viewpoints to a wider audience. People may now voice their opinions to the world on anything, anytime and from anywhere, thanks to the advent of smartphones and improved internet access. Social media platforms like Facebook, Twitter, Instagram, YouTube, LinkedIn and Reddit have helped millions to share photos, videos, interests, portray their personality, talents and achievements. Unfortunately, this level of liberty has backfired, particularly in Twitter, as people without thinking twice, tweet objectionable views, resulting in discord and unrest.
FREEDOM OF SPEECH AND EXPRESSION IN INDIA
In India, the freedom of speech and expression is granted by Article19(1)(a) of the Indian Constitution includes the right to express one’s views through any medium, which can be by way of writing, speaking, gesture or in any other form. It also includes the rights of communication and the right to propagate or publish one’s opinion. But this right is subject to limitations imposed under Article19(2) which empowers the state to put reasonable restrictions on the following grounds e.g., security of the State, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, incitement to offence and integrity and sovereignty of India.
Even though there is not one single comprehensive framework dedicated to regulating the actions of users in cyber space, laws like Information Technology Act of 2002 and Indian Penal Code have been contributing significantly in keeping an eye on them. But the IT Act is not exhaustive and suffers from jurisdictional conflicts and is silent on many modern-day internet issues.
In Shreya Singal v. Union of India3, the Supreme Court invalidated Section 66A ofthe IT Act in its entirety, the most worrisome aspect of the section being its overly broad andvague approach. While the provision intended protection against ‘annoyance’,‘inconvenience’, ‘danger’, ‘obstruction’, ‘insult’, ‘injury’, ‘criminal intimidate, or ill-will’, itleft many terms undefined, leaving behind a lot of scope for arbitrary action. The courtfurther held that the section went beyond the scope of ‘permissible restrictions’ under Article19(2) of the Indian Constitution.
Section 69A of IT Act contains rules indicating that the originator or author of the content should be given a hearing. But this precaution is not evidenced in reality. There isn’t a single instance of such a hearing on record.
With respect to the freedom of speech and expression in social media, Indian courts have made significant judgements in upholding it. In 2020, the High Court of Tripura4 ordered the police to refrain from prosecuting the activist who was detained over a social media post where he condemned an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and advised people against it. The HC held that these orders are in line with the very essence of the Indian Constitution. But in the other hand, in the case ofTehseen S. Poonawalla, v. Union of India5, the Supreme Courtgranted the government broad authority ‘to restrict or prevent the spread of irresponsible andexplosive communications on various social media platforms, which tend to encourage mobviolence and lynching of any kind’.
Therefore, it’s evident that the Indian judiciary has attempted to strike a balance between the fundamental right of freedom of speech and welfare of public and administration in every possible case.
SEDITION LAW-A BLOT IN DEMOCRACY
The law of sedition contained in section 124A of the Indian Penal Code is a highly contentious section and is considered the worst of laws to be charged for libel and content.According to it, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment of three years and even for life.It’s a colonial statute that was designed mainly to silence and persecute all those who objected to the exploitative and illegitimate administration of the government. This legislationis needless in a democratic government like India. Voicing one’s opposition to the government’s misdeeds and maladministration may be targeted under Section 124-A, resulting in a violation of the basic right to freedom of speech.
This provision has significantly affected the liberty of journalists in India. In 2021, many journalists were faced with FIRs and sedition charges in the States of the ruling party for their tweets, alleging them to be false, misleading and intentionally malicious6. On May 11, 2022, the SC put a hold on the sedition laws and asked the Centre to re-examine their provisions7. This will allow journalists, activists, satirists, film makers, human rights advocates and political opponents to exercise their basic right to free speech without the fear of a dangling sword of sedition over their heads.
It is obvious that the laws governing freedom of speech and expression in India are not conspicuous and still evolving. In the ongoing legal and political dispute, an intermediary like Twitter is being treated by the Indian government.
