The internet has become a part of everyones lives as compared to the impact it had even a decade ago
Your Amazon reviews have the same impact as your Facebook status update
The amendments to the draft IT Intermediary Guidelines, 2018 initiated a new debate
Editors Note: This article was written before the Personal Data Protection Bill was approved by the Union Cabinet with undisclosed changes to the Draft version of the Bill which this author has based their opinions on. Therefore, some opinions expressed below may no longer be applicable under the revised Bill. You can check all the articles of this series here.
In August 2017 Justice Abhay Manohar Sapre very poignantly noted, while reading out the judgment on the Puttaswamy case that right to privacy of any individual is essentially a natural right, which inheres in every human being till he/she last. It is indeed inseparable and inalienable from human beings.
In other words, it is born with the human being and extinguishes with the human being. The right to privacy is a fundamental right that is distinctly connected with human dignity by securing their inner thoughts and expressions from any form of unwanted intrusion.
Today, the internet has become a part of everyones lives as compared to the impact it had even a decade ago. People from all backgrounds, genders and ages have an online presence. Whether it is for business purposes or personal, most conversations and communications amongst people happen online. From buying groceries to speaking to your mother at the other end of the world, everything can be achieved with a good internet connection, a usable device and an online communication platform.
Along with this increase in communication, comes a boost in public expression. The internet has made it possible for people to express their thoughts, opinions and arguments on everything in the world from avocados to the US elections to the world at large. These expressions spark debates, encourage conversations and lead to discussions amongst like-minded people, helping people feel a sense of community and camaraderie.
It is clear with the widespread use of the internet across all communities, societies and sectors that the pervasiveness of the internet is worldwide, making it a vertical form of business and not horizontal anymore. The internet and social media have become a staple part and act as the foundation of human expression in todays times.
Your Amazon reviews have the same impact as your Facebook status update i.e. they both help you communicate your personal opinions to those who you voluntarily want to convey them to. Therefore, freedom of expression is highly dependent on the freedom to express over social media. Therefore, making the internet a safe and free space is essential to uphold this fundamental right that is allowed for each human being.
The platforms mentioned above have been termed as intermediaries, which is a platform for user-generated content. They use the capabilities of the web to act as platforms where information is shared. Intermediaries are themselves not seen as publishers of content but rather serve as the place where user content is shared. The question that arises with the growth of intermediaries is the accountability that they have on the content that is shared on their platforms.
What responsibilities and protections come with hosting Indian user content and how liable are they for the content shared. The amendments to the draft IT Intermediary Guidelines, 2018 initiated a new debate on the curbing or censoring of this content equalling to the violation of the content creators freedom of speech and expression.
The proposed draft rules have gone beyond the scope of the provisions of the parent act and erodes the safe harbour protection available to intermediaries under section 79 of the IT Act. As noted in the landmark judgement of Shreya Singhal v. Union of India, the intermediary is called upon to exercise its own judgment under Rule 3 sub-rule (4) and then disable information, when intermediaries by their very definition are only persons who offer a neutral platform through which persons may interact with each other over the internet.
Thus, it then solely depends upon the intermediaries subjective sense, to take down content, which has a chilling effect on freedom of speech and expression. The requirement for intermediaries to subjectively determine the legality of an expression should be replaced with an objective test. The objective test should be such that it does not create an obligation for the intermediary to go into the adjudication of a legal claim or into the investigation of facts and circumstances.
The rules are procedurally flawed as they ignore elements of principles of natural justice and lacks safeguards. Under the rules, the third party provider of information whose expression is censored is not informed or made aware about the takedown, let alone given an opportunity to be heard before or after the takedown. There is no redressal mechanism for the aggrieved user or third party uploading or providing the content, to appeal the decision of the Government agency in the courts.
Reasoned state action must recognize that their liabilities must necessarily vary with the specific type of service that each provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with Article 14. There needs to be a classification made with respect to the type of intermediaries. A singular watertight formula cannot be applied to all intermediaries. There needs to be a tactical separation between User Generated Content space and Curated Content providers. The guarantee of equal protection of laws requires equality of treatment of persons who are similarly situated, without discrimination inter se. It is a corollary that people differently situated cannot be treated alike.
