Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own.
The social media platform Twitter has been deprived by the Indian Government of the ‘safe harbor’ under section 79(1) of the Indian Information Technology Act.
This means that Twitter and its personnel now face civil and criminal liability for its messages posted on its platform.
The reason given by the Indian Government for this action is that Twitter has not complied with the provisions of the new Information Technology Rules, 2021 e.g. by arranging the Grievance Redressal mechanism mentioned in rule 3(2).
Rule 7 of the new Rules states the Government of India may deprive an intermediary of its safe harbor if it does not comply with the Rules.
It is submitted that many of the provisions in the Rules amount to a drastic curtailment of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution.
For instance, Rule 4(2) requires disclosure to the Government of the identity of the first originator of a message which has been posted. This is like asking a journalist to disclose the source of his news, something no reputed journalist would do.
The first proviso to rule 3(d) requires the intermediary to remove any message it has posted within 36 hours of an order of the Government.
Rule 3(1)(b) states that nothing should be displayed in the platform which is defamatory or threatens the security, unity, or integrity of India. But does criticism of the government amount to threatening the security or integrity of India? In a democracy surely people have the right to criticize the government. But in India those who criticize it are often arrested and charged under the sedition law ( section 124A of the Indian Penal Code ), the Unlawful Activities Prevention Act, etc and kept in jail for long periods. So it seems the Government thinks that criticizing it threatens the security and integrity of India.
The same provision also says that anything which threatens public order must not be published. But ‘public order’ is a vague expression. The government may say any criticism of it threatens public order.
Rule 3(1)(b)(vi ) also requires that no message which is patently false or misleading should be published. But what is false or misleading may be highly contentious and debatable.The Government of India often thinks that any criticism of it is false and misleading.
Moreover, even assuming that the message is false or misleading, it can surely be refuted by posting the counter version.
As observed by Justice Brandeis of the US Supreme Court in Whitney vs California, 1927 :
” Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, the discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.
They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form “.
So the reply to false news is by refuting it by correct news, not by banning it.
Twitter and other social media platforms serve a useful function of communicating news and ideas all over the world. These intermediaries do not create the messages that are posted. They are created by third parties. The intermediaries only permit placing them on their platforms.
Also, the intermediaries, including Twitter, have their own mechanisms which filter out messages which may encourage hate, violence, terrorism, drug and women’s abuse, paedophilism, etc.
Every morning I get up I turn on Twitter, Google, etc on my computer to see what is going on in the world.
It is submitted that the new Rules which have been made are really designed to choke freedom of speech and expression by an embattled government which is facing increasing hostility over several issues, e.g. mishandling of the covid crisis, rising unemployment, farmers agitation, etc and is apprehensive about the fate of the coming elections in UP etc in February 2022, which will be a precursor to the Parliamentary elections of 2024.
The mainstream media in India, print, and broadcast, have already been largely gagged. Now it is the turn of the social media.