While hate speech is a complicated problem, the power of India’s huge, educated and intellectually active population could be harnessed as a crowdsourced version of moral policing that strives to be fair to everyone.
A Small Intro
Hate speech, or inflammatory speech, has always resulted in censorship throughout history. The definition of hate speech has been ambiguous, but usually narrow and tailored to the interests of the ruling power of the state. The definitions of “hate speech” typically depend on the cultural and moral ethos of any society; when societies have been well-defined, for example through geography, it was relatively easier to reach a consensus on such a definition. This was because that definition would only be enforced in a certain area by an enforcing authority that was known and respected, or feared, by everyone in that area. The rise of the internet, a global means of communication, has stripped away such geographical boundaries. While this has led to rapid technological growth through the cooperation of people from all over the world, it has also set up very peculiar questions of law and its enforcement. The very definition of “hate speech”, already ambiguous, was made even more so when made applicable to anything written on the internet, since it could be created by anyone, anywhere in the world, posted to a server anywhere in the world, and be accessed by (or targeted at) anyone, anywhere in the world. This post seeks to identify a possible solution to this conundrum within the specific context of India.
SECTION I: Context
A History of Hate Speech in India
The right to freedom of speech in India has been enshrined within the Constitution of India itself. All citizens have the right to freedom of speech and expression.[1] However, the same Constitution also provides for the State to make any law “in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[2] Since the Constitution contains allows the State to make restrictions on the basis of public order, decency or morality, which are quite broad in their scope and ambiguous in their definition, this also gives the State powers to create laws regulating freedom of speech.
Defining Hate Speech
Note that the Constitution of India, as excerpted above, is quite ambiguous and can be interpreted by the State to make broad regulations for the purposes of restricting hate speech online. This was, in fact, done by the State through the promulgation of the Information Technology Act, 2000. Under this Act, online hate speech was defined as any information sent by means of a computer resource or communication device that is grossly offensive or menacing in character, or any information that the sender knows to be false but sends anyway, with the intent of “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.[3] Any person engaging in such activity could be sentenced with imprisonment up to a term of three years and a fine.
Prosecutions are generally conducted in India through the citation of not just one, but multiple offences under law that may have significant overlap, without triggering double jeopardy.[4] For example, violation of hate speech laws under Section 66A will also trigger procedural rules that give the police the ability to arrest without warrant,[5] the ability to investigate cognizable offences,[6] and for offences against the State, or the criminal conspiracy to initiate such an offence.[7] This gives overarching powers to the State for restricting freedom of speech under the garb of regulating hate speech.
Restricting Hate Speech
Along with Section 66A referred to above, a complementing provision allows the government to block public access to any information through a computer resource.[8] Section 69A of the Information Technology Act allows the State to direct “any agency of the Government or intermediary” to block access to any information on any computer resource. For the purposes of this act, a “computer resource” has been defined as a “computer, computer system, computer network, data, computer database or software”.[9] Essentially, this allows the government almost completely unrestricted powers in blocking and filtering access to any website or computer on the internet. Through this provision, “intermediaries”, who have been defined as any person who “receives, stores or transmits” an electronic message on behalf of another person,[10] also have the obligation of complying with the government’s request for blocking or filtering access to any content on any such computer resource.
The Indian Situation in Practice
A recent example was the arrest of two girls for a post made on Facebook that was considered “hate speech” under the laws stated above, but was actually nothing more than a political comment.[11] The girls were charged first charged for making statements promoting enmity between different groups under the Indian Penal Code,[12] which was then changed to “statements creating or promoting enmity, hatred or ill-will between classes”[13], which was finally changed to a charge under Section 66A of the Information Technology Act, 2000.
