HC judgment affirms the need for balance while regulating online speech
India has the opportunity for global adaptation through formulation of laws that balance free speech with action against fake news and hate speech.
Life is nothing like what it was even a couple of decades ago. From airing views among our peers and eagerly waiting for a newspaper to respond to a letter, the focus of public discourse has shifted to social media and microblogging sites, catering to a global audience. These platforms have given wings to our fundamental right to free speech and expression. Naturally, we also expect this freedom to be unfettered and protest any restraints thereto. It is, therefore, no surprise that the Karnataka high court’s recent judgment in X Corp vs Union of India generated substantial public interest. Ruling on a petition by Twitter against government orders to block some users, the court agreed with government authorities and clamped a fine of ₹50 lakhs on the American company.
The relevant issues here are multiple and complex. Global solutions to combat the viral spread of fake news, misinformation and other kinds of misuse and abuse of social media platforms assume more importance by the day.
Hence, regulatory mechanisms, and internet and platform accountability, are some potential solutions that several countries, including India, are experimenting with. Monitoring and blocking of online content are the most powerful tools currently in the hands of enforcement agencies.
India lacked sufficient criminal provisions to combat cybercrimes under the Information Technology (IT) Act, 2000 but gained some teeth through amendments in December 2008 that included Sections 69A and 69B; in 2015, when the Supreme Court struck down Section 66A of the IT Act in Shreya Singhal v. Union of India, it simultaneously upheld Section 69A, which is applied for blocking online content. The court’s decision was based on the checks and balances incorporated in the rules framed under the section. The Twitter case, therefore, not only questioned the propriety of the blocking but also the procedures for issuing such directions.
The high court didn’t agree. It emphasised that foreign entities have to comply with Indian laws and that a party cannot unilaterally decide whether it will obey a government order; that such action will have punitive consequences is also spotlighted with the court imposing a heavy fine on Twitter.
But that is not all. The court also indicated that it is for the users to stand up for their fundamental rights, and emphasised the need for reasoned orders and proportionality, in line with the Shreya Singhal verdict. The purposive interpretation principle applied to decide on blocking not just messages but entire accounts may become the focus of an appeal, but as it stands under this judgment, the extent of powers under extant laws is strengthened.
For users, the learnings are several. While the right to free speech is sacrosanct, it is subject to reasonable restrictions — and if this is true in the real world, there’s no reason it shouldn’t be so in the virtual one. The mere access to free online resources does not entitle users to misuse or abuse the same. The discussion on tracking or tracing originators, and platforms encouraging verified accounts, is likely to be reignited. Expect more debate on the rights of users to be heard against blocking orders, clarity on the procedures to contest, doctrine of proportionality, and the extent to which users’ free speech rights can be curtailed.
For the government, which is contemplating a Digital India Act to replace the existing IT Act, this decision is timely. It helps in reviewing existing provisions and rules, and correcting course where needed, incorporating clarity, particularly to protect user rights, and removing ambiguity if any, in procedures.
Vasudhaiva Kutumbakam (the world is one family) has often been invoked in different contexts in recent years, and this judgment uses it to spotlight the borderless nature of the internet. With forthcoming global initiatives, particularly that of the United Nations to provide the world with soft laws for cybercrimes by 2024, India now has the opportunity to offer precedents for global adaptation through formulation of laws that balance free speech with much-needed action against fake news and hate speech.
NS Nappinai is an advocate in the Supreme Court and founder, Cyber Saathi. The views expressed are personal