Updated: Jul 17, 2021
(This is a Part I 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
Social media is everywhere, present in every hand in the form of a new gadget every quarter of the year; the constant shadow of it around even when we're asleep, and the ticking bomb it has become that somehow finds itself as a lead in a negative-narrative than a solution to the actual negative narratives that are otherwise swept under. Its progression, invoking a presence of having a more advanced social-political voice, the mandatory “wokeness” defined at their own convenience by all the sides, indelibly has led to states and their governments into a more surveillance-focused regime. Does that include redefining – not always in a codified amendment – the meaning of democracy, by skirting around the loopholes, for the well-known democratic regimes, like India's? The Freedom on the Net Report 2020 (“FOTN”) reported that India saw a change in its “freedom” status from ‘Free’ to ‘Partly Free’ in the past year by four points. They elaborated, “India’s status declined from Free to Partly Free due to a multiyear pattern in which the Hindu nationalist government and its allies have presided over rising violence and discriminatory policies affecting the Muslim population and pursued a crackdown on expressions of dissent by the media, academics, civil society groups, and protesters.” Now, where does the Indian government find the power to go ahead with this, if it is not vested in the Constitution erected to uphold this very institutional democracy?
I. Current systemic social media privacy violations & the constitutional oversight
Recently, WhatsApp came up with new policy regulations, that attracted the musings of the Supreme Court, and lead to a hike in downloads for other apps like Signal and Telegram. The issue arises when companies use lengthy T&C under the guise of a healthy agreement, only for the layperson to miss the necessary details that could give rise to such privacy issues. Whether we want to or not, our consent is being given with a single action, and we are allowing third party cookies into our privacy, but not necessarily out of conscious consent at times. Situations arise out of the necessity of work – to take advantage of these sites, we must in turn give away information about ourselves – where even if we enter the domain for a single task, the cookies can trace our browser history and the third parties on the network can give way to a personalized feed over what we see. That can work as a double-edged sword, when this tactic of over-worded terms is used to rope in users by sneaking in a clause that could pass by the eye, or a situation like WhatsApp’s where the use of simplified provisional language could have avoided the unnecessary issue (apart from other privacy issues). By signing up for any of the clauses and connecting accounts over different mediums, more information is added to our internet carbon print-profile. Once we log onto these social networking sites, our frequency of visits, contacts, the kind of content we usually watch, the online shopping pattern, etc., is collected and then used to trace our likes and dislikes without our knowledge – catering to us in a gullible fashion, but keeping a check on us from under the radar. Previously, Twitter has also admitted to reading users’ contacts onto their website database to learn more about their users.
In the same effect, India banned Chinese apps over the last year for ‘national security reasons’. FOTN reported that there was a lot of pressure put on media companies and streaming platforms (like Netflix) to remove content that threatened national security and peace, by being critical of the “government’s Hindu nationalist agenda”. Further, there were reports that involved framing of activists and journalists by planted evidence, or use of spywareagainst them.
This is where an Indian citizen’s Right to Information and Right to Privacy in the Indian Constitution get attracted. Enshrined in Article 21, Right to Privacy being an innate right, dates back to the cases of M.P. Sharma v Satish Chandra in 1954 and theKharak Singh v the State of Uttar Pradesh in 1962, where the Bench observed that the right was not absolute, nor a part of the fundamental constitutional right given to a person. The dissenting opinion of Justice Subbarao in Kharak Singh where he noted that although not recognized, right to privacy was still a fundamental part to personal liberty under the Article, was later adopted in the 2017 judgement of Puttaswamy v Union of India – wrt constitutional validity of Aadhar being used to aid the agenda of a surveillance state – to rule that Right to Privacy was a fundamental right of citizens under Articles 14, 19, and 21. It was too pertinent a right to protect an individual’s self from a state as well, and a violation of such, subject to reasonable restrictions, would require a further judicial intervention. Right to Information on the other hand, stands as an implied right under Article 19. Read with the implicit right to dissent, it can also be elucidated to include the right to make informed decisions, which, the act of banning Netflix shows that are critical of the government’s actions, interferes with by trying to omit parts of the information narrative. Without information on how a government functions, a citizen cannot make the right choice for the government, whether in agreement or disagreement. A democratic stateholds the most value in its right to dissent, opined Justice D.Y. Chandrachud, and it is the duty of the state to ensure that an individual can exercise that dialogue without fear of retribution. This includes the right to Free Press. However, the Modi government led a nationwide arrest on journalists for speaking outagainst the government. This is the same State that reads the press and media as being the fourth pillar of a democracy. But this also goes to show how the democracy has cracked over the past decade by a regime that is slowly turning draconian in its application of laws.
II. Cybercrime & the Privacy laws in India
In 2019, the rate of cybercrime increased in India compared to 2018, by 63.5%. 60.4% of the cases were for fraud, followed by a 5.1% for sexual exploitation. Failing to protect private information on the internet escalates the crimes of phishing, identity thefts, data scraping, cyber-stalking, defamation, etc. Like Twitter admitting to reading users’ contact lists, Facebook is just another social network that does not require usage of its services to track someone. This process would merely function on engagement with other apps even without a Facebook account, and that would transfer the collected data to Facebook, a pressing example of which is WhatsApp. Apps that require personal information including location, like Aarogya Setu, function on a coercive contractual basis, that also run amok the paranoia after its breach by Elliot Alderson, a French ethical hacker.
There is a humble lack of specific laws in India about social media and privacy violations. Currently, it is being regulated by Information Technology Rules, 2011, under the Information and Technology Act, 2000, which provides for a general inclusion of data protection and deals with the compensatory and punishment part of law where there is a misuse of personal data or violation of this data by sharing to third parties. By 2025, it is estimated that technologies in India will create a $1 trillion economic value, by way of using and selling this data. The issue at hand then becomes that just because there is an explicit sharing of one’s personal data with one particular site, the site does not become entitled into sharing it with any other intermediaries in furtherance. The Personal Data Protection Bill 2019 aims to enable this by giving the users full ownership of their data. The digital platforms must require permission before accumulating data which can be processed only for specific, clear, and lawful purpose, and users in their own right can then ask for the platforms to delete their data, following the European “rightto be forgotten” that allows them to remove their online history. In 2015, the case of Shreya Singhal set a precedence enabling the right to freedom of expression and speech protecting it from arbitrary, undefined standards that allowed the arrest of the petitioners. However efficient it may seem, though, a PDP Bill cannot solve a private issue of traceability, nor does it entirely protect an individual. The government requires sensitive information related to matters of religion, etc. in “national interest”. Such an undefined access to this information can lead to its gross misuse.
With the new media policy and the cyber crime volunteers program that does not define what or who can be arrested under which conditions, the volunteers become legible to fall prey to running free with arbitrary powers, and declaring any content as “unlawful content” and any person an “anti-nationalist”. And with no specific process for withdrawal of the complaint, nor a protective provision against the volunteers in place, this seems a step as close to an Orwellian state as possible. How would these policies account for Right to Freedom of Expression and Speech, Freedom of Press, Right to Privacy, for the citizens, keeping in mind the plight and situation regarding the same in Kashmir with these violations? Internet shutdowns, enforced disappearances, and the endless loop of unaccounted information. This shall be discussed in the next part of this segment.