The arrest had made major headlines in India and around the world[14], with general condemnation of the misuse of a section that was too broad, for the promotion of political motives.[15] Many such arrests were made, which resulted in a Public Interest Litigation (a form of class-action lawsuit) made before the Supreme Court of India, the highest judicial authority in the country.[16] Upon hearing the case, the Supreme Court of India determined Section 66A of the IT Act as unconstitutional and overbroad, and struck it down through a judgment in March, 2015.[17][18]
The fact that the Supreme Court has struck down this provision does not completely stop the government from enforcing draconian measures under the guise of hate speech, however. The Supreme Court only ruled for one provision, but as stated above, the State can always prosecute under different laws in India to accuse a person for inflammatory content. In most cases, Section 66A would be complemented with an enforcement of the following Sections of the Indian Penal Code: Section 153 (provoking, or intent to provoke riots); Section 153A (producing enmity between different groups); and Section 298 (deliberately hurting religious sentiments). The sections are also very broad, with challenges being issued for these to be struck down by the Supreme Court.[19]
Therefore, the issue of regulating hate speech online is still very much an unresolved issue in India. While progress has been made towards reducing the powers of the Government, there are still instances where people have been arrested under separate provisions for what was essentially hate speech online.[20]
SECTION II: Identifying Problems
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Free Speech
The issue of hate speech always carries itself as a “restriction” to the right to freedom of speech. Under Indian law, this has been defined under the Constitution of India as an inalienable right to citizens[21] with certain restrictions set out by the State for the protection of the country.[22] This Article under the Constitution of India is extremely broad and has been interlinked with other rights, such as the right to equality before law[23] and the protection of life and personal liberty.[24] Therefore, while the State does not have extensive powers to meddle with this right, some provisions do exist for the enforcement of restrictions, as a method of protecting India and stopping discrimination on the basis of religion, language, gender, etc. These powers must be balanced with the idea of free speech on the internet.
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Cyber Security
It is important to ensure that any measures adopted for the restriction of hate speech do not cause cyber security problems for individuals and the country. For example, technological solutions such as giving the Government backdoor access to various internet platforms also puts citizens at risk of unnecessary and “Big Brother”-esque surveillance. Such backdoors could also be used by enterprising hackers and vigilantes to wreak havoc.
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Internet Governance Architecture
Any technological or regulatory measure adopted by the Indian government must also pass muster with the international internet governance architecture, which includes the Internet Governance Forum (IGF), the International Telecommunications Union (ITU) and various technological groups such as the Internet Engineering Task Force (IETF). For example, Pakistan’s use of blackholing for restricting access to Youtube, which almost led to problems for the whole internet,[25] should be completely avoided.
SECTION III: Possible Solutions
For our purposes, we will be working with the existing powers of the Indian Government in setting restrictions for the regulation of hate speech as proposed under Article 19(2).[26] This means that the Government has the power regulate any speech on the internet considered as negatively affecting public order, decency or morality, and generally causing enmity or provoking riots between groups on the basis of ethnicity, language, religion, etc. Note that hate speech, defined as such, is a major problem in India. With twenty-two official languages defined under the Constitution of India, and an amalgam of every major religion in the world coexisting in the country, every part of the country has a different trigger for causing hatred or rioting.
Outline of the Solution
As stated above, the Government already has the right to enforce blocks and filters on information being stored on a computer resource.[27] However, this is a very broad power and can lead to massive misuse. I’d want to suggest that such a power be well-defined, with checks and balances inherent in the tripartite system of governance prevalent in India.
A general overview of the solution is as follows: instead of allowing the government or major political party to determine what should and should not be considered hate speech, this must be left to the broad consensus of citizens of the country. The government should create a separate online portal for the logging of accusations of hate speech against a particular website, or content within such website, and then allow users to vote on whether such content can be considered hate speech. The owner or creator of such content must be given a chance to defend that content through the same online portal. If, despite such a defense, the votes reach a particular, well defined, threshold (which may be as a percentage of total votes cast), the Government may direct such offending material to be taken down by the ISPs; if such content or website is hosted outside the country, then the ISPs may be directed to block and filter access to it. This filter or block may, of course, be appealed against before a court of law.