Once the government recognises different types of intermediaries, a differential regulation needs to be established as well. Intermediaries can be classified into:
Distinct classes of intermediaries should be created and due diligence requirements be assigned as per the functions performed by each of intermediaries.
The guidelines mandate intermediaries to disable access to unlawful content without the requisite procedural safeguards under Rule 3(8). Moreover, the guidelines leave it on intermediaries to remove the content from their platforms proactively, which could amount to censorship. The issue with proactively trying to censor content is that its effects can spill over into censorship and impact the freedom of speech, internet is supposed to enhance and enable.
Additionally, these rules have not been understood context of Section 79 of the IT Act which is an enabling provision. It needs to be clarified that these guidelines do not create new offences but instead provide the intermediaries a safe harbour to avoid taking liability for most offences.
In order to combat this gap in the regulation and the blatant violation of human rights a balanced approach needs to be taken where when intermediary platforms are used for the transmission of allegedly obscene and objectionable contents, the intermediaries/service providers should not be absolved of responsibility. And at the same time when they take down content that does not fit into the category of offensive/obscene/threatening, they should be answerable to the creator of the content and via the due process of law provide evidence and reasoning for their actions.
It is clear that a definite obligation should be cast upon the intermediaries/service providers in view of the irreparable damages caused to the victims through reckless activities that are undertaken in the cyberspace by using the service providers platform and make them accountable for the actions they take based on their assumptions or interpretations. Casting such an obligation seems imperative, seeing as how the aggrieved party has no legal recourse or direct contact with the said platform managers.
[The article is co-authored by Kazim Rizvi and Maanya Vaidyanathan, Policy and Engagement Manager at The Dialogue.]
See the original post here:
Over Regulating Intermediaries: Threat To Free Speech? - Inc42 Media
- Here's what the law says about protesting on Texas college campuses - The Texas Tribune - April 25th, 2024 [April 25th, 2024]
- The awkward truth about sex and free speech | Nina Welsch - The Critic - April 25th, 2024 [April 25th, 2024]
- Get the Facts: How far does the First Amendment go? - WDSU New Orleans - April 25th, 2024 [April 25th, 2024]
- NC school adopts free speech policy after firing professor who opposed critical theory - ADF Media - April 25th, 2024 [April 25th, 2024]
- Biden's Government Takeover of the Internet Threatens Freedom of Speech - RealClearPolicy - April 25th, 2024 [April 25th, 2024]
- Professor tackles subject of limiting freedom to express - Yahoo News Canada - April 25th, 2024 [April 25th, 2024]
- Louisiana Tech earns top rating for free speech - Foundation for Individual Rights and Expression - April 25th, 2024 [April 25th, 2024]
- Freedom of speech 'under assault' at Palestine protests in US universities - The National - April 25th, 2024 [April 25th, 2024]
- Is TikTok Protected Speech Or Threat To Americans? Wyoming Legislators Split - Cowboy State Daily - April 25th, 2024 [April 25th, 2024]
- Free Speech Aids Racial Justice. Activists Must Defend It. | Opinion - Harvard Crimson - February 16th, 2024 [February 16th, 2024]
- Progressives Are Ditching Free Speech To Fight 'Disinformation' - Reason - February 16th, 2024 [February 16th, 2024]
- There is a way out of cancel culture but it's not free speech - Times Higher Education - February 16th, 2024 [February 16th, 2024]
- Editor's take: Limiting hate speech not a First Amendment violation - The Pajaronian - February 16th, 2024 [February 16th, 2024]
- Israel's Proposed 'Terror Incitement' Law Is a Dangerous Threat to Freedom of Speech - Haaretz Editorial - Haaretz - February 16th, 2024 [February 16th, 2024]
