Updated: September 26, 2019 4:36:37 am
The Supreme Court, responding to a plea by Facebook, has expressed serious concern about the electronic Wild West that internet technology has opened up, and directed the government to file an affidavit within three weeks outlining a strategy to get social media platforms to share information with law enforcement without compromising the privacy of citizens.
The court had asked why citizens must suffer being trolled and maligned with the impunity conferred by anonymity, and without hope of easy legal remedy. It is a serious question, since clarity concerning guidelines would remove the arbitrariness with which action has been sought and draconian curbs applied.
But in a nation that has become pathetically eager to both give and take offence, it is a difficult question concerning the countervailing claims of different rights, and it is particularly vexed by the depressing reality that none of the stakeholders involved have kept their hands clean.
At the risk of seeming contrarian, may we ask why the government, which will now draft the affidavit, permits the rampant misuse and abuse of the law against citizens who speak out online?
Even after the offensive Section 66A of the Information Technology Act was struck down as unconstitutional in 2015, the harassment of citizens involved in opinionating, advocacy or discussion has continued, without the government requiring application of mind from the police. Some governments have stooped to using the instrument directly against their own people.
Caution is now required, since the imperative of public order and safety is often used to justify innovations that are revealed to be intrusive or coercive. The court may wish to consult its own ruling in Shreya Singhal vs Union of India, delivered by Justices J Chelameswar and Rohinton F Nariman:
“It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions.” In the judges’ view, Section 66A suffered from the deficit of “vagueness”, encouraging arbitrariness. The guidelines which the government is required to produce may be as arbitrary in practice, because perceptions of right and wrong are socially determined, rather than legally.
The social media platforms which would follow these guidelines have not consistently been ideal guardians of the balance between privacy and accountability. Facebook is still firefighting the Cambridge Analytica scandal and allegations of letting its platform be used to influence the US elections and Brexit. And troll-teeming Twitter is permanently beleaguered by allegations of unresponsiveness to complaints of abuse.
The court, which over the years has expanded the contours of free speech, has entered deep waters here, and may finally see fit to rely on existing laws and processes. If applied prudently and morally, they should suffice the purpose.
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