Updated: Jul 17, 2021
(This is Part II of the two-part series on Freedom of Speech and Social Media Manipulation)
This article is authored by Ms. Akanksha Vigyan, a final year student at O.P. Jindal Global University
The previous post discussed the fundamental issue of social media manipulation in India, against the rights and principles vested in the Constitution and precedents by Judiciary, to protect individuals from this trap. In this spirit, it is imperative that we throw light on the situation regarding Kashmir, tracing back to abrogation of Articles 370 and 35A of the Indian Constitution back in 2019, and what followed after with social media accounts and communication blockades against India’s international obligations. Article 370 provided special status to the state of Jammu and Kashmir to form its own regulations and laws for its residents; disallowed non-citizens from buying property in the state, as well as the Centre from declaring emergency in the state except in cases of war or external aggression. Article 1 read with A370(1)(c) bound the state of Jammu and Kashmir to the union of states under the territory of India, which would mean that on being repealed, it could be treated as a state independent of India. Article 35A equipped the permanent residents of the state with special rights and privileges, which a non-permanent Indian citizen was not granted. The abrogation of these Articles removed the special status and rights, and allowed the Centre to rule the state under the same rights and rules as the rest of the Indian territory. The state was further bifurcated into separate union territories – Ladakh, and Jammu and Kashmir (“J&K”), and their state assemblies were dissolved. While the after-effects of this revocation were still panning out, the government began imposing curfews, communication blackouts in the form of internet bans, suspended phone services, arrests and investigations on social media users and journalists, and detainment of political figures under the Public Safety Act, 1978 – all this under the intent to “prohibit unrest” and “maintain law and order”. This proceeded to establish a historical event of the longest internet blackout in a proud democracy.
I. Internet Bans & Suspended Social Media Accounts – India’s Discrepancy
The internet blackout that spread throughout J&K starting 2019, traced for over 213 days, accounted till 2020. High speed internet (4G) ban, restricted to 2G cellular data, saw a 500 day-count in December 2020, and was extended till February, 2021, totalling 550 days. Compared to 2019, where Kashmir stood at “Partly Free” in the Freedom of the Net report with 49 points on 100, in 2020, it fell down to 28 points to having achieved the status of being “Not Free”. India was observed to have the most decline of democracy over the past 14 years, alluding to the status change. Once this domino effect began, the government began emailing Twitter to flag content and accounts, including media accounts, to remove/suspend them. Beginning from 2016, government control over social media gradually increased, and the recent IT Intermediary rules to govern social media, intend to make the firms “more responsible and accountable” after Twitter ignored governmental orders to remove content related to farmers’ protests. The Transparency report Twitter publishes claimed that between January and June 2018, over 237 removal requests were made by the government, and in the second half of 2018, more accounts in India were suspended compared to the rest of the world.
The United Nations (“U.N.”) Human Rights Council experts in 2019, urged the government of India to withdraw the suspension on the longest communication blackout, as it posed as a violation of freedom of expression, access to information, and peaceful protests, without reason. They declared their concern in it being inconsistent with the fundamental norms of necessity and proportionality under international law. This was after U.N. Special Rapporteur on freedom of opinion and expression, Dr. David Kaye, wrote a letter in December, 2018, addressed to the CEO of Twitter, Jack Dorsey, to seek information on requests made by the government about suspending accounts and removing content related to Kashmir. There was no official response received, however, this incident became an exemplary crackdown on freedom of speech and expression in a democracy like India.
In the Indian Constitution, freedom of speech and expression is envisaged under Article 19(1)(a), subject to reasonable restrictions of proportionality and necessity under Article 19(2). This includes the right to access and impart information, and the right to internet as a fundamental right in exercise of the right to speech and expression. In Shreya Singhal (2015) and a 2019 Kerala judgement, access to internet becomes an impertinent extension of that right, congruent to the right to privacy and education. Further, in Sabu Matthew George (2017), the Supreme Court upheld that access to information includes accessing information through any electronic media. Interestingly, the government’s move to insistently shut down the internet stands inconsistent, not just with these mentioned ideals of a democracy, but with the principles of their own initiative, “Digital India”, that intends to enable better access and governance of internet throughout the nation – a right that should be handed to Kashmir, especially after abrogation of Article 370, allowing participation in enjoying these rights. It was observed after the government’s defense of “national security”, that this was a narrow read of Article 19, which was what the Supreme Court in Maneka Gandhi v UoI (1978) held; for a broader interpretation of fundamental rights to enable and protect sensitive rights such as those under Article 19.
II. Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”)
India, having adopted the Universal Declarations of Human Rights (“UDHR”) and ratified the ICCPR, is bound by these international principles that work on ensuring protective human rights to individuals in a State without discrimination. Article 19 in both UDHR and ICCPR focuses on the right to hold opinions and freedom of expression, the right to “seek, receive, and impart” all kinds of information, regardless of frontiers, and through any media, be it oral, in print, in writing, in a form of art, etc. Though this right is a widely formulated right in other conventions, it is not an absolute one. The States translate laws to regulate this freedom in their own domestic narrative. In ICCPR, the exceptions to the right lie under Article 19(3); these restrictions are further subject to a three-part test that must be met in its entirety, maintained in Article 19(3) to observe the least possible restriction on expression:
(i) It must be provided by law;
(ii) Must be out of necessity – “a pressing social need” and must be proportionate to the act requiring the restriction. It is implied that it is the burden of the state authority to prove that there is a necessity for interference in the right rather than the other way round; and
(iii) It must pursue a legitimate aim. Here, the aim must include only ‘national security’, ‘public order’, and ‘privacy’ or other ‘rights or reputation’ of others.
General Comment 34 paragraphs 21-23 mentions that the right of freedom of expression itself is not put in jeopardy in the event that a State party imposes restrictions, nor can be used to justify the means of restrictions in a democratic State. On the scope of internet and internet ban, the Comment acknowledges internet as a medium of expression – that the offline rights shall apply on online mode as well, and relays that any restriction can only be made till the extent allowed under A19(3), that generic bans are incompatible with the principles and instead it should be content-specific, content that is not severable.
On principle then, the government’s demands with Twitter account suspension and internet ban, overreaches proportionality, especially with the increase in the arrests of activists and journalists. The new Media Policy 2020, in furtherance, gives power to the government to administer criminal proceedings on the advent of the media being accused of propagating fake news, misinformation, using media to incite communal passions, preaching violence, etc. This, by rule, gives the Department of Information and Public Relations (“DIPR”) in J&K de facto control over journalism in the entire Valley region. That what appears underhanded, is merely an exercise of unchecked arbitrary powers for surveillance over a major pillar in the maintenance of the right to freedom of speech and expression.
III. Flow of Power between Social Media Firms and the State
The act of Twitter banning accounts on behalf of the government, or being in a position to ignore government’s orders to remove content, begs insight on the power resting with these firms. As a publicly-traded privately-owned firm, which does not fall within any of the three branches of the government, having the power to remove, flag, suspend accounts or content, which in turn leads to interference with acquiring information and the right to expression; gives them unaccounted powers not vested by the people, to moderate how the people acquire this information and what kind of information is then circulated. In fact, the users don’t seem to have an option to object, nor any available remedy in case their rights are being interfered with except to flag or report content. The European “rightto be forgotten” maintains an erasure of personal data, which concentrates the power with the companies even further, though it is not a right exercised globally. Therefore, from this current ongoing culture, comes the part with the regulation of content by the government. With social media platforms like Twitter, when the government makes tighter laws for compliance by the portal, it creates a cycle of moderation-regulation dynamic between the firms and the government. In between them, the users are operating as non-participants in this rulemaking.
To put a heavier check on media and social media, the government came out with new intermediary rules that require the big companies to have a redressal mechanism; this to make them “more accountable and responsible”. A few issues previously, amongst many others, included content being taken down without any justification or transparency, or surface level involvement of users and the parties involved in the functioning of internet. There remains a need for involvement of judiciary and tribunals to aid in the decision-making and reviewing of the decisions taken, as well as a mechanism like Twitter’s Transparency report, which would maintain reporting of decisions the government makes with regards to social media discrepancies, since it directly relates to either interference or aid of freedom of expression. However, taking a step back in its execution and without any specific elaboration for transparency in it, the new rules also reiterate that the companies must remove content within 36 hours of receiving a legal order.
In light of the information mentioned above, as well as the ongoing pandemic, internet shutdown not only leads to interference in right to information, but also chokes communication that could enable better health facilities or information about different regions and parts of the world, and education at all levels, in the current online mode. In fact, the U.N. addresses it as being subjected to a collective punishment for the people of Kashmir Valley, and collective punishments are prohibited under all circumstances as per Protocol II, article 4(2)(b). With addition of cyber crime volunteers and blurred standards, domestic laws continue to fail in execution to uphold civil liberties and fail to create a balance between liberty and security reasons – which comes at the cost of an individual’s civil liberties in the case of Kashmir. More flesh to these rules and judicial precedents need to be added in the form of transparency and involvement of stakeholders in the rule-making processes, perhaps through inclusion and consideration of narratives. In any case, the fundamental right to freedom of speech and expression needs to be read broadly, and not directly prohibited in case of jeopardy of the right, if only to avoid these intrusive blanket restrictions, in light of international standards that require more seriousness when sitting over such crucial decisions.