Daily Archives: June 1, 2020

A feature of public life in Tamil Nadu in the last three decades has been the indiscriminate institution of criminal defamation proceedings against Opposition leaders and the media. It is no surprise, then, that the most comprehensive judgment on the limits of the States power to prosecute members of the press for defamation should come from the Madras High Court. The verdict of Justice Abdul Quddhose, quashing a series of defamation complaints filed since 2011-12, is remarkable for applying a set of principles that would firmly deter the hasty and ill-advised resort to State-funded prosecution on behalf of public servants. The first principle is that the State should not impulsively invoke provisions in the CrPC to get its public prosecutor to file defamation complaints in response to every report that contains criticism. The court deems such impulsive actions as amounting to throttling democracy. It advises the government to have a higher threshold for invoking defamation provisions. It notes that each time a public servant feels defamed by a press report, it does not automatically give rise to a cause for asking the public prosecutor to initiate proceedings on her behalf. The statutory distinction between defaming a public servant as a person and as the State itself being defamed has to be maintained.

Justice Quddhose goes on to fault the government for according sanction to the initiation of cases through the prosecutors without explaining how the State has been defamed. He cautions prosecutors against acting like a post office, noting that their role is to scrutinise the material independently to see if the offence has been made out, and if so, whether it relates to a public servants conduct in the course of discharging official functions or not before filing a complaint. So, the court finds that many were cases in which public servants ought to have filed individual cases. An earlier Madras High Court ruling noted that an essential ingredient of criminal defamation must be that an imputation was actuated by malice, or with reckless disregard for the truth. A recent judgment by Justice G.R. Swaminathan enunciated what is known in the United States as the Sullivan rule of actual malice. While quashing a private complaint against a journalist and a newspaper, the judge said two of the exceptions to defamation given in Section 499 pertained to public conduct of public servants and conduct of any person on any public question. This implied that the legislature itself believed that unless it is demonstrated that reporting on a public servants conduct or on a public question was vitiated by malice, the question of defamation does not arise and that even inaccuracies in reporting need not occasion a prosecution for defamation. Within a matter of days, the HC has struck two blows for free speech and press freedom.

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Batting for free speech: On filing of defamation cases against press - The Hindu

The president and Twitter are in a battle over content moderation.

Olivier Douliery/Getty Images

Although the First Amendment doesnt apply to private companies, Twitter was once known as the free speech arm of the free speech party. Besides clearly illegal content like child pornography, Twitter was originally loath to moderate tweets. That has changed gradually, as the platform has tightened policies around violent extremism, abuse, etc.

This year, in response to misinformation related to the 2020 election and the coronavirus pandemic, the company has started to flag and remove harmful content at unprecedented rates. A turning point seemed to come Tuesday, when Twitter finally slapped warning labels on two of President Donald Trumps tweets, which falsely claimed that mail-in voting would lead to widespread voter fraud. That move came after a few days of yet another Trump tweetstorm controversy. On Thursday, Trump retaliated by signing an executive order of questionable legality that could punish social media companies for regulating content.

Its a windingand frankly exhaustingsaga, but indulgent Trump spectacles aside, one of the main tensions here is the question of what responsibilities Twitter has as a medium of discourse and whether it might be changing its core principles to adjust to the role its assumed in the public sphere.

In order to understand how a private company largely built on the idea of freedom of expression has found itself embroiled in a national free speech controversy, I spoke with Blaine Cook, Twitters former lead developer, who worked at the company from 2006, during its founding, through 2008. During the course of our conversation, which has been edited and condensed for clarity, we discussed Twitters founding principles, the importance of moderating online communities, and Cooks take on the companys latest move.

Chloe Hadavas: When Twitter was just getting off the ground, how did you guys think about speech on the platform? Was the idea of free speech central to Twitters founding?