JOURNEY OF INDIAN TWITTER
Nowadays, peoples first choice to express their opinion to the world has been social media platforms like Twitter, given its far reaching ramifications. As of January 2022, there are 25 million Twitter users in India8including highly influential politicians, business leaders, entertainers, activists and intellectuals — public figures with large followings who in turn shape the public discourse surrounding politics, media, finance and technologyand they are all more active now than they have ever been before. Users use hashtags to call out anything and make it ‘trending’ to gather attention worldwide. For instance, 2020 saw a significant rise in digital authoritarianism in India and #lockdown, #stayhomestaysafe, #WFH were trending on twitter. Netizens have also been actively participating in political discussions by supporting or criticising government policies through tweets and memes. In 2019, people resorted to twitter to show mass disapproval of the CAA laws. In 2021, pop diva Rihanna lit Indian internet on fire with a seemingly benign post asking why farmers’ demonstrations weren’t receiving more attention. Greta Thunberg, a climate activist, added fuel to the fire by posting a document declaring a regional party to be a “fascistic ruling party.”
Amidst all this, twitter users never failed to spot inspiring moments. A great example would be the video of a 19-year-old boy who runs 10 km every night after his duty to become fit enough to join the Army garnered millions of views and appreciation.
THE UGLY SIDE OF TWITTER
Without a doubt, it is apparent from above that Twitter has served as a medium for not only exchanging information and heart-warming tales, but also for numerous sociological and political ongoing discussions, which is a hallmark of a strong and vibrant democracy. However, without appropriate content and user rules, Twitter has become a nightmare for many users. The majority of the platform’s accounts are programmed bots that share controversial content and propagate disinformation. Abuse and harassment have been a worldwide issue for more than a decade.Twitter’s rules say the social network “may prevent certain content from trending,” including content that incites “hate on the basis of race, ethnicity, national origin, sexual orientation, gender identity, religious affiliation, age, disability, or disease”. But the reality seems different.
Irrespective of their social status, high-profile women, journalists and students have been targets of rape threats.Women across the world have been criticising the social network’s passivity on harassment, prompting then-Twitter CEO Jack Dorsey to launch a tweetstorm in 2017 about how the firm will be “more active” in combating abuse on its platform.In spite of the new safety features introduced by Twitter over the years such as keyword filters, and a Trust and Safety Council, targets report none of this has been very successful9. Even if twitter blocks the accounts of harassers on receiving a complaint, bot accounts pop up in no time.Regardless of Twitter claiming India to be its fastest growing market in the world, trolls and attacks on eminent personalities have become a day-to-day scene.
Twitter is attempting to improve the accuracy of its abuse-detection algorithms, as well as taking a data-driven approach to abuse management in all areas, including policy and engineering. However, Twitter’s algorithm-based strategy appears to be failing in India. The major reason for this is that India has 22 official languages, of which only six are supported by Twitter. Twitter’s failure to deal with local language abuse in India is emblematic of how American internet companies with international presence frequently fail in foreign markets.
Pursuant to Article 4(d) of India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Twitter is obliged to submit a monthly report on how it handles complaints from Indian users, including the steps it takes to address them, as well as the number of URLs it has blocked as a consequence of network surveillance measures. The Grievance Officer used proactive monitoring efforts to register a total of 873 abuse or harassment and 330 misleading grievances by the May 2022 Report. In reaction, Twitter has suspended the accounts implicated if the complaints are proven to be true10. Indian law enforcement is unable to intervene, and prosecutions are extremely rare.
GOVERNMENT OF INDIA v. TWITTER
Typically, governments liberalise laws and regulations to support MNCs at every stage of their operations, in order to attract foreign investors and promote ease of doing business. But now the tables have turned against social media companies. That’s because for years now, the ruling government, rather than social media companies, have been taking the front on deciding who gets a voice online. This strategy renders social networks less of a public square. Many countries throughout the world have asked Twitter to remove information that they deem to be harmful or biased. Surprisingly, a closed totalitarian state did not lead the list of countries demanding that content be deleted from the site. In the first half of 2021, Japan led the globe in legal claims for Twitter material11. India, on the other hand, has taken a pragmaticapproach.