Detailed Solution
1. The Online Portal
This portal should only deal with hate speech that is being spread online. The content being displayed on the website may be accessed only by registering on the website, which would require multiple verifications to ensure that the user is a citizen of India. For example, the popular mobile app Airbnb, where users post their own homes for other unknown internet users to stay, uses the concept of “Verified ID”[28] to build trust amongst the participants and ensure that they are real. This is done by uploading a scan of a government-issued ID, linking the account with a social network account like Google, Facebook or LinkedIn, uploading a profile picture and providing Airbnb with one’s phone number and address. A similar authentication system can be used for users of the online portal for hate speech, with only IDs issued by the Indian government being recognized.
The reason for multiple online authentications is to ensure that a targeted website is not bombarded by anonymous bots and trolls for the purposes of ensuring that the website goes offline, for various vested interests. Maintaining this level of trustworthiness amongst users is especially important when the basic issue is adding restrictions to the idea of freedom of speech. Websites must not be taken offline simply because one group is more technologically proficient than the other at spamming votes for or against the content on that website.
2. The Voting Process
This online portal should be organized in a manner that all content can be categorized into “levels” of hate speech content. This means that content may be voted on a sliding scale of “not offensive at all” to “extremely offensive”. This would allow the government to determine action to be taken against the website as well as its owners.
Further, there must be a strict time limit for such voting to occur. Hate speech and inflammatory speech usually snowballs quite quickly. Building upon the hatred and intolerance created by seemingly innocuous lines of argument to create hate speech that sparks major riots can happen without such a growth being noticed.[29] Therefore, it is necessary for short deadlines for the voting process.
Other obvious restrictions, of course, are that one user may only have one vote for each issue highlighted in the online portal.
3. Enforcement
Once the website has reached a certain threshold of votes at the end of the voting period which defines it as “hate speech”, the Government, or an agency created by it for this specific purpose, may then direct ISPs to block such content from being accessed publicly. If such hate speech is only a small portion of the website, such as social media portals such as Facebook, Twitter, etc., then the government may request owners of such websites to take down that content due to its hate speech content.
Depending on the “level” of hate speech content voted by users, the government may then also elect for the ISPs to track down the location of the source of the offending material, and if possible, the location of the user that posted such offending material. Of course, this must be restricted to the highest levels of hate speech content only – these may typically include content published by illegal organizations and terror groups.
Further, again depending on the level of hate speech, different punishments may be enacted against the user involved with posting such content on the internet. This may range from fines to motions for imprisonment before a court of law, as may be established under the regulations.
4. Appeal
Once the government has decided to enforce a filter or ban, has imposed fines or prosecuted the creator of hate speech content (and, perhaps, the host of that content, depending on their involvement), such an action of the government may be appealed against through the independent judiciary of India, using the already established codes of civil, criminal and penal procedures.
Affect on Stakeholders
a. Business
This solution requires cooperation of all ISPs and major online platforms with the Government for the purposes of curbing hate speech. Once a website, or some particular content on a website, has been designated as hate speech, it would be the onus of the ISPs and businesses to block such content from public access. While ISPs are obligated to conform with Government mandates on this topic through Section 69A of the Information Technology Act, 2000, major online platforms such as Facebook, Google, Twitter, etc. are not. The Government must form a trust-based relationship with these companies to ensure that they cooperate.
b. Civil Society
Civil society, which includes the public, will have to be actively interested in the regulation of hate speech online. It is quite possible for a website to be considered hate speech simply because opponents of such a designation were not interested enough to participate in the voting process. For this reason, active participation is necessary.
c. Government
The major role of the Government under this solution is ensuring that the online portal is active and has the ability to cope with major traffic inflow. The Government will also be obligated to keep user records secure, since such authentication requires the public to reveal personal information online. The Government may also form a separate task force for the maintenance and monitoring of the online portal for quick and effective enforcement.
The Government must also ensure public visibility of its portal and advertise this solution to nudge as many citizens to participate as possible.