Blaine Cook: Yeah, I mean, there were different communities within the company, even though it was obviously quite small. Evan [Williams], and to a lesser extent Jack [Dorsey], came from the tech blogger world and had that sort of background. I had done a bunch of activist work and had worked on tools like TxtMob in the years before. We really looked at Twitter and the tools that we were building as new media platforms that enabled voices of people that wouldnt have had representation up until that point. So the idea was that there was the established corporate media and that the internet presented the opportunity to have different venues that werent controlled by the establishment, as it were.

Were you always so optimistic about it? I mean, could you have foreseen the ways in which an open platform might eventually be weaponized?

I think its complicated because in many ways we were hoping that it would be weaponizednot by Trump, but by progressive forces. And I think we do see quite a lot of that. You know, its interesting watching the Minneapolis protests and the conversations that are happening around that in parallel with Trump having a hissy fit. The Minneapolis conversations wouldnt have been possible, either, without Twitter. So I think it has played out the way that we kind of expected.

What about the idea of the platform being the free speech wing of the free speech party, as Twitter executives called it in the early 2010s? Was that a part of Twitters identity in the mid-2000s?

Theres a lot of nuance there thats important. I think thats true to a point, but the framing of the free speech wing of the free speech party is something that came laterfrankly, after I left, during some of the early interactions around harassment and the content moderation questions that came up in 2008. Ariel Waldman was one of the very early people who experienced harassment on Twitter [in May 2008], and Twitter declined to get involved, which was after I left. And I think thats maybe where a lot of these libertarian-leaning free speech party ideas came from.

From my perspective, that framing isnt far off from what we were trying to do in terms of opening up communication spaces and whatnot. But I personally have always felt like moderation, community management, and having responsibility over culture is actually really important, and I think thats one of the reasons that I ended up leaving Twitter so earlyit was just a fundamental difference about the approach to those things. I think so much emphasis was placed on scaling and going after the celebrity crew and all that kind of stuff in the early days that they kind of lost sight of what it meant to run and have a community. In the really early days, there werent too many social networks around, and we definitely looked to communities like Flickr, which had a strong position on moderation and on community guidelines. For me, that was always really important.

Do you think that Twitters policies have changed drastically since you left over a decade ago? Especially this year, not even just with Trumps latest feud but also with coronavirus misinformation and the 2020 presidential campaign?

I think its stayed the same more than it should have. They should have been a lot more proactive, especially with the scale and the resources that they have. I would have loved to see a lot more effort placed into figuring out community questions. Theyve been doing experimentssome hopefulbut the recent reply feature [where a user can limit replies], they launched by trolling people, and that was just really disappointing. [Cook is referring to these tweets from the @Twitter and @Twittercomms accounts.] It feels like a lot of that stuff just isnt as fleshed out as it should be.

I think it comes down to that they basically dont have any competition. We need different communities with different editorial and community standards. So if Trump wants to go and have a conspiracy theory Twitter, like a separate MAGA-land, that would be fine.* The rest of us could largely ignore it, and itd basically wither and die. But because Trumps tweets are mixed in with all of this other important conversation, its hard to reconcile those things.

What was your immediate reaction to Twitters decision to slap those warning labels on Trumps tweets? Did you see that as a landmark move for the company, or did you think that perhaps its not as important as onlookers are making it out to be?

Its a good step, but it doesnt go far enough. Twitter is a private company and has every right to kill his account. That doesnt limit his free speech at all. Hes the president of the United Stateshes got whatever platform he wants. I would like to actually see quite a lot more strong action. With the Joe Scarborough conspiracy, if it was any other person than Trump making threats and creating a dangerous situation for a private person, their account would be disabled right away. So I guess Id like to see more of that, and more fact-checking in general, and moderation.

I really strongly believe that the culture of the community is set by its acceptable parameters. So if you have a community where abusive behavior is acceptable, then people will go there to abuse other people. And if you moderate and you actually have some community standards, then they wont. I think thats true in all parts of life, and because Twitter is such an important public space, it would be nice if we had stronger community standards that reflect the sort of society that we actually want to live innot just some sort of free-but-harmful-speech-protecting space.