- Colorado bill tasking attorney general to study online 'misinformation' sparks First Amendment debate - coloradopolitics.com - February 16th, 2024 [February 16th, 2024]
- 10 Worst Censors: 2024 | The Foundation for Individual Rights and Expression - Foundation for Individual Rights in Education - February 16th, 2024 [February 16th, 2024]
- Harvard University's Lifetime Censorship Award: Impact on Freedom of Speech and Journalism - Medriva - February 16th, 2024 [February 16th, 2024]
- Reading is freedom of speech, says 'ABCs of Book Banning' director - KCRW's This...Is Interesting - Podcast en iVoox - iVoox - February 16th, 2024 [February 16th, 2024]
- Freedom of speech or lack of civility? Resident perturbed by others berating Killeen City Council and mayor - The Killeen Daily Herald - October 16th, 2023 [October 16th, 2023]
- Harvard Students Should Know Freedom Of Speech Is Not Freedom From Consequences - The Federalist - October 16th, 2023 [October 16th, 2023]
- FIRE launches six-figure free speech campaign with primetime ... - Foundation for Individual Rights in Education - October 16th, 2023 [October 16th, 2023]
- UGS responds to free speech concerns on campus - The Stanford Daily - October 16th, 2023 [October 16th, 2023]
- UCI Year of Free Speech kicks off with virtual event - UCI News - October 16th, 2023 [October 16th, 2023]
- Book review: A Constitution To Keep: Sedition And Free Speech In ... - Maktoob media - October 16th, 2023 [October 16th, 2023]
- Protestors, supporters gather on HUB lawn for Riley Gaines' Free ... - The Daily Collegian - October 16th, 2023 [October 16th, 2023]
- Editorial: When is free speech not free on college campuses? - TribLIVE - April 27th, 2023 [April 27th, 2023]
- How do you handle free speech issues in higher education, popular discourse? - University of Illinois Urbana-Champaign - April 27th, 2023 [April 27th, 2023]
- Free speech protections are under threat in Texas Legislature - The Dallas Morning News - April 27th, 2023 [April 27th, 2023]
- Should Irish universities introduce mandatory free speech classes? - The Irish Times - April 27th, 2023 [April 27th, 2023]
- Florida House approves bill that would change rules around campus ... - WUFT - April 27th, 2023 [April 27th, 2023]
- Free speech bill 'could protect extreme views' - Times Higher Education - April 27th, 2023 [April 27th, 2023]
- Ronald Collins and Ronnie Marmo: Comedy clubs are free speech ... - Independent Record - April 27th, 2023 [April 27th, 2023]
- A notable foundation for freedom of speech - Newsday - April 27th, 2023 [April 27th, 2023]
- Troy, Alabama A&M receive poor 'red' rating from campus free ... - 1819 News - April 27th, 2023 [April 27th, 2023]
- Freedom of Speech Pros and Cons: What Both Sides Think - March 8th, 2023 [March 8th, 2023]
- What is the freedom of speech? - Alliance Defending Freedom - January 25th, 2023 [January 25th, 2023]
- freedom of speech | Wex | US Law | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- First Amendment: Freedom of Speech | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- Freedom of speech online: What are the Florida and Texas laws the US top court could hear a challenge to - The Indian Express - January 25th, 2023 [January 25th, 2023]
- Elon Musk says new Twitter policy is freedom of speech & not freedom ... - January 4th, 2023 [January 4th, 2023]
- CNN Calls Freedom of Speech 'Nonsense' in Moronic Rant - December 12th, 2022 [December 12th, 2022]
- Ex-CNN journo and Nobel Peace Prize laureate Maria Ressa explains why ... - December 12th, 2022 [December 12th, 2022]
- Hate speech - Wikipedia - November 27th, 2022 [November 27th, 2022]
- Freedom of Speech and Expression | CSCE - November 25th, 2022 [November 25th, 2022]
- Why Is Freedom Of Speech Important? The Relevance Explained - November 25th, 2022 [November 25th, 2022]
- 'Freedom Of Speech, But Not Freedom Of Reach': Musk Reinstates Kathy Griffin And Jordan Peterson Amid New Policy But Not Trump Yet - Forbes - November 21st, 2022 [November 21st, 2022]
- Freedom of speech is in jeopardy - The Ridgefield Press - October 15th, 2022 [October 15th, 2022]
