Protecting the Power of the Keystroke: Key Takeaways from the Indian Supreme Court’s Decision Striking Down Censorship of Cyber Speech

(C) John Ward
(C) John Ward

Over the last two decades, the internet has fundamentally transformed the ways in which individuals communicate and has emerged as one of the most important sites of heated contestations about the contemporary challenges that communities across the globe are confronting. Not only has the internet allowed citizens to fundamentally restructure the meaning of democracy by promoting ‘thick’ citizen engagement at an unprecedented level, but it has also emerged as a powerful vehicle for social transformation in closed autocratic societies – it is not for nothing that the overthrow of former Egyptian President Hosni Mubarak and former Tunisian President Zine El Abidine Ben Ali has come to be described as the ‘Twitter Revolution’. Indeed, as Philip N. Howard and Muzammil M. Hussain have noted in their 2013 book titled ‘Democracy’s Fourth Wave? Social Media and the Arab Spring’, social media acted as the most important conduit of communication for social groups during the Arab Spring, helping citizens “build extensive networks, create social capital and organize political action with a speed and scale never seen before.”

Even as the Internet has provided citizens new opportunities to structure and shape social conversations, it has posed a new set of questions pertaining to the scope and limits of the right of free speech. More specifically, the increasing use of the internet for spreading hate speech, rumours of violence to exacerbate existing social conflicts and misogynistic messages has brought into sharp focus the need to make important policy choices about how the right of free speech on the internet should be structured and delimited. Most countries impose reasonable restrictions on free speech for, inter alia, preserving national security and preventing incitement to violence, but the heavy-handed imposition of such restrictions in cyberspace is widely viewed as being problematic because of the Internet’s unique potential to broaden and deepen the meaning of free speech.

In order to situate the efforts of countries to regulate free speech on the internet in a broader international context, it would be apposite to remember the mandate of Article 19 of the Universal Declaration of Human Rights which makes it abundantly clear that the right of free speech applies with equal force on all media and across frontiers. It is worth remembering, though, that the Declaration merely has persuasive value and lacks the binding force of domestic legislation. Similarly, Article 19(2) of the International Covenant on Civil and Political Rights unequivocally states that every individual has the right to share and exchange ideas of all kinds not only in written or oral form but also in any other media of their choice. It reads as follows: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Several other regional instruments contain provisions modeled after Article 19(2) of the ICCPR that are aimed at securing the freedom of expression on all media, most notably Article 10(1) of the European Convention on Human Rights, Article 13(1) of the American Convention on Human Rights, Article IV of the American Declaration of the Rights and Duties of Man and Article 9 of the African Charter on Human and Peoples’ Rights. It is pertinent to note that the American Convention on Human Rights, vide Article 13(3), explicitly prohibits the use of indirect methods for curbing free speech through the imposition of technical restrictions on new technologies that are being used for the dissemination of opinions.

Furthermore, the European Court of Human Rights stated in the case of Autronic AG v. Switzerland that the right of freedom of expression “applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive information.” Similarly, owing to the strong free speech protection guaranteed by the First Amendment in the United States, courts have consistently struck down laws that seek to regulate cyber speech. This is best evidenced by the 1997 decision of the United States Supreme Court in Reno v. ACLU in which the Court held relevant provisions of the Communications Decency Act (CDA), that sought to prohibit the transmission of “indecent” and “patently offensive” material to minors, unconstitutional on the ground that the provisions lacked the requisite precision and would prevent adults from accessing a large amount of protected speech. Similarly, the CDA and the Safe Harbour provisions of the Digital Millennium Copyright Act provide unparalleled protection to Internet intermediaries as a result of which websites like Ripoff Reports, which are known for hosting defamatory content, have been repeatedly not held liable.

In a landmark resolution in 2012, the UN Human Rights Council lauded the rise of the internet as a powerful democratizing force and urged all states to structure their legal regimes in such a way as to promote free speech in cyberspace. Many thinkers argue that the strongest manifestation of the principles that undergird this resolution can be found in Brazil’s new internet law, Marco Civil Da Internet, which recognizes the importance of net neutrality and digital privacy in protecting cyber speech and acknowledges that an open and free internet lies at the heart of a thriving democracy.

However, it is dismaying to note that most countries have, advertently or inadvertently, violated their obligations under international law by imposing vaguely defined restrictions on cyber speech that, in effect, give law enforcement agencies unbridled power to punish individuals for posting material that they, subjectively, find unacceptable. Qatar, for example, prides itself on being an ‘information society’, and yet criminalizes publication of online content that is deemed harmful to the country’s “social values” or “general order” as well as the sharing of such content, thereby implying that an individual could face a jail term for a mere Retweet. Similarly, Turkey, which has more than 40 million Internet users, prohibits the publication of online content that is regarded as an “insult to Turkishness” or undermines the reputation of Atatürk, the founder of the modern Turkish state. In 2012, in the case of Ahmet Yildirim v. Turkey, the European Court of Human Rights held that the existing legal framework in Turkey is inadequate to provide robust protection to cyber speech and can easily be misused. Turkey’s desire to curb free speech on the Internet is best evidenced by the imposition of a ban on Twitter in 2014, following a cryptic warning by the country’s President, Recep Tayyip Erdogan, that the government would “eradicate Twitter”.

