Authored by Syed Raiyyan & Simran Singh, 2nd year students at RGNUL, Patiala
Introduction
The Indian Constitution recognises the right to freedom of speech as a fundamental right, extending it to all citizens of India under Article 19(1)(a). This freedom has been interpreted to include the right to disseminate information to as wide a section of the population as possible. And yet, rights without restrictions can become synonymous with anarchy and disorder. Therefore, the Indian Constitution provides reasonable restrictions on the right to freedom of speech. Article 19(2) provides the parameters for the same, which include, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense”.
The interconnectivity offered by the internet has greatly expanded the right to freedom of speech. The easy access to the internet has allowed individuals to express and disseminate their opinions on a much larger platform. However, it has also had adverse effects, “exposing each person to biased or erroneous ideas, with only weak means of sorting facts”. The spreading of such ideas has the potential to cause serious harm, and its effects have not remained hidden. The question hence emerges, do these instances get constitutional protection under the right of free speech? Should free speech include the right to express and disseminate fake, false, or misleading information? More importantly, who has the power to adjudge which information is to be taken off of public platforms? What are the limits of sharing on social media or any similar services? Of course, reasonable restrictions ought to be imposed, but what would be considered reasonable restrictions in this context? These questions define the great struggle between liberty and authority today.
Article 19(1)(a) and the Right to Lie in the Digital Sphere?
This idea of freedom of speech and expression on the new platforms of social media has become one of the major disputes between the government and civil society. In an attempt to regulate the content in the digital sphere, the government has often made sweeping provisions. The Courts have had to clarify the position of fundamental rights vis-a-vis social media platforms on more than one occasion. In the landmark case of Shreya Singhal v. Union of India, the Supreme Court answered this question of reasonable restrictions in the context of the digital sphere. While striking down Section 66A of the Information Technology Act of 2000; which criminalized the sharing of information through digital means that was offensive or caused inconvenience or annoyance; the Court reinforced that any law that places additional restrictions beyond the “four corners of Article 19(2) of the Constitution”, is arbitrary and unconstitutional. It concluded that “grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a).” In doing so, it set the precedent that any information posted on the internet may not be censored outside the eight grounds of Article 19(2).
In a much more recent case, the position was reiterated by the Bombay Court in the case of Kunal Kamra v. Union of India. The question before the High Court was an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) that had altered Rule 3(1)(b)(v). The amendment to the rule had added the provision that the social media intermediary must make reasonable efforts to not host, publish, or remove already published information that has been identified, concerning any business of the government, as ‘fake, false, and misleading’, by the Fact Checking Unit (FCU) of the Government. Disregarding this obligation would lead to the intermediary losing its safe harbour, i.e. exemption from liability over the content posted and shared by its users, under Section 79 of the Information Technology Act, 2000, according to Rule 7 of the IT Rules. The Court noted that this amendment would create a chilling effect, forcing the intermediary to take down any content as notified by the FCU. In a choice between the removal of the protection of safe harbour or the removal of a small chunk of content, the intermediary will always go with the latter, as the risk of the former is too great. “No intermediary”, it reasoned “is quixotic enough to take up cudgels for free speech”.
While considering the validity of the provision the Court drew attention to the vagueness of the provision. It mentioned how words like Government matters, fake, false, and misleading remain undefined, and the authority to define such words, according to the provision, rests with the Government. It found that such an authority over the marketplace of ideas is antithetical to the concept of free speech. It also emphasized how fleeting the truth can be, and elaborated on how the provision deals with an area where absolute truths are rare, and the world is cast in ‘fifty shades of grey’. The Court further relied upon the precedence of Shreya Singhal, holding that no restriction may be placed on Article 19(1)(a) apart from those already stipulated by the wordings of the Constitution, and found that the ground on which the provisions restrict free speech lie outside of the scope of Article 19(2). Consequently, the Court found the provision ultra vires to the Constitution.