- The Alex Jones trap: How 'owning the libs' can turn into a self-own for conservatives - Washington Examiner - October 15th, 2022 [October 15th, 2022]
- Just released: The 2022-2023 College Free Speech Rankings - Foundation for Individual Rights in Education - September 7th, 2022 [September 7th, 2022]
- Russian Court's Ban of Newspaper Novaya Gazeta is a Punch in the Face of Freedom of Speech - Novinite.com - September 7th, 2022 [September 7th, 2022]
- Bangladeshi Editor Rifat Munim Supports Salman Rushdie's Freedom Of Speech: 'Why React To The Book Or The Cartoons In This Childish Way? Why Show... - September 7th, 2022 [September 7th, 2022]
- Crikey! The exclamation of Free Speech - RadioInfo Australia - Radioinfo - September 7th, 2022 [September 7th, 2022]
- Batley row 'shows how extremists are using blasphemy to attack free speech' - The Telegraph - September 7th, 2022 [September 7th, 2022]
- Expansion of Title IX Tramples First Amendment - California Globe - September 7th, 2022 [September 7th, 2022]
- BRACK: S.C. Senate is poking free speech bear on abortion Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Will AG Ken Paxton join the fight for freedom of speech? - Wilson County News - July 29th, 2022 [July 29th, 2022]
- The UK Government Wants to Scrap the Human Rights Act. Here's What to Know. - Global Citizen - July 29th, 2022 [July 29th, 2022]
- Cancel culture empowers the powerful at everyone elses expense - Foundation for Individual Rights in Education - July 29th, 2022 [July 29th, 2022]
- Repressive executive order from UNC Chapel Hill student government cuts off funding for pro-life individuals, causes - Foundation for Individual... - July 29th, 2022 [July 29th, 2022]
- Editorial: Alex Jones' lessons on the First and Sixth Amendments - CT Insider - July 29th, 2022 [July 29th, 2022]
- NEW for 7/29: How abortion now works in S.C., and more Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Why Does The State Panic Over Free Speech? - The Friday Times - July 27th, 2022 [July 27th, 2022]
- How to Fix the Bias Against Free Speech on Campus - The Atlantic - July 17th, 2022 [July 17th, 2022]
- Universities are in denial over the free-speech crisis - Spiked - July 17th, 2022 [July 17th, 2022]
- Who Really Benefits From the First Amendment? - Tablet Magazine - July 17th, 2022 [July 17th, 2022]
- Legal Eagle: Is free speech abused to flout others rights? - Free Press Journal - July 17th, 2022 [July 17th, 2022]
- Free speech 'stifled' as universities cancel record number of speakers - The Telegraph - July 17th, 2022 [July 17th, 2022]
- The Online Safety Bill could lead to the biggest curtailment of free speech in modern history - The Telegraph - July 17th, 2022 [July 17th, 2022]
- LAWSUIT: Professor sues University of Washington after admins punish him for 'inappropriate' opinion - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- VICTORY: Art institute reverses expulsion for student who retweeted sexual art - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- Twitter and Freedom of Speech | News, Sports, Jobs - The Mining Gazette - Daily Mining Gazette - June 26th, 2022 [June 26th, 2022]
- Amber Heard, the ACLU, and the Future of Free Speech - Reason - June 26th, 2022 [June 26th, 2022]
- In my view: Freedom of speech is important - Slough and Windsor Observer - June 26th, 2022 [June 26th, 2022]
- New AGB Resource Prepares Higher Education Board Members to Balance Freedom of Speech with Diversity, Equity, and Inclusion - PR Web - June 26th, 2022 [June 26th, 2022]
- 'What's the point inviting me on!' Piers Morgan and student erupt in free speech row - Express - June 26th, 2022 [June 26th, 2022]
- Binance CEO says 'free speech is very hard to define' - Business Insider - June 26th, 2022 [June 26th, 2022]
- The Deeper Significance of Justice Thomas's Second Amendment Opinion - The Epoch Times - June 26th, 2022 [June 26th, 2022]
- Twitter and freedom of speech - Washington Times - June 22nd, 2022 [June 22nd, 2022]
- Bill of Rights to strengthen freedom of speech and curb bogus human rights claims - GOV.UK - June 22nd, 2022 [June 22nd, 2022]
- Twitter and the freedom of speech | Opinion | journal-spectator.com - Wharton Journal Spectator - June 22nd, 2022 [June 22nd, 2022]