“But in a democracy, it is not necessary that everyone should sing the same song.”
This comes from a 1996 Bombay High Court judgement in response to Doordarshan refusing to broadcast In Memory of Friends, a documentary by Anand Patwardhan about the violence and turmoil in the state of Punjab.
But the speech environment in India has changed significantly since then. Technology has transformed how people can express themselves and source information. Without the traditional gatekeepers, it was hoped that digital media would, to extend the court’s metaphor, release a noisy melody made up of billions of different voices. While the early utopianism of digital democracy has long faded, there is no denying the impact online platforms have had on India.
However, forces, like those who sought to restrict Patwardhan’s film, have not gone anywhere. If anything, the words by Justice AP Shah in the same judgement – “the State cannot prevent open discussion and open expression, however, hateful to its policies” – are seen more as a provocation than a proclamation of India’s constitutional protections for free expression.
Free expression, both online and off, in India has long been on fragile ground. Laws, such as the Unlawful Activities (Prevention) Act and the erstwhile Indian Penal Code, have been used to target and criminalise dissent. In fact, both have been further weaponised – the UAPA was expanded in 2019 to allow for individuals to be defined as terrorists, while the criminal code, including the colonial-era sedition law, was replaced with the Bharatiya Nyaya Sanita. While this was promoted as a way to remove the colonial stain from India’s criminal law, the new law did not remove the sedition provision; it broadened and modernised it. Four days after the BNS came into effect in July 2024, FIRs were lodged against five journalists based on other BNS provisions related to social media content about an alleged mob lynching in Uttar Pradesh.
In the name of state-enforced self-regulation, fake news, and the influence of online platforms, the government has moved apace to try and control online speech through a number of vehicles including rules against the IT Act itself, and legislation such as the Digital India Bill and the Broadcasting Services (Regulation) Bill. Progress has been faltering, legal challenges have currently clipped the wings of the IT Rules of 2021 and 2023, and the future of the Digital India Bill and the Broadcasting bill remains unknown.
The right to the truth
Whether in the name of national security, sovereignty or cohesion, or as an attempt to stamp out hate, disinformation or “criticism of friendly countries”, control over content can appear for the most benign reasons.
The 2023 IT Rules sought to stamp out “fake or false or misleading” information, something that is indeed curdling the global information space. However, by emboldening a government Fact Checking Unit, the state ordained itself as the unchallengeable arbiter of truth and lies when it comes to information and scrutiny of its own actions. The FCU did not survive a legal challenge, with Justice Chandurkar breaking the tie in the Bombay High Court in September, confirming that “under the right to freedom of speech and expression, there is no further ‘right to the truth’”.
When states are emboldened to define the rules against false information and what falls within them, it is increasingly difficult to disentangle falsehood from uncomfortable truths. This is not a stable foundation for free expression.
India is not alone seeking to establish a right to the truth. In 2022, the Turkish government brought forward a law that criminalised the dissemination of false or misleading information. In the subsequent years, it has been used to target and imprison journalists critical of the Erdogan regime. In Egypt, the British-Egyptian writer and activist Alaa Abd el-Fattah was arrested on September 29, 2019 and sentenced to five years in prison on charges including “spreading false news.” In 2020, Pakistan proposed a law that required platforms to remove and “deploy proactive mechanisms” against “fake news”, without defining what it meant.
When states are emboldened to define the rules against false information and what falls within them, it is increasingly difficult to disentangle falsehood from uncomfortable truths. This is not a stable foundation for free expression.
A safe harbour in a storm
The ghosts at the feast of any conversation about online speech are the tech platforms that dominate the online speech environment. India has long sought to force through compliance, by weakening the provisions that shield platforms from legal liability for the content they host. Often called safe harbour provisions, these can prevent censorship decisions from being downstreamed to the platforms themselves to avoid legal jeopardy.
Justice Patel, in his decision on a legal challenge to the 2023 IT Rules, pointed out that “if content publications carries a commercial risk (including a possible loss of safe harbour), it is inevitable that the risk-avoidance will prevail”. In the world of free expression, risk-avoidance means increased censorship. The Digital India Bill was expected to continue the work started by the 2021 IT Rules to weaken this shield. It has never been published and remains in a liminal space between deniability and commitment.
A recent legal collision between Wikipedia and Asian News International demonstrates the fragility of safe harbour provisions. Earlier this year, ANI brought a defamation action against the Wikimedia Foundation related to what it alleges to be “palpably false and defamatory content” on its Wikipedia page. It resulted in a contempt of court notice being issued against Wikipedia and concerns that it could be blocked. ANI asserted in court, through their lawyer, that “Wikipedia, which is an intermediary, is a platform which is now used as a public utility and cannot behave as a private actor”.
In a recent hearing, in response to Wikipedia’s resistance to disclosing information and identifying the anonymous page editors, Justice Manmohan also suggested: “You are the service provider, you run some risk of your protection, safe harbour being waived…Your vehemence is showing...you are something more than an intermediary.”
Is safe harbour a protection against overzealous censorship by a platform or an intimidatory tool to keep platforms inline? Or in India, is it both? Weakened safe harbour provisions may expand state influence over online speech policy but it would also increase the prominence of private companies in deciding what can be published and who can publish, just to avoid legal action.
Here too India is not alone in fiddling with this vital tenet of online speech governance. In Saudi Arabia, two proposed laws – the draft Media Law and the draft Global Digital Content Safe Harbor Law – seek to condition safe harbour provisions by enforcing government-led licensing regimes on top of the kingdom’s rigidly strict prohibitions on speech.
Under the Media Law, regulated platforms, potentially including individual social media users, have to be licensed by the General Authority of Media Regulation, which also has the “discretion to determine if content requires prior approval before publication”. To escape liability, platforms must secure an exemption certificate from the Saudi Communications, Space & Technology Commission. But intermediaries “exempted from liability are still subject to requests from the CSTC to remove or geo-block content that violates conditions to be set in the pre-qualification certificate.”
Like India, Saudi Arabia has placed itself at the vanguard of technological innovation and appears to see little contraction between that ideal and proposed laws like these.
By going after a platform’s liability shield, states such as Saudi Arabia and India, are banking on the risk-aversion that a profit motivation fosters, knowing that platforms depend on international markets to continue to grow. Increased control over content and accounts is perhaps a small price to pay for them, but a significant one for their users.
But it doesn’t have to be this way. There is little sympathy to be felt for the opaque titans that make up Silicon Valley. However, as they have monopolised the online speech environment, we must see threats to their services as threats to the ground upon which our speech is based. Only by acknowledging this can we explore ways to protect everyone’s right to speak out and control such corporate power. Indeed, ways we can enforce transparency as to how our data is used, how content is structured or ordered for view, as well as how content is moderated, are concrete steps we can take to ensure these platforms operate within democratic structures. Blunt force aimed at intimidating them into compliance do not help us get any closer to these aims.
But what next?
We should not mistake the absence of information as the absence of action. The public backlash against the 2024 draft of the Broadcasting Services (Regulation) Bill – which sought to place the regulatory burden on individual content creators and defined a cumbersome grievance regime that consolidated state control over online speech regulation – demonstrated the widely-felt impact of restrictive regulation. With the Winter Session of Parliament on the horizon, only time will tell as to whether the government has listened to the dissenting voices or has just spent its time trying to find yet another vehicle for its needs.
Nik Sunil Williams is the policy and campaigns officer at Index on Censorship, looking at global threats to free expression, including SLAPPs and online censorship. He is also the co-chair of the UK Anti-SLAPP Coalition.
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