Following a notification from India’s IT Ministry under Section 69A of the Information Technology Act in 2021, 257 Twitter URLs were prohibited. Some of the requests were granted, but Twitter declined to take action against accounts belonging tojournalists, or activists. Twitter defended its conduct by claiming that the flagged information was “free expression” and “newsworthy.”The government issued a warning to Twitter, urging it to follow the regulation and threatening legal action if it did not. It went on to say that top officials at Twitter may face up to seven years in prison for failing to remove “objectionable and inflammatory information”. This episode exemplifies the current NDA government’s stubbornness towards the Silicon Valley corporation.
REPERCUSSIONS OF THE COLD WAR
At least 24 nations, including India, will enact new laws or guidelines to govern how businesses operate in cyberspace by 2022. The government hinted at coming up with a new law when it told the Supreme Court about the necessity of regulation of digital media because they are “totally out of control” and “remain unregulated”. As a result of that conflict, the Centre has drafted a set of new IT guidelines12 to govern all types of social media, news-related websites, and OTT platforms. The requirements include a self-regulatory system with a strict specific code of ethics and frequent compliance reports. Among other things, the rules necessitate social media businesses to create three jobs in the country: a “compliance officer” whowill ensure their company follows local laws and to keep a constant track, work on a 24×7 basis, and address complaints from law enforcement agencies; a “grievance officer” who will address complaints from Indian users about its platforms; and a “contact person” available to Indian law enforcement 24/7 and they all have to be domiciled in India. This is due to the fact that, currently, Indian authorities have to wait for the availability of employees in California, who are 12 hours behind them whenever they are facing an urgent issue with any content on Twitter.If authorities request it, companies must also trace the “first originator” of messages. They will also be expected to produce compliance reports on a regular basis.
Going above and beyond, the government has also taken to a Swadeshi microblogging app called Koo, which offers messaging in eight Indian languages and has observed a rapidly growing upward trajectory in its user base, reaching 3 million users in a week13.
WHAT CAN BE DONE?
The growing importance of social media platforms and other forms of digital media, as well as the extent to which the masses are influenced by them, have created a need for a legal framework that promotes “freedom with accountability” while remaining light enough to ensure effective compliance with applicable laws. Concomitantly, threatening a social media platform with criminal liability for a 3rd party material will cripple its autonomy to provide its users a secure domain to disseminate news and their views on it.
Certainly, the new rules will aid in curbing online abuse and harassment and they represent a monumental leap for Cyber laws in India. However, the new rules should not give the current ruling government too much discretionary power, and their principal effect may be to allow them to target and restrict political opponents.As social media corporations are driven to erase vast volumes of perfectly legal information, it may result in a decreasing area for online speech. So, the very least Twitter could do to get out of this mess is to come up with athorough planforfulfilling legitimate demands of the government while negotiating or contesting the legality of problematic elements of the new IT rules.
Hence, it makes no real difference if Elon Musk or Jeff Bezos buys Twitter. They will all be subject to the same terms and laws and have to abide by it to operate peacefully in any country. Without the government’s cooperation, no social media platform can ensure free speech. So, Twitter must soon comply with the new IT rules or take a stand and oppose them outright.Nevertheless, it’s in the hands of the respective government to ensure that the fundamental right of freedom of speech and expression is protected in order to foster the essence of democracy.
1 Student at The Tamil Nādu Dr. Ambedkar Law University
2 1950 AIR 124, 1950 SCR 594
3 AIR 2015 SC 1523
4 Shri Arindam Bhattacharjee vs The State of Tripura
5 (2018) 9 SCC 501. In this case the petitioners submitted that it is the duty of both the State and the Centre to ensure that minorities are not targeted due to misinformation and hatred in social media and stringent actions are taken.
6 Syed Khalique Ahmed – “Sedition cases against journalists”
7 Vasudha Venugopal- Sedition Law SC order
9 Diksha Madhok- “Twitter is a mess in India. Here’s how it got there”- https://edition.cnn.com/business
10 https://cdn.cms-twdigitalassets.com/content/dam/transparency-twitter/country-reports/india/India-ITR-May- 2022.pdf
11 Colm Quinn- ‘Twitter’s Free Speech Mirage’ https://foreignpolicy.com/2022/04/27/twitter-free-speech-elon-musk/
12 On February 25, the Centre framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in the exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
13 https://www.hindustantimes.com/india-news/india-made-app-koo-now-has-over-3-million-users- 101613043062298.html