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Let’s talk about trolls | Laws flounder when there are threats to rape or kill

Freedom of expression doesn’t include the right to someone else’s attention or mindspace — though trolls often invoke free speech when blocked.

india Updated: Apr 21, 2017 07:23 IST
Freedom of expression doesn’t include the right to someone else’s attention, writes Karuna Nundy.
Freedom of expression doesn’t include the right to someone else’s attention, writes Karuna Nundy.(Illustration: Rahul Krishnan)

When the case against online free speech began, the additional solicitor general handed some lurid pictures to the bench: of gods and prophets in obscene positions. The images, designed to offend, were meant to show the court what decent folk must suffer online, and why a too-broad law criminalising the “annoying” and “inconvenient” must remain.

We — counsel for civil liberties organisations and media technology companies — argued for free speech on the internet. The law, which made criminals of those who shared the startling pictures before us then, is still slowly crushing a professor of Jadavpur University in a criminal case for sharing a political cartoon based on a children’s story by Satyajit Ray.

The court struck down the law, and in doing so carried forward the deep values of free speech jurisprudence.

What then of the trolls — and others who distribute online offensive pictures of gods, make threats, and systematically target women and minorities? Troll as a word conjures up a lonely raging soul, but of course hatred isn’t spread by solitary malevolents alone. Terrorist group IS has proven nimble in moving between social media platforms, and using encrypted tools like Telegram and TOR.

At home, the BJP’s 5,000-strong IT cell that helped win the UP elections included, among its legitimate campaign work, trending the hashtag #KasabAgainstHindu. A member of the UP IT Cell told Newslaundry: “A dangerous online army of lakhs are following us, which is not even in our control.”

How then can a media technology company, the legal system and a speaker online limit hate speech without hacking away at free expression?

Media tech companies are obliged contractually to stick by their terms of service, but they struggle with the volume of data users produce. And the largest companies have a bit of a nationality problem.

Facebook, Twitter, YouTube and Microsoft have signed up to the European Commission’s code of conduct that includes a commitment to review most valid notifications for removal of illegal hate speech in less than 24 hours. This has prompted focussed technological innovation and better staffing for European markets.

In the US, new tools on Twitter to deal with harassment were developed quite fast after Robin Williams’s daughter was brutally harassed following his suicide. Death-and-rape threats in India haven’t had quite the same results from the headquarters.

Last month, Twitter developed an algorithm to weed out abuse. Google is testing an artificial intelligence tool called Perspective to help editors of media companies maintain “civil and thoughtful” user engagement.

Algorithms are essential to manage the volume of speech produced each day, but they make mistakes. To make sure “false positives” aren’t censored — speech that’s not unlawfully abusive or against terms of service — there’s no way around robust staffing of safety teams.

Sunlight’s the best disinfectant here as much as anywhere else. Facebook and Twitter already publish transparency reports on state censorship. Tech media should consider transparency reports of speech they censor themselves.

Let’s Talk About Trolls | Cyber bullies are the same as goons who threaten in real life

Twitter’s population is larger than the United States, Facebook has more people than the US and Europe put together. Holding elections on Facebook, Twitter and other platforms for democratic user representation, say on appeal committees, would be welcome.

Freedom of expression doesn’t include the right to someone else’s attention or mindspace — though trolls often invoke free speech when blocked. In the Indian social context, trolling is much worse against say, women, Muslims and homosexual folk or indeed gay, Muslim women. Mental space is precious, and trolls by definition don’t take ideas forward. An abusive or even just a boring and repetitive handle is easier to block or mute than swatting a fly.

For threats and certain kinds of abuse there is the criminal law.

Most laws criminalising speech are oppressive, though. And wouldn’t get past the standards of the progressive constitutional bench judgments of the Supreme Court or indeed the Shreya Singhal judgment, the online free speech case described above.

A lot of the laws criminalising speech silence legitimate speech, against the doctrines of overbreadth and chilling effect that should not allow such laws to stand.

Ultimately, it’s empirical data on the impact of hate speech that would demonstrate whether and how they incite violence or discrimination, and if therefore, they are tailored to the ends they seek.

A recent example of egregious criminal process initiated against online speech is the FIRs registered against Prashant Bhushan, after he made a comment about god Krishna. There is no criminal offence made out in his tweet, yet the FIR was registered.

Even for a senior lawyer, the process of seeking an FIR quashed is the punishment itself. The Supreme Court limits on anti-speech laws such as S. 153A and 295A need to be included in police’s versions of the Penal Code to limit their overbreradth.

If the law at the very least prevented the filing of FIRs where there are apologies and swift takedown of content, the jurisprudence of online hate speech would be a little more reasonable in its restrictions.

By contrast, where there are threats to rape or kill, law enforcement flounders. Bizarrely, Section 506 on personal threats is bailable in New Delhi, Section 354D on physical and cyber stalking is also a bailable offence. Online media companies don’t disclose user data fast enough, and as soon as the IP trail leads to a server outside the country the trail peters out.

Criminal laws against hate speech
  • Section 509 IPC: Words or gestures intended to insult the modesty of a woman, or intrude on her privacy
  • Section 354A: Unwelcome sexually coloured remarks
  • Section 503/ 506: Threats of injury to a person, his or her reputation or property, or to the person or reputation of any one in whom that person is interested
  • Section 354D: Cyber and physical stalking
  • Section 66E IT Act: Capturing, transmitting pictures of private parts without consent
  • Section 3, SC/ST Act: Intentional insults or intimidation with intent to humiliate a member of a scheduled caste or scheduled tribe
  • Section 295A: Deliberate and malicious acts intended to outrage feelings of a class by insult to religion, with a calculated tendency to disrupt public order
  • Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. There must be two groups between whom enmity is being spread

While laws and police are national, most cybercrimes are transnational, even if just via VPNs. Our cyber cells need to work more closely with Interpol, who support police forces worldwide in a variety of ways, including digital forensics and training officers.

Developing jurisprudence on civil damages for the invasion of privacy, sexual harassment, and defamation — subject to proof of damage on the face of the plaint — would in many instances provide redress more reasonable than criminal restrictions on speech.

In the past several years, the norms of Indian conversations both online and offline have shifted dramatically against religious minorities, seculars and progressives, while there have been positive shifts in some pockets towards the equality of genders and sexualities.

Those who believe in a universal right to life have been startled out of their complacency by the normalisation of Pahlu Khan’s murder, and by Mohammad Ikhlaq’s murderer being draped in the national flag.

I engage publicly — online, on television and through public lectures — because moving societal norms towards equality, freedom and rule of law is part of the work of creating justice.

As a lawyer I am trolled far less than others, but after one discussion of the Ishrat Jahan case, I got hundreds of violent messages, including wishes that my family would die in a terrorist attack. This was during the court holiday, and I had some time. I blocked the incorrigibles and warned the violent, made jokes against the sillier misogyny and logically countered those who had reasonable questions.

Many people came forward in support, some in admiration, because even though I am a lawyer, every time a woman deals effectively with trolls there are others watching and strengthened to speak their own truths.

In an age when secularism is bigotry, ignorance is power and equality is dominance, clear voices rising above the discordant cacophony can move norms towards freedom. And freedom is why the caged bird sings.

Karuna Nundy is a lawyer who represents individuals facing criminal cases for speech online, civil liberties organisations and technology media companies.

This piece is part of HT’s new campaign, Let’s Talk About Trolls, which focuses sharp attention on online abuse and bullying. Share your views with us at letstalkabouttrolls@hindustantimes.com or @htTweets with #LetsTalkAboutTrolls