Article 19 of the Universal Declaration of Human Rights gives every person in the world the right to freedom of opinion and expression, including the right to express and receive information “regardless of frontiers”. Freedom of speech has, regardless of it being a universal right, been protected patchily. Even the free speech bastion of the the United States, and to a far lesser extent, the United Kingdom and western Europe, have historically placed restrictions on free speech, and continue to do so in various limited ways.
India’s experience of free speech has, despite the Constitutional guarantee subject only to reasonable limitations, been far from luminous.
Such restrictions have been even more severe when the speech in question has involved questions of religious identity or sovereignty.
Salman Rushdie’s book, The Satanic Verses, was subjected to restrictions on its import into India, rather than a blanket restriction. That no Indian publisher chose risk printing the book in India, or to challenge the customs ban, reveals how little protection both the law and public culture offer those engaged in contentious, or even dangerous, speech.
India’s Growing Intolerance for Free Speech
The recent row over the tweets of celebrities in the US and elsewhere has led to the government officially protesting against speech whose authors are not in India, and thus outside the reach of the State legal frameworks and coercive instruments.
However, the State’s attempt to clamp down social media’s transnational reach tests the UDHR’s pre-internet era affirmation of the right of speech to be disseminated across borders.
By seeking to control the cacophony in the proverbial marketplace of ideas, India is accused of keeping company with States on the wrong end of the freedom of speech spectrum, like China and Iran.
India, according to one index, is the world leader in internet shutdowns. Journalists, film makers, comedians and authors have had to face police investigation and even imprisonment for speaking their mind. Individuals have run into legal trouble simply for stating their minds on Facebook and Twitter. These efforts to restrict speech make for dire reading; laments on the death of free expression are growing louder.
Is India Emulating China?
The Indian government’s response has, even by the none-too-high standards set since Independence, been heavy handed.
Regulating speech in the age of social media is, of course, a complex issue. There is a contest for regulating and governing speech, with differing ideas of who should regulate what, and how. This debate is playing out across in all national jurisdictions, as well as between states, private corporations, civil society organisations and political organisations. It is far from clear exactly what will emerge when the dust eventually settles.
One model is, clearly, Chinese. The Great Chinese Firewall is a misnomer. This is because China not only seeks to keep out critical foreign sources of information, but also tightly regulates speech within its own frontiers. In addition, it uses the state’s considerable reach to monitor, conduct surveillance, and censor speech worldwide.
A demonstration by an Uighur living in the UK would earn them detention in China.
A recent US prosecution indicts a Chinese Zoom officer for conspiring with the Chinese state to conduct systematic surveillance worldwide. In one instance, China cut off a Zoom call by Chinese dissidents in the US, who were conducting an online remembrance on the Tiananmen Square massacre. Zoom has distanced itself from its officer, described by dissidents an “agent of persecution.” But the fact that Zoom was allowed to operate in China after it agreed to collaborate with the state’s speech restrictions raises questions of its complicity.
China’s Cyber Security Law requires network operators to ensure national security and stability. Prosecutors in the Zoom case have argued that it calls into question whether any business with “significant business interests in China is immune from the coercive power of the Chinese Communist Party.” The Chinese-imposed Hong Kong Security law also imposes criminal liability for speech by Hong Kong residents which violates what Beijing believes to be its national security interests.
These developments are not trivial. China is not an outlier, but the second largest economy in the world. What it does will, inevitably, be a model for many others.
Should India Follow Lex Americana, Instead?
The alternate model —broadly operating in democratic states—is Lex Americana. Tech giants, primarily US corporations, operating under the protection of US power, are governing the speech disseminated and received across frontiers. In the Zoom case, the US government isn’t only defending free speech, but also protecting its regulatory control of technology giants.
Facebook is facing litigation in a US court brought by Gambia, the state also pursuing genocide charges against Myanmar at the International Court of Justice, for its hosting of posts which incited and fuelled violence against the Rohingya. The United States has long asserted various kinds of extra-territorial jurisdiction. Individuals, states, and corporations have all been subjected to US sanctions. For instance, Indian entities which purchase oil from Iran oil can face sanctions from the US, potentially cutting them off from key elements of the international financial system.
US efforts to protect its tech giants has driven a growing confrontation with Europe. Last year, the US threatened sanctions against France for seeking to impose a tax on digital transactions, a proposal that India is looking at seriously. The US based its argument around diplomatic protections for US corporations. Similarly, the European Union’s tighter laws on data protection are a point of rift with the US’s diplomatic protection of the tech giants. The US CLOUD Act, in apparent disregard of the principle being asserted in Europe, allows US law enforcement access to data held internationally.
Should Twitter Have Listened to Indian Government?
The recent notices to Twitter in the context of the Indian Information Technology Act are another example. When asked to take down certain Twitter handles, including those belonging to the magazine Caravan, Twitter initially complied, but soon restored them. This was done, ostensibly, after an initial Twitter review. This earned Twitter the opprobrium of the Ministry of Information and Technology, which has threatened Twitter executives with criminal actions. Twitter functions in multiple jurisdictions, and has taken the stance that its data storage and content policing is subject to US laws.
Twitter and other Big Tech firms are also quasi-independent in their regulation of speech. While stating that they are nothing more than intermediaries serving up a technology platform – a notice board in the middle of a digital town square – they use a combination of neighbourhood watch (reporting), censors (community standard reviewers) and algorithms to regulate content on their platforms.
After criticism of their inaction, as well as accusations failure to act against hate speech and incitement to genocide, tech giants have stepped up their regulation or censorship. The new political climate in the United States have strengthened the push towards Big Tech regulation of speech.
India Cannot Do Much About Those Not on Its Soil
The banning of Donald Trump from Twitter and Facebook, and even apparently Pinterest, has been followed by the bizarre news that the former US President had sought revocation of his Facebook ban from Facebook’s Oversight Board. One can imagine the storm that might break out if the Indian Prime Minister, even at the twilight of his term, were to be banned for Twitter for—purely as a hypothetical scenario—spreading false news or inciting hate.
India’s regulations and courts have yet to come to terms with regulating, let alone repressing, speech extra territorially. While Aatish Taseer may be subject to nitpicking on his OCI application, in the aftermath of his Time cover story on Prime Minister Narendra Modi, he can sit in New York City deriding the government, and be read even in Varanasi.
Who is responsible for this legally, were it to cross the ever shifting line of criminal and regulatory law – is a story yet to be written.
(Avi Singh is an advocate who specialises in transnational law and serves as the Additional Standing Counsel for the government of NCT of Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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