“As I teach my students at Stanford, Shreya Singhal was one of the defining rulings of modern internet law,” wrote Daphne Keller, director of intermediary liability at Stanford University’s Center for Internet and Society, in The Indian Express in January. A former associate general counsel to Google, Keller was writing to mark the fifth anniversary of the Supreme Court judgement titled Shreya Singhal v. Union of India—a landmark ruling on free speech in general and on the internet in particular.
The judgement struck down Section 66A of the Information Technology Act, 2000 which, the Internet Freedom Foundation, an organization working on digital liberties in India, points out, “was used to send political dissenters to jail across the political spectrum”. It adds: “The judgement also provided relief and greater clarity on the issue of takedowns by online service providers like Facebook, Twitter, Reddit, Instagram, etc. These platforms, which are intermediary, provide services, are utilized by millions today for exchanging information and bringing comfort to each other. However, they are also abused by content that is false and misleading or to make violent threats or hate speech.”
In the judgement, the Supreme Court also held that for speech to be restricted on account of public order, the constraint must satisfy the test of clear and present danger. In a recent interview with Mint, advocate Suhrith Parthasarathy said: “The law must only criminalize speech that reaches a level of incitement and is linked proximately to public disorder. That really is what would mark out the distinction between a reasonable law and an unreasonable one.”
The conversation on free speech and the internet is again centre stage, given the recent controversies involving Facebook and lawyer Prashant Bhushan being convicted for contempt of court over tweets related to the Supreme Court. Mint spoke to Shreya Singhal, a practising lawyer and the original petitioner in the case, on the aftermath of the 2015 judgement. Edited excerpts:
What prompted you to file the public interest litigation?
It was prompted by a dinner-time conversation with my mother on how ridiculous the arrests made under Section 66A of the IT Act were. The fact that there were people being arrested for saying innocuous things on social media, which were being said in other print media as well as news channels, was a shock to me. There were people as old as my friends who were being arrested for saying things which were not only being said by everyone else, but were not objectionable at all.
What did judicial activism mean to you then and what does it mean now?
Honestly, when I filed the petition, I was naive enough to not have thought of the repercussions of the petition, not just for myself but also for citizens. Now, having a better perspective and in hindsight, I have come to realize that activism is a very big and daunting word that has a lot of connotations to various people. I think that if anyone sees any injustice, no matter how small or big, and makes a conscious effort to do something about it, whether anonymous or not, it pushes society in the right direction, especially today. So activism, especially judicial activism, to me is standing up for injustice, something that hasn’t changed in the last five years.
What did you think the striking down of Section 66A meant for civil and digital liberties?
The striking down of Section 66A had a great significance for civil liberties, especially on the internet. It was a vague law that essentially had the power to criminalize any and all expression and speech on the internet and it was being misused immensely. The Supreme Court striking down Section 66A was a big win in the continued fight to protecting civil liberties and fundamental rights. During the covid-19 lockdown, we have all come to realize how important and powerful the internet is as a tool of communication as well as a platform to connect—without free speech, the internet would be a rudderless boat.
What, in your opinion, is the situation on free speech on the internet today?
The threat of prosecution and persecution, not just by the authorities but by private agents, is one that is posed to people exercising their right to free speech. However, we cannot sit quietly and watch from the sidelines. Sometimes the personal cost outweighs the repercussions. Today, more than ever, we need to be a mirror for ourselves and the government so that we don’t become complicit with our silence. Dissent is the most powerful weapon of a democracy.
What more do you think needs to be done in this space?
We need to continue to push back against governmental restrictions on the internet and against free speech. It is always an ongoing battle in democracies. We need to be vigilant and informed about the laws governing the internet and take appropriate action, whether by taking judicial action or through protests.
Over the last five years, a Kashmiri photojournalist has been charged under the Unlawful Activities (Prevention) Act (Uapa) for social media posts, students have been arrested under different laws for Facebook posts and environment activists have received notices under the IT Act. What problems remain with the IT Act and do you see any safeguards that ought to be enacted? How do digital rights tie in to other laws?
The recent overuse of the archaic Uapa is unfortunate. The law is being used to stifle dissent. It is unfortunate that the government would be so sensitive as to turn on its own citizens when it is presented with an opportunity to reflect on matters and take into consideration criticism. The IT Act has not evolved with the evolution of the internet and is unable to tackle the real issues—such as trolling, cyber-bullying, financial fraud, and so on. The problem also lies with the fact that half of our elected representatives are a generation or two apart from the majority of the population and are unable to keep up.
Also, whenever any discussion is initiated about IT laws, it is invariably marred by the real threat and prospect of increased restrictions and almost a clampdown on free speech. There are enough laws to deal with regulating the internet and protecting persons but the implementation is lackadaisical and negligible. The police, in most cases, are unaware of the laws and unhelpful, leading to confusion and inaction. Digital rights are an extension of the rights we have in “the real world” and these rights are extremely precious because these are the most convenient for a majority of people to exercise.
What is the balance between hate speech and free speech? What are some of the important rights citizens have in the digital space that they ought to know about?
There is a fine line between hate speech and free speech, and the most important thing for citizens to exercise is self regulation—more often than not, it is easier to say things on the internet than in “real life”. But the internet is an extension of the real world. People need to regulate themselves and hold themselves to the same level of care so that the government does not impose more sanctions and restrictions. Many a time dissent gets clubbed as hate speech in order to suppress it. Criticism of a person or the policies of a government is not hate speech, they are simply criticism and fall within free speech. Hate speech is something that causes violence and is hurtful to the sentiments of people or groups of people on the basis of race, sex, culture, ethnicity, and so on.
What are your plans for the future? Do you see yourself taking on more public interest work moving forward?
I have already filed a petition challenging Section 69 of the IT Act, which is pending before the Supreme Court.