Can’t compromise individual’s privacy in digital age, says CJI
Delivering the 14th Justice VM Tarkunde Memorial Lecture in Delhi, the CJI delved into the debate between disinformation, or fake news, and free speech
New Delhi Hate speech and disinformation online can never enjoy the protection of constitutional free speech,Chief Justice of India (CJI) Dhananjaya Y Chandrachud said on Friday, adding that there could be no compromising on an individual’s privacy in the digital age, regardless of their socio-economic status, in the name of access to welfare entitlements.
Delivering the 14th Justice VM Tarkunde Memorial Lecture in Delhi, Justice Chandrachud also said that privately owned social media corporations donning the role of arbiters of free speech by deciding what goes on platforms can have “disastrous” effects in the absence of any accountability.
“Demonstrably, false facts are not protected by traditional free speech theories... tolerating the proliferation of fake news erodes the free and open debate that democracy intends to protect... Disinformation therefore has the power of impairing democratic discourse forever, pushing a marketplace of free ideas to the point of collapse under the immense weight of fake stories,” the CJI said.
“As the world moves online, our battles to uphold civil liberty must also follow suit,” he added, speaking on the topic “Upholding civil liberties in the digital age: Privacy, surveillance and free speech.”
In his 50-minutes lecture, the CJI delved into the debate between disinformation, or fake news, and free speech.
”All liberal democracies purport to protect the right to free speech and expression. However, what remains contested is the application of this principle to concrete situations.In dealing with content moderation of online speech, courts are faced with a complex moral dilemma to balance freedom of expression and prevention of harm caused by misinformation,” he said.
Across the globe – be it Libya, the Philippines, Germany or the United States – the elections and civil society have been tarnished by the proliferation of fake news, the CJI said, calling for new theoretical frameworks to govern free speech on the internet, especially social media.
He also spoke extensively about privacy and welfare.
“It is often contended that the right to privacy is a privilege of the few and an individual must make a choice between the right to privacy and the welfare entitlements provided by the State.I would like to dispel the claim that economic status and access to welfare entitlements are more important than civil and political rights for socio-economically disadvantaged communities,” he said.
The digital era, he argued, is a realm where information is both currency and vulnerability. He pointed out instances where algorithms of facial recognition technology was found to have inherent biases in identifying darker-skinned women, ethnic minorities and transgender individuals in a study conducted in the US.
“All individuals, regardless of their socio-economic status are deeply impacted by violations of the right to privacy, autonomy, and intimacy,” he said.
Justice Chandrachud said the preservation of civil liberties transcended the confines of mere legalities and emerged as the essence of democratic ethos. “This crucial juncture demands a delicate equilibrium between privacy, surveillance, and free speech, especially in the vibrant tapestry of India, where the implications hold profound significance.”
In a landmark judgment in 2017, the Supreme Court declared privacy as a fundamental right. In August this year, Parliament passed the Data Protection Bill, 2023 that laid down obligations of people, companies or entities (data fiduciaries) that collect or store data and specified the rights and duties of people who supplied the data. It also provided for a complaint mechanism against data fiduciaries before the data protection board which can impose financial penalties for breach of rights, duties and obligations.
The CJI, who has been a strong proponent of integrating technology with judicial processes, also spoke of Artificial Intelligence (AI).
“Unchecked algorithms used by tech giants compound privacy concern... Surveillance analytics, despite its benefits in health care and crime prevention, prompts substantial privacy concerns. Practices such as web cookies and social media data harvesting have raised alarm bells,” he said.
Pointing to the flip side of the free speech debate, the CJI pointed out that digital liberties were being fought for in a public space that was privately owned -- with social media corporations wielding immense power as the arbiters of social media content.
”With corporations wielding such immense power, there is an immense amount of trust placed on them to act as the arbiters of acceptable and unacceptable speech – a role that was earlier played by the State itself. This can have disastrous effects,” he said.
Unlike State actors who are held accountable by the Constitution and the electorate, the CJI said social media platforms are relatively unregulated. “This is another novel challenge that digital liberties activists have to find unique solutions to,” he added.
Justice VM Tarkunde was a former judge of the Bombay high court and is remembered as a human rights crusader and a humanist leader. He died in 2004 at the age of 94.