Follow global examples in crafting a legal regime that imposes strict liability on intermediaries and users
Online forums are often looked at in a vacuum, but they are merely a reflection of society. In India, polarising content and hateful material on the Internet has proliferated in the recent past. Opinions that an individual would earlier hold back for fear of societal backlash have now found their safe spaces online. The Internet harbours a variety of extreme statements.
Social media today is a hotbed of toxic and hateful conversations. Curbing hate speech and fake news has emerged as a critical challenge for governments globally. But this is not just a technological issue; it is also a societal problem. In 2019, a terrorist opened fire in two mosques that killed at least 49 worshippers and wounded dozens of others in Christchurch, New Zealand. The aftermath of such terror attacks led to a new debate about how governments and civil society must seek to curtail hate speech on the Internet. The attack was live-streamed on Facebook by the perpetrator. In fact, the entire attack seemed orchestrated for the social media age. Before it took place, a post on the anonymous message board 4chan — a particularly lawless forum that often features racist and extremist posts — seemed to preview the horror. The post was linked to an 87-page manifesto filled with anti-immigrant and anti-Muslim ideas, and directed users to a Facebook page that hosted a live-stream of the attack. Posts on Twitter also appeared to herald the attack. Eventually, Facebook and Twitter took down the video — but not before it had been viewed by most of the world.
Countries across the world have already begun to acknowledge the issue of hate speech and fake news and how it affects the functioning of society. Germany and France have some of the most stringent policies in this regard. NetzDG or the Network Enforcement Act, in Germany, ensures tough prohibitions against hate speech, which include propagating pro-Nazi ideology. It provides strict takedown timelines, but also provides for an extension of such a deadline in the event that additional facts are necessary to determine the truthfulness of the information. The basis to decide whether any material infringes the law is based on their criminal code. When surveyed, most of the complaints received in Germany were related to hate speech or political extremism, rather similar to India.
France, on the other hand, has a transparency obligation for digital platforms, wherein platforms must publish the name and amount paid by the author in the event that content is sponsored. With regard to fake news, France has an 1881 law that defines the criteria to establish that news is fake and being disseminated deliberately on a large scale. A legal injunction is created in this event to swiftly halt such news from being disseminated. These nations are among the most proactive in content regulation. There is a need to achieve this level of efficiency, while respecting the freedoms of all those involved, right from the individual to social media companies.
It is undeniable that the consequences of the narrative that takes shape on online platforms, more often than not, have real life implications. Back home in India, in 2018, the spread of rumours, regarding child traffickers, through popular messaging platform WhatsApp, led to a spate of lynchings in rural areas. More recently, during the election campaign preceding the Delhi legislative assembly elections, an official election rally enticed crowds with the use of the slogan “Desh ke gadaaron ko, Goli maaro saalon ko”. However, in the days following this rally, a young man translated these words into reality by opening fire on protesters at Jamia Millia Islamia University, once again highlighting how hate speech has real consequences.
Fake news and hate content in India are primarily related to a person’s caste, gender or religion, which are sensitive topics for most of us. Moreover, the regulations to deal with such issues are insufficient and are also scattered across multiple acts and rules under the Indian Penal Code, the Information Technology Act and Criminal Procedure Code. The need is to harmonise and unify the existing laws. Moreover, there is a need to amend the draft intermediary guidelines rules to tackle modern forms of hate content that proliferate on the Internet. The reactive approach in the Shreya Singhal judgment gave the direction on how hate content should be regulated and the government should follow this direction, where the user reports to the intermediary and the platforms then take it down after following due process. The present legislative approach ignores due process and is, therefore, subject to abuse by the government. While security is fundamental, privacy is a right guaranteed by the Constitution and it is imperative that the government balances both privacy and security going forward.
We have now reached a juncture where hate speech is being employed by members of the ruling party in their efforts to garner support. Hate, vitriol and falsities are commonly spread to sway emotions and influence people. However, from these examples, we see that such speech does and will have consequences. Therefore, it is imperative for the government to recognise the menace of hate speech and ensure that there is proper regulation in place to tackle the issue. Though the intermediary guidelines proposed by the government are a step in the right direction, there is much left to be desired on a comprehensive framework to tackle the issue while safeguarding the freedoms of citizens.