Censorship is saying: 'I'm the one who says the last
sentence. Whatever you say, the conclusion is mine.' But the internet is like a
tree that is growing. The people will always have the last word - even if
someone has a very weak, quiet voice. Such power will collapse because of a
whisper’ – Ai Weiwei, Chinese artist and political activist, a thorn in the
side of the Chinese government.
By scrapping section 66 of the IT Act, the Supreme Court
merely did its duty, clarifying that the fundamental right to freedom of
expression and speech extends to the internet/social media.
The ruling could not have been anything else. For a simple
reason. You can arrest one person for a perceived internet indiscretion. You
cannot arrest a billion people for the same indiscretion. No law can regulate a
mass of people. Only democracy can.
Welcome to the age of the internet – and social media –
which has given us possibly the highest public platform ever for mass expression
of freedom of speech, ideas and opinion, banter and slander.
The court clarified that just because a communication in the
social media is construed by some to be vindictive or threatening the communicator
need not be sent to prison. Doing so would mitigate the person’s access to the
fundamental right of freedom of speech and expression.
The entire ruling of the Supreme Court is still to be read
in detail, but one hopes the ruling by Justices J Chelameshwar and RF Nariman
would eventually convey some basic truths to the executive and legislative arms
of India .
The first point relates to the mindset of the law-maker
politicians of India
that punishment is the panacea for all ills. This mindset of our politicians
has not yet adapted to the changed communication scenario where anyone and
everyone, not necessarily an Indian, is a communicator and the platforms which
deliver the communications know no national boundaries and are therefore beyond
conventional regulation.
Many of us have seen the various phases of communication
technology in India ,
from the age of telegram to telephone to the internet. Today the social media is as much a source of
news and information and entertainment as the traditional sources such as
newspapers, radio and television. Importantly, we are exposed much faster to a
greater number of ideas and opinions like never before. Some of these ideas are
good. Some are bad. Some, outright ugly. Some, tolerant. Some, intolerant. Such
a situation, in essence, is what freedom of speech and expression in an open
society means.
The arcane mindset of our politicians would want to regulate
such an environment in the vain hope that only regulation or censorship will
compel citizens to be tolerant. That is not the right way. The freedom to
express and speak also gives us the ability to challenge ideas and opinions
which we think and believe are wrong. Such challenges are the need of the hour.
Not section 66.
Self-regulation through such challenges is already
happening. As users we can flag communications which we find inappropriate. And
such content is removed by the social media sites which also ensure that real
extremes do not find their way into the internet world. Purists may argue even
this is a kind of censorship. To them I would say: Yes. But just because you
have total freedom to express yourself would you roam naked on the streets? Why
not? Because you can reason. Isn’t that self-regulation in a sense? So, no point splitting hairs. Suffice to say
there is a checks and balance system which is beginning to make its presence
quietly felt in the social media. No need for section 66. Let us be clear about
one thing: The greater aim is creating an environment for free exchange of
ideas and expressions rather than focusing on controlling the extreme fringe.
Let me quote from a portion of a brief submitted to the US
Supreme Court last year by the Reporters Committee for Freedom of the Press.
Intervening in a case – Elonis vs. United States – the Committee said:
“Public commentary is frequently meant to provoke—whether by urging listeners
to rethink their position on an issue or to take action—and this country has a
long history of protecting provocative speech.”
The case relates to a person called Anthony Elonis who was
given a prison term for posting what was construed as hostile and threatening
content on Face Book. Elonis challenged his conviction in the supreme court
saying it is an infringement of his rights under the First Amendment.
The arguments have closed in this case and the judgment is
expected sometime this summer. The case focuses on (a) how and when can a
communication in the social media be construed as a real threat and (b) whether
the communicator can be convicted if it is proved that any reasonable person
would regard the communication as threatening. This is the first time the US
Supreme Court has heard a case considering true threats and the
limits of speech on social media.
(Social media watchers the world over are eagerly awaiting
the outcome of this case given the fact that the United States Supreme Court
way back in 1997 had ruled that any regulation of the communications over the
internet were unconstitutional. In the Reno
vs. American Civil Liberties Union case, all nine justices of the apex court
unanimously struck down certain anti-indecency provisions of the Communications
Decency Act saying they violated the First Amendment’s guarantee of freedom of
speech. This was the first ever occasion the court had ruled on regulating the
internet. The ruling said the controversial provisions of the Act were
unconstitutional and unenforceable, “except for cases of obscenity or child
pornography, because they abridge the freedom of speech protected by the First
Amendment and are substantially overboard. The Internet is entitled to the full
protection given to media like the print press; the special factors justifying
government regulation of broadcast media do not apply”.)
This brings me to the second point. The Indian government
has reason to monitor the social media for situations where groups of people
with extreme positions may exploit the social media sites to create tension or
sway or even coerce public opinion . Such situations have come to pass,
specially during the run-up to the 2014 general election, some of them involving
groups reportedly with communal or terrorist affiliations. It is certainly
worrying.
So, what then happens to our premise that freedom of speech
and expression overrides all other Constitutional/national concerns? Is an act
of sedition or a direct threat to the security or integrity of the country to
be overlooked in order not to tamper with freedom of speech and expression?
In the US, there are exceptions to the First Amendment which
include inciting imminent lawless action, fighting or inflammatory words, true
threats, obscenity, child pornography, invasion of privacy, defamation and
intentional infliction of emotional distress.
However, the situation is a bit different in conflict-borne/torn
nations particularly in the developing world, where to some groups of people
the internet and the social media is a means to a dangerous end. The dilemma of
these nations, including ours, is how to find a balance between freedom of
expression and protection from divisive forces and incendiary actions. Yes,
violent or extremist content has to be monitored but such monitoring, even if
well-intentioned, will have damning consequences for our freedom.
The secondary dilemma is who will decide what is violent or
extreme content? Some content, like videos showing beheading of people or
maiming animals or raping girls, is certainly violent. But what about that
content which is not so extreme but still raises alarms?
With section 66 now gone, we know that regulation is not the
answer. As that is the best deterrent our politicians can ever come up with, we
need not look up to them for an alternative. It is a waste of time. We have to
check with the Supreme Court. What will it say?
It is not an easy dilemma for the court to solve. For, the
judiciary is bound by jurisprudence. Writing in Justia, a well-known American
legal commentary website, Sherry F. Colb, Professor of Law and Charles Evans
Hughes Scholar at Cornell Law School, sums up the conundrum before the US
judiciary (or any other judiciary for that matter): “In Elonis vs US, the
question is whether the person who utters a true threat must
subjectively intend to bring about fear of bodily harm or death or
whether it is enough that a reasonable person uttering the words in
the context would foresee that his words would be interpreted as such a threat.”
Having said that we should look up to the supreme court, I
ask: Should we leave it to the courts? Are we not a democracy where the
people’s will is supreme and which is represented by the legislature? There we
go again, facing a dilemma. The legislature is incapable of broad thinking.
Depending on judicial intervention amounts to surrendering our democratic
rights. What do we do?
We are all communicators in this internet age of ours. Let
us frankly discuss how to resolve these dilemmas. The New Yorker in its
December, 2014 issue raised some of the questions pertinent to the Elonis vs. US case which
are also pertinent to us in the Indian context. “When does communication cross
the line into being an illegal threat?...Under what circumstances might a Face
Book post be considered a threat?....What kind of communication constitutes a
threat, and does it make a difference whether the communication was made online
or offline?”
These are questions which may not be of immediate concern to
us. But rest assured, one day they will be.
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