‘Law flounders amid rape, death threats’
CRACK THE WHIP Our cyber cells need to work more closely with Interpol, which supports police worldwide, including digital forensic teams and training officers
When the case against online free speech began, the additional solicitor general handed some lurid pictures to the bench: of gods and prophets in obscene positions. The images, designed to offend, weremeanttoshowthecourtwhatdecent folk must suffer online, and why a toobroad law criminalising the “annoying” and “inconvenient” must remain.
We — counsel for civil liberties organisations and media technology companies — argued for free speech on the internet. The law, which made criminals of those whosharedthestartlingpicturesbeforeus then, is still slowly crushing a professor of JadavpurUniversityinacriminalcasefor sharing a political cartoon based on a children’s story by Satyajit Ray.
The court struck down the law, and in doingsocarriedforwardthedeepvaluesof free speech jurisprudence.
Whatthenofthetrolls—andotherswho distributeonlineoffensivepicturesofgods, make threats, and systematically target women and minorities? Troll as a word conjures up a lonely raging soul but of course hatred isn’t spread by solitary malevolents. The terrorist group IS has proven nimble in moving between social media platforms, and using encrypted tools like Telegram and TOR.
At home, the BJP’s 5,000-strong IT cell that helped win the UP elections, has among its legitimate campaign work, the trending hashtag #KasabAgainstHindu. AmemberoftheUPITcelltoldNewslaundry: “A dangerous online army of lakhs is following us, which is not in our control.”
How then can a media technology company,thelegalsystemandaspeakeronline limithatespeechwithouthacking away at free expression?
Mediatechcompaniesare obliged contractually to stick to their terms of service,buttheystrugglewith volume of data. And the largest companies have a bit of a nationality problem. Facebook,Twitter,YouTube and Microsoft signed up for the European Commission’scodeofconduct that includes a commitmenttoreviewmostvalidnotificationsfor removal of illegal hate speech within 24 hours. This prompted focused technologicalinnovationandbetterstaffingforEuropean markets.
In the US, new tools on Twitter to deal withharassmentweredevelopedafterthe lateAmericancomedianRobinWilliams’s daughterwasbrutallyharassedfollowing his suicide. Death-and-rape threats in Indiahaven’thadthesameresultsfromthe headquarters.
Last month, Twitter developed an algorithm to weed out abuse. Google is testing an artificial intelligence tool, Perspective, to help editors of media companies maintain “civil and thoughtful” user engagement. Algorithms are essential to manage the volume of speech produced each day, but they make mistakes. To make sure “falsepositives”aren’tcensored—speech that’s not unlawfully abusive or against terms of service — there’s no way around robust staffing of safety teams. Sunlight’s the best disinfectant here also. Facebook and Twitter have published transparency reports on state censorship.Techmediashouldconsider transparency reports of speech they censor themselves.
The Twitter population is larger than that of the United States; Facebook has more people than US and Europe put together. Holding elections on Facebook, Twitterandotherplatformsfordemocratic user representation, say on appeal committees, would be welcome.
Freedom of expression doesn’t include the right to someone else’s attentionormindspace—though trolls often invoke free speech whenblocked.IntheIndiancontext, trolling is much worse against, say, women, Muslims andhomosexuals.Mentalspace is precious, and trolls by definition don’t take ideas forward. An abusive or boring and repetitive handle is easier to block than swatting a fly.
For threats and certain kinds of abusethereisthecriminallaw.Most laws criminalising speech are oppressive, though. And wouldn’t get past the standards of the progressive constitutional bench judgments of the Supreme Court or indeed the Shreya Singhal judgment, the online free speech case described above.
A lot of the laws criminalising speech silence legitimate speech, against the doctrines of Overbreadth and chilling effect that should not allow such laws to stand.
Ultimately, it’s empirical data on the impact of hate speech that would demonstrate whether and how they incite violence or discrimination, and, if, therefore, they are tailored to the ends they seek.
Arecentexampleofegregiouscriminal process initiated against online speech is the FIR registered against Prashant BhushanafterhemadeacommentonLord Krishna.Therewasnocriminaloffencein his tweet, yet an FIR was filed.
Even for a senior lawyer, the process of seekinganFIRtobequashedisthepunishment itself. The SC limits on anti-speech lawssuchasSection153Aand295Aneedto be included in the police’s versions of the Penal Code to limit their overbreadth.
Ifthelawattheveryleastpreventedthe filingofFIRswherethereareapologiesand swift takedown of content, the jurisprudenceofonlinehatespeechwouldbemore reasonable in its restrictions. By contrast, where there are threats to rape or kill, law enforcementflounders.Bizarrely,Section 506 on personal threats is bailable in New Delhi, Section 354D on physical and cyber stalking is also a bailable offence. Online media companies don’t disclose user data fastenough,andassoonastheIPtrailleads to a server outside the country the trail peters out.
Whilelawsandpolicearenational,most cybercrimes are transnational, even if via VPNs.Ourcybercellsneedtoworkmore closely with the Interpol, who support police forces worldwide, including digital forensics and training officers. Developing jurisprudence on civil
damages for the invasion of privacy, sexual harassment, and defamation — subject to proof of damage — would in many instances be more reasonable than criminal restrictions on speech.
Overyears,thenormsofIndianconversationsbothonlineandofflinehaveshifted dramaticallyagainstreligiousminorities, seculars and progressives, while there have been positive shifts in some pockets towardstheequalityofgendersandsexualities.Thosewhobelieveinauniversalright to life have been startled out of their complacency by the normalisation of Pehlu Khan’s murder, and by Mohammad Ikhlaq’s murderer being draped in the national flag.
Iengagepublicly—online,ontelevision and through public lectures — because moving societal norms towards equality, freedom and rule of law is part of the work of creating justice.
AsalawyerIamtrolledlessthanothers, but after one discussion on the Ishrat Jahan case, I got hundreds of violent messages, including wishes that my family would die in a terror attack. This was during court holidays. I blocked the incorrigiblesandwarnedthem,madejokesagainst thesillymisogynyandlogicallycountered reasonable questions.
Many people came forward in support, some in admiration, because though I am a lawyer, every time a woman deals effectivelywithtrollsthereareotherswatching and feel strengthened to speak out.
In an age when secularism is bigotry, ignorance is power and equality is dominance, clear voices rising above the discordant cacophony can move norms towards freedom. And freedom is why the caged bird sings.