Right of Social Media?


While our Constitution guarantees us many freedoms, the rise of the social media and its accompanying conundrums, has presented a set of challenges, which is uncharted territory for the government. Gajanan Khergamker discusses this scenario.

Freedom is, arguably enough, the most cherished right of mankind. And, among all the freedoms guaranteed by the Indian Constitution under Article 19, it’s the freedom of speech and expression that affects all Indians at the onset. Why, even the exercise of dissent towards the violation of any freedom pivots upon the most basic of them all…speech and expression.

It is this very freedom that primarily guarantees the media, the right to express. Despite being popularly misunderstood, the media in India has no special rights to express as distinct from the others, yet exercises it in myriad ways, tempered with a typical boldness symbolic of the Fourth Estate.

Media and freedom
It is this freedom that empowers the Fourth Estate to hold its own in face of opposition from a powerful legislature, a hard-nosed executive, or a rigid judiciary. If the ‘press’, as media was popularly known in the yesteryears, did not exercise the freedom of speech and expression with such alacrity, millions of human interest stories speaking reams of oppression, exploitation, even trysts with freedom struggles and unlawful regimes, would not have seen the light of the day.

It isn’t that the press in India has the freedom to write about anything or report on any issue in any manner they like. Like all other freedoms, the one of speech and expression isn’t without fetters. Article 19, that guarantees the freedom, also lays down restrictions to the same. So, any act in the exercise of one’s freedom of speech and expression is restricted if it compromises the sovereignty and integrity of the state; security of the state; friendly relations with foreign countries; public order; decency and morality; contempt of court; defamation and incitement to an offence.

And concurrently, the showdowns that members of the media have with the law and polity are triggered by the restrictions whose reasonableness too aren’t open to generic interpretation, but are to be examined by a judiciary which alone is qualified to do so.

The emergence of social media
While the press aka media for all practical purposes had its role chalked out and demarcated for legal purposes, the emergence of the social media, the range of associated tools, and its sporadic use across platforms, has spawned an entirely new and rapidly burgeoning generation exercising the all-pervading freedom of speech and expression, often even without realising the implications of it.

Oddly and not surprisingly, the restrictions to the freedom of speech and expression mostly exercised by the traditional media were peppered with a sense of logic, equity and common sense, more than the understanding of any lofty jurisprudence, was lost on the new entity – the social media.

The emergence of social media comprised not just the easy availability of platforms such as Facebook, LinkedIn, Twitter, Snapchat, Tumblr and others, it was a lot more. These being new entities, the rules of practice and associated pitfalls weren’t exactly known and, instead, evolved along the way. Now, as Social Media raced ahead almost concurrently beyond borders working their ways in legal structures, they provided no relief for the Indian state to avail a point of reference. Also, with the range of diversity in reach and use, an Indian context, say in Gujarat, was drastically unique in comparison to a Californian one in the United States of America, and in, say, the county town of Dumfries in Scotland. It was, like they say, each to its own.

The emergence of social media comprised not just the easy availability of platforms such as Facebook, LinkedIn, Twitter, Snapchat, Tumblr and others, it was a lot more. These being new entities, the rules of practice and associated pitfalls weren’t exactly known and, instead, evolved along the way.

So, countries across the world developed their own trends, and concurrently emerged leaders in social media, who laid the foundation for others to follow. Also, their reach and influence spread swiftly and cheaply to the farthest corners of the world. It isn’t difficult or far-fetched for a Russian writer now to be influenced by the processes of logic laid down by say a Saudi influencer, and vice versa.

That said, the laws of freedoms, particularly that of freedom of speech and expression too face challenges that they were simply not geared for. The threats to national stability and incitement to violence come now from quarters that are way beyond jurisdiction or control.

So, the Islamic State of Iraq and Syria popularly known as ISIS began to ‘source and recruit’ in Indian states through social media, breaking the law here, but remaining safely beyond legal censure or apprehension owing to their physical position. Now, while the State may not have a law to apprehend a situation that’s distinctly unique and sudden in threat, it can bring about an Ordinance or a Bill to address an issue that threatens the democratic fibre of the nation, or simply addresses a legal lacuna. Like the Criminal Law (Amendment) Act 2013 that came into force following the national outrage after the New Delhi gang rape that occurred on 16 December 2012.

Stalking, even online, attracted penal attention. Now, its reach as an offence could be construed as a violation of the accused’s ‘freedom of speech and expression’. Social media’s scope being overwhelmingly comprehensive and increasingly expansive following the surge in ‘shared rights’ and ‘implicit terms,’ the violation too gets shared and extended to parties often even unaware of the extent of their legal liability.

Also, the freedom of speech and expression is directly at risk when organisations, particularly so, publications and media companies, explicitly prevent their employees from posting anything adverse or against company policy on social media platforms. That said, the best kept secret in the industry isn’t really opposed, contested or even resisted for obvious reasons. And, just for the record, the ‘bullying’ isn’t purely an Indian occurrence: Detailed editorial guidelines of the BBC, CNN even New York Times lay down the rules for employees in what could be considered a direct violation of one’s freedom of speech and expression.

Never in India has there been such a surge in dissent and polarisation across industries. If one were to take social media platforms seriously, there is extreme lawlessness across India where all freedoms also, for all, are flouted almost as a rule. Every second social media post in the last three years has been peppered with fears of censorship, government interference in day to day lives, and an autocratic leadership at the Centre. That said, following every election that everyone in the social media touts as ‘the turning point’ and ‘posed to shock’ the government in question, a single party comes to power in overwhelming terms.

This only went on to indicate at the very onset, and now, underline clearly, that social media and most of its players seem sadly oblivious of the electorate’s views. There is a sharp disconnect between Social Media fears and the position at the grassroots. While the freedom of speech and expression is said to be curbed and destroyed by the Centre, the allegations towards the same are preposterously, ear-splittingly loud and vitriolic across platforms, defeating their own premise. If the fears were true, there would be silence. The reality across social media is, today, the most belligerent and for politically motivated reasons. Whether it’s the murder of a Gauri Lankesh, the stalking of a Varnika Kunduor the rape of an Indian nun in West Bengal, the social media has exercised in excessively vitriolic manners, the freedom of speech and expression, making wild conjectures and insidious allegations towards a select section, even without basis.

The Centre maintained a silence even while the blames fell flat, and its stand was vindicated by the truth that eventually tumbled out, as has been the case.

Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.