For more on Twitters fact-checking of Trump, listen to What Next: TBD.

Correction, May 29, 2020: This article originally misquoted Blaine Cook as saying that an alternative platform to Twitter could be a mega-land. He said it could be a MAGA-land.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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What Twitter Should Have Done Differently From the Very Beginning - Slate

KVUE Senior Reporter Tony Plohetski spoke to Chief Brian Manley Saturday morning about protests in Austin.

AUSTIN, Texas As some Austinites plan to protest the deaths of George Floyd and Michael Ramos this weekend, Austin Police Chief Brian Manley said the department has a plan in place.

KVUE Senior Reporter Tony Plohetski spoke to Manley Saturday morning about the protests that broke out late Friday night in front of APDheadquarters, as well as the protest planned there Saturday afternoon.

Manley said that APD will have a large number of officers in place, many of them visible and many that will not be visible unless the department needs to bring them out. APD has also coordinated with other local law enforcement agencies who will provide support if needed.

Manley stressed that APD understands the "wide range of emotions" playing out across the country and said that he believes the City of Austin and APD have always provided a space for people to make their feelings known. However, Manley said the department won't stand for violence and destruction.

"I think we have a history of allowing people to express their opinions, their frustrations, whatever the issue is. But we have to ensure that it's done in a manner that's safe for all and that we do not allow for acts of violence, destruction, criminal mischief and the like," Manley said. "[We plan to] give people the space to exercise their constitutional right to free speech on issues that are very concerning to everyone. But we have to ensure that they're doing it in a way that doesn't jeopardize the health, safety or property of others."

Manley said that acts of violence and vandalism do nothing to advance a cause, and that destruction of City facilities and public properties just takes money away from funding to address issues that plague the Austin community, such as affordable housing, homelessness and mental health issues.

When asked about Friday night's protest, Manley said that he thinks the way it played out wasn't very constructive and that it was when things turned to acts of violence that the department had to make arrests.

"It didn't seem like it was a lot of conversation towards the issues at hand, but instead it was just berating some of the officers that I can promise you probably are just as concerned about the incidents that have ... happened as the community is," Manley said. "And so, when we have people that ... choose to then take the sort of action towards the men and women who are sworn to protect them such as throwing rocks or bottles at the officers as they did last night or spitting on the officers we will not stand by for that. And that is when things break down and the potential, you know, for bad outcomes happens."

You can watch the full interview with Manley hereor below:

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Austin police: Chief says action will be taken against violence - KVUE.com

The Madras High Court, in a recent verdict, exonerated a group of journalists of the charges of defamation over certain reports including those against the then chief minister of Tamil Nadu. Justice Abdul Quddhose said that a public servant or a constitutional functionary must be able to face criticism and that the state cannot use criminal defamation cases to throttle democracy.

Section 199(2) of the Criminal Procedure Code (Cr.PC) is a curious law. It enables the state and its functionaries to utilise the office of the public prosecutor to move a written complaint to the Court of Session and to prosecute people, claiming that the President, the Governor or a minister is defamed. Previous sanction of the government is essential for such complaints.

The phrase defamation of a public functionary is, to some extent, ironical. The text of the provisions needs deconstruction for a proper understanding of the offence. Section 499 of the Indian Penal Code (IPC) deals with the offence of defamation and it is the same offence that is referred to in Section 199 of the Cr.PC. The second exception to the IPC provision says that expression of an opinion, in good faith, concerning the conduct of a public servant in the discharge of public functions, or his character is not defamation. With this exception, the need to incorporate it in the Cr.PC and to arm the state with government machineries is indeed questionable. In cases of personal defamation, the concerned public functionary can move court personally without the aid of Section 199(2). This is clear from Section 199(6) of the Code. A public functionary is generally criticised for their public activities, which when done in good faith, is not defamation.