Furthermore, it is no secret that, after retaking the presidency in 2012, Vladimir Putin has made a concerted effort to systematically curb cyber speech in Russia, by making it compulsory for bloggers who have more than 3,000 readers to share their residential address and other confidential details with the government, in a bid to thwart the use of the internet for criticizing the Kremlin’s repressive policies. Finally, a large array of other countries like China, Cuba, Thailand and Kyrgyzstan have come in for sharp criticism for their efforts to regulate the internet in ways that undercut its empowering potential.

It is no surprise, then, that the Indian Supreme Court’s decision in Shreya Singhal v. Union of India (24 March 2015), holding the censorship of cyber speech to be unconstitutional, has been widely hailed as the most promising development in recent times in a cause that otherwise seems all but lost. The decision is all the more significant because India is home to 300 million Internet users, making it the second largest country in the world in terms of Internet population. Furthermore, the internet has played an indispensable role in shaping the course of all significant national events in recent times, most notably Prime Minister Narendra Modi’s thumping electoral victory in 2014, which has largely been attributed to his Mission 272+ Internet campaign, and the anti-corruption crusader Anna Hazare’s campaign for the institutionalization of a robust legal architecture to curb corruption which was largely driven by social networking sites.

Against this backdrop, it would be instructive to look at the nuances of this landmark decision pertaining to the constitutional validity of Section 66A of India’s Information Technology Act which criminalizes cyber speech that is, among other things, “grossly offensive”, “menacing”, “annoying” or “inconvenient” with up to three years of imprisonment. Holding the section unconstitutional, the Supreme Court cited the example of Mark Antony’s call to mutiny against Brutus to put forth the proposition that the mere advocacy of unpopular views and ideas cannot be criminalized unless it amounts to incitement (para 44). Further, the Court held that the provision, which does not clearly define the forms of cyber speech that are prohibited, has been structured in such a way that “any serious opinion dissenting with the mores of the day would be caught within its net” (para 83). Moreover, since terms like “annoying” and “inconvenient” are so capacious in scope, the Court held that the provision totally freezes free speech on the internet, as most people are likely to self-censor themselves in order to avoid inadvertently attracting its mischief (para 90). In addition, while analyzing the constitutionality of the government’s power to block websites, the Court categorically stated that blocking orders must clearly set out cogent reasons for the government’s decision and must be issued after giving the intermediary and, where possible, the originator of the content an opportunity to put forth their viewpoint (paras 109 and 110). Finally, the Court stated that intermediaries like Facebook and Twitter can be punished for a failure to comply with a takedown request only when the request originates from the government or a court, as it is neither feasible nor fair to expect them to expeditiously respond to the large volume of private takedown claims that they receive (para 117).

While there is no doubt that this decision, by removing legal impediments to the maintenance of an open and inclusive internet, will go a long way in promoting unconstrained social conversations that are critical for maintaining the vitality of the world’s largest democracy, it can also play a pivotal role in reversing the worrying global trends in the context of internet censorship by helping secure the right of free speech on the internet on firmer legal moorings in four important ways.

First, by underscoring the importance of removing restrictions that impede the free flow of opinions in the marketplace of ideas while upholding the government’s power to block websites in limited circumstances, the decision strikes a perfect balance between the need to protect cyber speech on the one hand and to curb pernicious practices on the internet on the other. At a time when most countries are struggling to effectively balance these competing claims, the decision offers a practical and realistic solution which can be replicated in other similarly situated countries.

Second, the Supreme Court, in its decision, referred to the practice of holding intermediaries liable only when they fail to comply with judicial or administrative takedown orders that is prevalent in Argentina, before applying the same principle in the Indian context. Therefore, this decision not only provides greater legal legitimacy to the practice of effectively circumscribing intermediary liability, but also arms intermediaries with a powerful precedent which can potentially help them in securing favourable rulings in other jurisdictions. Third, even though the Court did not make any explicit reference to the international human rights standards on cyber speech mentioned earlier, it is submitted that the judgment can play an instrumental role in increasing the legitimacy and persuasive value of those standards not only because it is guided and informed by the principles that undergird those standards, but also because it effectively uses those principles to structure a robust solution in consonance with the needs and complexities of an exceptionally large and diverse society.

Finally, and most crucially, as Evgeny Morozov has noted, the internet is used to strengthen existing authoritarian power structures just as it is used to increase citizen participation in democratic elections; it is used as a tool of oppression as well as liberation. Therefore, this decision brings into sharp focus the need for democracies to engage with these issues in a systematic manner in order to develop strategies aimed at fostering a culture of semiotic democracy in cyberspace, sans which the potential of the internet as a democracy-enhancing tool cannot be fully realized.

In sum, the international community would be well served to emulate the principles that underpin this judgment if the Internet is to remain a platform for “agreeing and disagreeing, gossiping and shaming, criticizing and parodying, imitating and innovating, supporting and praising.”

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