How can we demand trust and accountability from the state as it regulates speech online, asked MediaNama’s Editor Nikhil Pahwa during the closing minutes of the “Regulating Speech and Content” session at last Friday’s MarketsNama conference.
“I have a very short answer to this question … the state should follow the Constitution seriously,” replied the Internet Freedom Foundation’s Tanmay Singh. “If it just does that, we’re all golden.”
Pahwa’s question comes ahead of India’s much anticipated Digital India Act—an omnibus law set to replace India’s dusty IT laws, and among other things, regulate speech online. The Act presents an opportunity to refine the many ills of the government’s current approach to content regulation online—which has been criticised by experts for its opaque tightening of free speech online. The panel debated on how the Act can regulate India’s dynamic content marketplace, without compromising on the government’s constitutional responsibility of protecting fundamental rights.
Read more: How the Digital India Act Can Protect Free Speech Without Taking Away Platforms’ Safe Harbour
“We still follow the vertical application of fundamental rights [in India],” SFLC.in’s Radhika Jhalani concluded. “That means that the government is the one that is responsible for violating our fundamental rights, not platforms.”
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Notably, last year’s amendments to the IT Rules, 2021, cast legal obligations on platforms to respect users’ fundamental rights, including speech.
MediaNama hosted this discussion with support from Salesforce, Google and Mozilla. Internet Freedom Foundation, and our community partners, the Centre for Internet and Society and Alliance of Digital India Foundation.
Current Digital India Act consultations lack coherence: “In terms of the Digital India Act, we have to go back and look at how the IT Act was made,” recalled the Internet Freedom Foundation’s Director, Apar Gupta. “The IT Act was a derivation of a UNCITRAL [United Nations Commission on International Trade Law] process, which was .. [looking at] the recognition that could be given to electronic transactions. Commerce was at its core and you built things around it to harmonise and give legal sanctity to click through contracts, electronic governance, digital signatures, things like that. You need to have a coherent basis of thinking … you have presentations [and consultations now for the Digital India Act] which are being done without a sense of coherence. You don’t have a white paper, a green paper. That last session of Parliament is in August and I don’t know what’s the process [with India’s tech laws, like the Act], or why it’s being done. This is also a call out to our great reporters—why aren’t these questions being put forth [to the government]?”
Digital India Act should be guided by basic principles: “My fundamental [point] is that the Internet is going to change and the law is never going to catch up with it,” surmised Jhalani. “At least, that’s what we’ve seen in the Indian scenario. So, there have to be some unimpeachable values that delegated legislation [regulating free speech online] should follow.”
Jhalani suggested the principles laid down in the Supreme Court’s 2017 Puttaswamy verdict reaffirming the right to privacy as a fundamental right. The Court had held that privacy can be restricted if the government meets the three-fold test of “legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them”.
“Think of it, if we had all these principles in place, there would not have been a confidentiality clause in Section 69A [which gives the government blocking powers],” Jhalani continued. The clause renders blocking orders confidential and has been criticised for reducing transparency over censorship orders on the Indian Internet. “There cannot be delegated legislation, or any substantive legislation on the Internet, which does not have certain basic principles in place.”
Digital India Act should improve transparency over content blocking online: The book-banning process under Section 95 of the Code of Criminal Procedure can be a starting point for better transparency over content blocking, suggested Sachin Dhawan, of the National Law University of Delhi’s Centre for Communication Governance. “The idea is that there the government publicly announces [the ban]. So, it’s not just the user [or person] whose speech has been affected, but even you or me, just general members of the public who can challenge [the ban] … Shreya Singhal [the Supreme Court’s 2015 judgment upholding the constitutionality of the government’s content blocking powers] pointed out that the right to free speech doesn’t just include the right to speak but the right to receive speech.”
Dhawan added that the current process for emergency blocking of online content by the government could also use an upgrade. The panelists had previously noted that users are not notified that their content has been blocked, nor are they provided with a hearing before the government to explain themselves.
“Even if you give the user a hearing, it doesn’t really matter,” Dhawan argued. “Because the way the law is [currently] written, is that when the designated officer [in charge of handling blocking orders] goes to the Secretary [of the IT Ministry for the final sign-off on the blocking order], the Secretary can overrule the Committee [that approved the blocking order]. In terms of how you make this better, I can’t think of a better answer than to have some sort of Court oversight. These challenges should ultimately go to Courts and they should lay down standards for when an emergency power has been used and how to .. [reign in] that power.”
How can the Digital India Act regulate content that is lawful but awful? During past consultations on the Act, the junior IT Minister Rajeev Chandrasekhar noted that currently legal but harmful actions under Indian IT laws may become illegal under the Act. An audience member latched on to a similar proposition, asking how such speech should be regulated by platforms and the government.
“I think a lot of things have changed with the coming of the Internet,” observed Singh. “For example, on Twitter, the same thing can be said millions and millions and millions more times … So, I think that a lot of the free speech principles we’ve grown up with in law school, like you absolutely have the free speech right to tell a lie, that may change just given the [different] impact of one person telling a lie offline versus millions of people telling that same lie online. The difference in impact may actually change our understanding of free speech principles.”
Content blocking should be as narrow as possible: Copyright infringement has been a hot-topic regulatory issue for platforms and governments, especially when it comes to blocking the sites hosting this material.
“There are two approaches when we look at [regulating] copyright infringement online,” observed Jhalani. “One, is to completely block the entire website infringing upon the [copyrighted] material. The other is a partial block, where only the content infringing upon copyright is identified [and blocked]. This is ideally the approach to be taken. Again, if you use a broader approach and just end up banning everything, that leads to over-censorship. A narrower approach should be the way forward.”
How should the Act approach the hottest tech of them all—generative AI? “My humble submission is that ChatGPT is just fancy autocomplete,” joked an audience member responding to Pahwa’s question on whether the platform should be held liable for the content it generates. “So, whatever regulation applies to autocomplete should apply to ChatGPT.”
Are the government and the Act capable of regulating speech on Web 3.0? “There’s an assumption [in this discussion] that there are intermediaries that you can catch and do something about,” noted an audience member. “This assumes that you can block these platforms. But there is an intermediary now, Web 3.0, which is what the future is. It’s going to be peer-to-peer. There is no intermediary that you can go to and say ‘take this down’. A classic example is Wikipedia, which was blocked in Turkey. They launched it on Web 3.0, there is no server to go to. Then what do you do? … Regardless of what the government wants, the technology will move forward. People will use what’s most convenient to them.”
Pahwa added that “even if you look at federated speech, how would you convince every government in the world that is focusing on centralisation of speech as a means of exercising control over the Internet [about these platforms]? The technology is fighting [back here]—it’s a political battle between it and the government.”
“From a historical perspective, this is exactly what was said about the [early] Internet,” argued Dhawan. “That it’s borderless, you can’t control it, and governments can’t regulate it. [Now] See where we are today … One theme does emerge here … people have seen that whatever is coming up as the next big thing, what unfortunately ends up happening is governments and corporations end up capturing it. Users are the ones who suffer. That’s been the pattern so far, but of course, it can change.”
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