Considering the scope of the Right to Lie, it elaborated that “what is guaranteed is a right under Article 19(1); and in Article 19(1)(a), it is the right to freedom of speech and expression, not some ‘right to the truth’.” The Constitution nowhere requires truthfulness as a prerequisite for the right to freedom of speech. In cases where restriction can be imposed as provided under Article 19(2), the law does not differentiate between truthful statements and fallacious statements. Hence any blanket ban on misinformation, ipso facto, falls outside the scope of Article 19(2), and is too broad to be considered reasonable, and hence, is unconstitutional. A right to lie, unless it leads to adverse consequences or incitement concerning grounds of Article 19(2), seems implicit within the broader right to freedom of speech and expression.
These judgments elaborate upon the extent of Freedom granted under Article 19(1)(a). Anything that goes beyond the limited grounds provided under Article 19(2), and/or is too broad, necessarily fails the test of constitutionality.
The Common Thread of Vagueness
The issue of ‘overbreadth’ and ‘vagueness’, however. is not restricted to this one provision and goes further. For instance, the first part of Rule 3(1)(b)(v) says that an intermediary must make reasonable efforts by itself not to host information “that deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature.” How an intermediary is to decide what intentional communication of misinformation must mean remains unclear. Similarly, what would be considered reasonable effort on the part of the intermediary is just as uncertain. This will force the intermediaries to err on the side of caution and take a ‘better-safe-than-sorry’ approach, which in turn results in them taking 'disproportionate action on legitimate content on their platforms’. The IT Rules do provide that whenever any content is removed, the user who shared the content must be allowed to be heard, however, this does not counteract the uncertainty inherent in such removal that will prompt an overly cautious approach.
The challenges of overbroad restrictions being placed on the freedom of speech and expression are not restricted to government regulations. Private intermediaries suffer from a similar vagueness as has been held excessive in Shreya Singhal and Kunal Kamra. The Supreme Court clarified the horizontal application in the case of Kaushal Kishore v. State of UP where it noted that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.” Therefore, the right to freedom of speech and expression shall apply to private entities as well.
Social media intermediaries moderate or remove content according to their community guidelines. These community guidelines are often in excess of Article 19(2) and hence curb the freedom of expression of individuals. For example, Instagram, owned by Meta, uses automated technology to remove content that does not meet standards. However, these standards remain vague and broadly defined, often in extraversion to Article 19(2), and more importantly, there exists no review process. Even the harmful content defined in the community guidelines is loosely explained in non-exhaustive lists and is contradictory. For instance, in cases of violent threats, certain parameters to exclude removal have been included such as ‘less severe posts’ or certain threats against ‘violent actors’ such as terrorist groups. The use of AI to remove content, especially with such complex inclusions and exclusions, gives space for huge lacunas where context is missed in the name of objectivity.
Its sister platform Facebook has similarly vague policies. One reason for the removal of content that Facebook quotes is reporting by a third party. However, how the veracity of the report is verified remains ambiguous. Apparently, in such cases, these multi-national organizations become the court of law over the fundamental rights of freedom of speech and expression. Both platforms recently also came under fire for the removal of certain posts for breast cancer awareness, allegedly because of female breasts or nipples being visible in graphics. Similarly, these platforms have often been accused of shadow-banning certain controversial content, including posts that use #feminism, content related to the genocide in Gaza, and posts on similar themes.
In light of the observations made in the previous section, it becomes clear that such restrictions on and removals of content fall foul of Article 19(1)(a), with the exception that instead of the government, it is the social media intermediaries that hold the reign over the ‘market place of idea’. The removal of content based on vague guidelines through automated technology with little clarification on its workings is arbitrary and unconstitutional.
Conclusion
While the Digital Sphere has increased the space for expressing one's opinion, the legal regulations for preventing abuse from both users and platforms have often not kept pace. As discussed, provisions and safeguarding strategies have either been vague, overbroad, and/or in excess of Article 19(2) of the Constitution. These transgressions have been common in the government and private entities. Moderating content is crucial to ensure the protection of all groups of users, but these moderative techniques cannot be used in ways that impede on freedom of expression for any individual. More transparency and accountability must be demanded from private entities processing and making verdicts on individual content and data of Indian citizens. At the same time, the government must not become the deciding entity for ‘true’ information on individual posts. Rather it should work towards awareness and creating spaces for verified information to counter viral fake news. Technology innovation must connect the world and improve our lives without harming our core rights. The fundamental rights provided in the Indian Constitution must remain inalienable and inviolable by any power including the State, private actors, or the growing force of artificial intelligence and advancements in technology