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Why the Delhi HC Dismissed A Plea Seeking Action Against Anti-Rohingya Speech on Facebook, Including Pre-Censorship

” … prior censorship of any publication of Rohingyas on Facebook is an example of ‘a treatment that is worse than the disease’,” the Delhi High Court bench observed.

The Delhi High Court recently disposed of a petition seeking to tackle hate speech against the Rohingya community on Facebook, by recommending that the Indian government be conferred with pre-censorship powers for any Rohingya-related posts.

“That there should be prior censorship of any publication of Rohingyas on Facebook is an example of ‘a treatment that is worse than the disease’,” observed Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora on January 30th.

The two Delhi-based Rohingya petitioners also alleged that Facebook’s algorithms actively promoted anti-Rohingya hate speech to shore up profits, and sought court directions to prevent the same.

Facebook has statutory obligations in India to take down ethnic or religion-related hate speech under the country’s platform regulation rules, the IT Rules, 2021. The rules also provide a grievance redressal system for users to appeal hate speech-related content moderation decisions.

However, there was no allegation in the petition that Facebook hadn’t abided by these laws, the order noted. The petitioners also did not dispute the platform’s claims that it had already taken down the Rohingya-related hate speech they were concerned with months before the plea was filed.

“It appears from the writ petition that the Petitioners were not aware, prior to today’s hearing, about either the legal obligations of the social media platforms to not promote dissemination of hate speech and exercise due diligence as stipulated in Rule 3 or the existence of the regulatory framework of IT Rules, 2021 and the grievance redressal mechanism provided under the said Rules or the power of the Union of India to issue blocking orders under Section 69A of the IT Act,” the January 30th order observed. “It is not the contention of the Petitioners that the said redressal mechanism is not efficacious. Consequently, this Court is of the opinion that in view of the aforesaid Rules the direction sought by the Petitioners to Union of India to restrain Facebook from allegedly promoting, amplifying, spreading hate speech covered by Section 153 and 500 of IPC and particularly hate speech against Rohingyas does not arise for consideration…as there is a robust grievance redressal mechanism in existence, the Petitioners have an alternative efficacious remedy and are at liberty to avail the redressal mechanism as per IT Rules, 2021, with respect to any objectionable posts.”

Remind me about the Rohingya?: The Rohingya community have been steadily fleeing Myanmar following a military coup and subsequent attacks on their home province of Rakhine since 2017. For context: Myanmar is a Buddhist majority state, and the Muslim Rohingya form a minority group. Estimates suggest that over seven lakh Rohingya left the country. Many have settled in Bangladesh’s Cox Bazaar, in what is described as one of the world’s largest refugee camps. Others have settled in India. The United Nations Refugee Agency estimates that there are around 22,110 recorded Rohingya refugees and asylum seekers in the country.

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What was the case about?: The PIL was filed invoking the fundamental right to life (under Article 21 of the Indian Constitution) of Delhi’s Rohingya community who are allegedly facing violence as a result of the Islamophobic and ethnicity-related hate speech against them percolating on Facebook. The Rohingya and Delhi-based petitioners Mohammad Hamim and Kawsar Mohammed claimed that this content was not only fuelling violence against Rohingya in India, but in Bangladesh too. The petitioners warned that the language used in the posts could be “precursors to mass violence and genocide” against the community.

For example, as Newslaundry reported, one of the hate posts claimed that Indian intelligence agencies flagged that a large group of Rohingya were travelling to the southern state of Kerala by train. The post then encouraged the “public to “throw” any Rohingya refugee they may meet on a train”. Here’s an example of another post, extracted from the petition:

Source: Newslaundry.

The petitioners argued that this fundamental rights challenge could be brought against Facebook India in light of the Supreme Court’s 2023 judgment in Kaushal Kishore v State of Uttar Pradesh. In that ruling, the top court held that “a fundamental right under Article 19/21 [the rights to speech and life] can be enforced even against persons other than the State or instrumentalities”. If not, then they requested that the Indian government be given the “power of prior censorship” concerning any Rohingya-related posts on Facebook. In short: they requested that the government be given censorship powers over content even before it has been posted.

They also wanted Facebook to stop using its “virality and ranking algorithms” which allegedly prioritised hate speech against minorities. The petitioners further alleged that the social media giant strategically promotes hate speech to boost its revenues, and that this motive has hampered its “promises to make amends” for hateful content. For example, Meta’s content recommendation suggestions allegedly actively promote hate content. This structural issue cannot be sufficiently countered by simply taking down the posts once they’re reported—what’s more, reported content is often restored.

To prove this point further, the petitioners referred to a 2022 Amnesty International report on Meta’s alleged inaction against hate speech proliferating against the Rohingya on its platform. This would disentitle them from safe harbour protections held under Section 79 of the Information and Technology Act, 2000, they argued. Safe harbour protects “passive” platforms from being held liable for the third-party content they host, provided they comply with relevant Indian laws (for example, by taking down hate speech online).

The petitioners further requested the court to issue directions to the Indian government to restrain Facebook from promoting hate speech in general, and particularly against the Rohingyas. Hate speech is criminalised under Section 153A(1)(b) of the Indian Penal Code, 1860.

How did Facebook India respond?:  Facebook argued that the Indian government already has a regulatory framework dealing with hate speech online, devised under the IT Rules, 2021. Under this, Rule 3(b)(ii) imposes statutory obligations on platforms to make reasonable efforts to cause their users not to host certain types of prohibited information, including information that promotes enmity between groups on ethnic or religious grounds. Further, under the rules, users can challenge the content moderation decisions taken by platforms by appealing to it, and later to an appellate forum called the Grievance Appellate Committee. To that end, Facebook complies with the rules, having put in place mechanisms to remove user-generated objectionable content. In November last year, it took down over one lakh posts.

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Facebook particularly disputed the allegations that it chose to profit off of hate speech, adding that the magnification of news happens because of the “nature of the platform” and is a common issue across different companies. Further, it claimed the hate speech posts the petitioners referenced in their filings—which allegedly hadn’t been taken down—were already pulled down by Facebook in November, barring three which appeared on an accredited news channel’s account. The social media giant thus claimed that there was no cause of action for the challenge.

Further, Facebook argued that requesting pre-censorship was not within its domain. In 2022, a petition requesting similar action was dismissed by the Madhya Pradesh High Court, because the media was already being regulated by the IT Rules 2021 and Cable Television Networks (Amendment) Rules, 2021. For the same reasons, this current case should be disposed of too, it concluded.

The petitioner’s counsel admitted that their plea on Rohingya hate speech contained no reference to either the IT Rules, or the Cable Television Networks (Amendment) Rules, 2021. They were also not aware if the posts they’d flagged had already been removed by the platform.

Did the Indian government have anything to add?: It noted that the IT Rules were “enacted to address the specific issues raised by the Petitioners in this petition and the regulatory framework for controlling the objectionable posts, as illustrated in the writ petition, is in place”. Also, aside from the framework explained by Facebook during its submissions, the rules contain an emergency provision enabling the Indian government to block public access to content. In any case, the government claimed that it received no prior notice from the petitioners on its grievances surrounding Rohingya-related hate speech on Facebook. The petitioner’s counsel confirmed this.

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