In Subramanian Swamys case (2016), the SC refused to strike down the provisions relating to criminal defamation, which in turn kept Section 199 also alive. However, Indian experience shows that Section 199 has been abused by the political executive of all colours from time to time to suppress dissent and stifle criticism. It is also pre-censorship in disguise. It has a chilling effect on whistleblowers.

The argument that defamation as such should cease to be a criminal offence does not appear to be correct. As such, Sections 499 to 502 of the IPC have their own rationale and purpose. A private action for defamation by invoking penal provisions has justification insofar as it seeks to protect the individuals who are entitled to preserve their reputation. But the problem with Section 199 is it conceives public functionaries under the state as defamable and motivates them to repress the dissidents with the instrumentalities of the very same state. Thus, every use of the law becomes a misuse, for it lacks democratic legitimacy.

The High Courts admonition is a great stimulus package to the free speech jurisprudence that badly needed it during the time of the pandemic. The verdict has lessons to offer for democracies across the globe during and after the pandemic. Studies indicate that more than hundred regimes in the world declared a state of emergency in one way or another after the spread of Covid-19. Free speech faces newer threats during the time of pandemic. The United Nations High Commissioner for Human Rights, Michelle Bachelet, openly warned against the dispensations worldwide from becoming illiberal and abusing the emergency power on the ground of medical exigencies.

The recent verdict also alerts the judiciary in India at a time when its top court is critiqued widely for almost going back to the infamous ADM Jabalpur moment. It was in ADM Jabalpur (1976) that the Supreme Court, by majority, held that the fundamental rights could be suspended during emergency, at the will of the political executive. On issues ranging from internet rights to the plight of the migrant workers, the top court had remained insensitive during the most precarious times.

In India, free speech faces several challenges. Even an innocent tweet, comment or speech is taken as the basis for booking people in different states irrespective of the party in power. Political leaders, public activists, journalists, students, writers and cartoonists are targeted. The politics based on such First Information Reports is essentially undemocratic. In many such cases, instead of Section 199 of the Cr.PC, the political governments use other devices in the IPC. There are outdated laws dealing with sedition (Section 124 A) or blasphemy (Section 295 A) that are misused. The nation needs a liberal reformative agenda to do away with such obsolete and dangerous remnants of the colonial regime.

Potential for misuse is not a legal ground to strike down the law (Shreya Singhal, 2015).Therefore, it is vital to ensure that freedom of speech is not unreasonably curtailed even during a state of emergencyfinancial, political or health. The European Court of Human Rights has laid down the correct proposition: Freedom of expression ... is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population (Handyside v. United Kingdom,1976).

Kaleeswaram Raj

Lawyer, Supreme Court of India

(kaleeswaramraj@gmail.com)

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The state should listen to its critics - The New Indian Express

Oh, the delicious irony.

The US President took to the social media platform this week to complain about bias against conservatives by social media companies after Twitter fact-checked some of his tweets about mail-in voting.

Twitter had announced it was working to expand existing product features and policies after the widower of former congressional aide Lori Klausutis wrote a letter to the company asking them to delete tweets by Trump and his son, Donald Trump Jr., implying that MSNBC host (and Klausutis then-boss) Joe Scarborough may have murdered her.

While those tweets werent deleted, Twitter added a disclaimer to another Trump tweet that stated mail-in voting would be substantially fraudulent and result in a rigged election which led to an explosive rant by the President on the platform.

Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen! he wrote, later threatening to shut down social media companies that totally silence conservative voices.

We will strongly regulate, or close them down, before we can ever allow this to happen, he added.

Given the President has averaged about 28 tweets a day this year to his 80 million-plus followers, this seems unlikely.

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Only in America: Trump threatens to shut down Twitter in rant about 'free speech' on Twitter - The Donaldson Sisters - The Donaldson Sisters