SECTION IV: Conclusion
This solution is by no means perfect; it requires active participation of the public, which may be difficult to achieve. However, through the creation of a voting system and the use of a sliding scale, all users of the online portal would be sensitized to the nature of hate speech, and the affect it has on people. The vastness of India as a country, and the varied cultures, languages and geography makes it very difficult for one part of the country to understand what may cause hatred or be seen as offensive by another part or group in the country. The online portal would allow citizens to self-learn and self-sensitize themselves to this issue. This may translate to lesser hate speech offline as well, since such sensitization would allow people to self-regulate their speech.
Another use of the online portal may be that, after a few years of use, a general theme or consensus would appear on the topics that are considered as hate speech by the public. This would result in greater clarity on the definition of hate speech as such, and perhaps reveal interesting trends in public opinion and the growth in sensitization of the public towards offensive online material.
Hate speech is a major problem in any country. The availability of material online, for free, by anyone around the world has made this an even bigger problem. However, the internet can also be used as a counter to such hate speech, by educating anyone, anywhere in the world, or in a specific country, regarding the need to be less offensive to others.
[1] Article 19(1)(a) of the Constitution of India
[2] Article 19(2), ibid at 1
[3] Section 66A of the Information Technology Act, 2000
[4] Institute of Chartered Accountants of India v. Vimal Kumar Surana, (2011) 1 SCC 534
[5] Section 41 of the Code of Criminal Procedure (CrPC), India
[6] Section 156(1), ibid at 5
[7] Section 196A, ibid at 5
[8] Section 69A; ibid at 3
[9] Section 2(1); ibid at 3
[10] Ibid at 9
[11] “India Facebook arrests: Shaheen and Renu speak out”; http://www.bbc.com/news/world-asia-india-20490823; last accessed: October 12, 2015
[12] Section 153A of the Indian Penal Code
[13] Section 505-2, ibid at 9
[14] Ibid at 8
[15] “India is policing the Internet for all the sad and wrong reasons”; http://www.firstpost.com/india/india-is-policing-the-internet-for-all-the-sad-and-wrong-reasons-531235.html; last accessed: October 12, 2015
[16] “Supreme Court accepts student’s petition challenging Section 66(A)”’ http://www.ndtv.com/india-news/supreme-court-accepts-students-petition-challenging-section-66-a-505976; last accessed: October 12, 2015
[17] “Supreme Court strikes down Section 66A of IT Act”; http://timesofindia.indiatimes.com/india/Supreme-Court-strikes-down-Section-66A-of-IT-Act-which-allowed-arrests-for-objectionable-content-online/articleshow/46672244.cms; last accessed: October 12, 2015
[18] Shreya Singhal vs Union of India; accessible at http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf; last accessed: October 12, 2015
[19] “Subramanian Swamy challenges hate speech law in SC”; http://timesofindia.indiatimes.com/india/Subramanian-Swamy-challenges-hate-speech-law-in-SC/articleshow/47776651.cms; last accessed: October 12, 2015
[20] “Section 66A quashed: Citizens can still be arrested for online posts”; http://timesofindia.indiatimes.com/india/Section-66A-quashed-Citizens-can-still-be-arrested-for-online-posts/articleshow/46683200.cms; last accessed October 12, 2015
[21] Ibid at 1
[22] Ibid at 2
[23] Article 14, Constitution of India
[24] Article 21, Constitution of India
[25] “Pakistan ban led to Youtube blackout”; http://www.telegraph.co.uk/news/uknews/3356520/Pakistan-ban-to-blame-for-YouTube-blackout.html; last accessed: October 12, 2015
[26] Ibid at 2
[27] Ibid at 8
[28] “What is Verified ID”; https://www.airbnb.com/help/article/450/what-is-verified-id; last accessed: October 12, 2015
[29] Bleich, Erik(2011) ‘The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies’, Journal of Ethnic and Migration Studies, 37: 6, 917 — 934