The pro-democracy protests of Hong Kong and Belarus where citizens congregated using mobile apps are evidence of the political power of social media. This significance of the internet ecosystem amplified further during the second wave of the Covid-19 pandemic when social media played a major role in tackling the demand and supply gaps by amplifying requests for oxygen cylinders, life-saving drugs and other essential resources. However, while on one hand, the internet has provided new platforms for civic mobilisation and dissemination of information, on the other hand emerging online challenges have led to calls for digital surveillance and online censorship. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) that envisages a new regime for governing the internet ecosystem is an apt example in this regard.
While appropriate regulation is critical for preserving rule of law in the digital realm, such actions need to be cautiously scrutinised owing to their ability to impinge upon the fundamental right to free speech, privacy and anonymity of the users especially women and other marginalised groups.
The feasibility of internet shutdowns
The last few years have witnessed Governments around the world increasingly resorting to internet shutdowns in times of crisis due to concerns of public safety or to curb the spread of misinformation. A shutdown is an intentional disruption of the internet-based services rendering it inaccessible for a specific location or population. Countries including Sudan, Benin, Malawi, India and Egypt amongst many others have witnessed internet shutdowns at alarming rates since 2015. The reasons are manifold but usually range from legitimate national security concerns to those around elections and pro-democracy protests where shutdowns are used as a tool for curbing dissent.
Such sweeping measures are like a collective punishment and not a strategic response. When the internet is off, the ability of people to freely express themselves gets limited[1], journalists struggle to upload photos and videos[2], students are cut off from their classes, accessing health care services gets difficult[3] and the economy suffers[4]. In all, such actions lead to skewing the development of a population, widening the socioeconomic disparity between them and other States of the same country, and other countries.
App bans: Can national security be ensured at the cost of fundamental rights?
Restricting one’s access to digital applications has been a novel way of online censorship. Various apps, including social media are used to widen one’s platform of expression. It allows one to have better access to information and ensure creation of a more inclusive space considering that the internet transcends borders. Social media apps were even used by people during the initial days of the pandemic last year to develop businesses and to increase awareness of discrimination or injustices faced by the vulnerable and minority communities. Further, they also served as a powerful tool during the 2020 United States elections,[5] where people used platforms to disseminate relevant information for voters.
Despite the advantages, Governments commonly justify the actions around banning internet applications by citing concerns for national security and public safety. For instance, with over 140 apps banned in India last year, the reasons for the same included dangers posed to the sovereignty, integrity and defence of India. However, experts across regimes have noted that such actions are most often counterproductive where they result in severely restricting people’s freedom of expression and right to information.
They also signal towards the deep-rooted regulatory incapabilities in a country’s cybersecurity infrastructure that forces it to rely upon such emergency blocking orders and bear the ensuing economic and geopolitical implications.
Online censorship: How much can a democracy withstand?
Censorship, for decades together, has been a tool used to curtail free speech and suppress dissent. In India, Section 69-A of the Information Technology Act, 2000 authorises the Central Government to block public access of any information online. Similar to all other fundamental rights, free speech is also subject to certain reasonable restrictions like national security amongst others and the mandate under Section 69 is in pursuance of the same. However, the non-disclosure of the orders for public scrutiny leading to disabling the citizens and the higher judiciary to meaningfully exercise their right to constitutional remedies and the power of judicial review respectively is a concern.
Likewise, the IT Rules, 2021 were promulgated to tackle the legitimate cybersecurity threats grappling the internet and ensure better protection of user interest. However, certain provisions like the stringent timelines for takedown and information assistance, personal liability of compliance officers, originator traceability, proactive monitoring, extended time period for data retention and enhanced scope of “actual knowledge” requiring intermediaries to take down content on the behest of users have led to concerns regarding the successful implementation of the new regime owing to their legal and technical infeasibility. Though enacted with the purpose of creating a more inclusive ecosystem, the overarching nature of these mandates pose concerns like a chilling effect on free speech, unreasonable restrictions on privacy and disproportionate censorship.
The road ahead: Laying the foundation for a free and inclusive internet
The future of free expressions, privacy and democratic governance rests on the decisions we make today. The importance of preserving right to free speech and access to information for creating an empowering online space has been observed by constitutional courts across the world.
Similar observations have also been made by several internationally acclaimed bodies including the UN Human Rights Council[6] and the ITU-UNESCO Commission[7].
A study conducted by The Dialogue on the American and Indian platform regulation regime shows that privacy and safety can and should be achieved together.[8] In fact overarching restrictions on civil rights lead to a deleterious impact on user safety and national security as well. Accordingly, with the past experiences and evidence-based research proving that measures like rampant internet shutdowns, app bans and online censorship are not sustainable, it is crucial to adopt a multi-stakeholders approach to tackle the perennial law and order challenges on the internet.
To this end, Governments should ensure that social media companies continue to benefit from the safe harbour protections unless they have an “actual knowledge” regarding the illegality of any content. Overarching regulations around content takedown, proactive monitoring, originator traceability and personal liability of platform’s employees should be resisted and implementable standard operating procedures should be developed with the help of legal and technical experts to ensure the feasibility of the norms governing the digital space.
Likewise, platforms must prioritise the user’s right to free speech and expression by ensuring that their terms of service and community guidelines align with their obligations under Pillar II of the UN Guiding Principles on Business and Human Rights[9]. Aligning the content moderation policies with the Manila Principles on Intermediary Liability[10] and the Santa Clara Principles on Transparency and Accountability in Content Moderation[11] which are the global standards on progressive platform regulation is also crucial.
Moreover, given that protection of rights is impossible without appropriate awareness regarding their existence and importance, initiatives around propagating digital literacy and awareness must also be prioritised. Civil society organisations should work towards educating users about appropriate behaviour in digital space and the ways to protect oneself from online harms through training around ways to detect misinformation or to flag and report inappropriate content on the prominent platforms.
Only with the users, Government, platforms, and civil society working together towards finding meaningful solutions can a free and inclusive internet that is crucial for living a life in this digital age be ensured for all.
† Research Associate (Platform Regulation) at The Dialogue.
[1] Freedom of Expression on the Internet, Organisation for Security and Cooperation in Europe, 15-12-2011 <https://www.osce.org/fom/80723>.
[2] Lungelo Ndhlovu, Facing Internet Restrictions, Journalists Turn to VPNs, 26-3-2015 <https://ijnet.org/en/story/facing-internet-restrictions-journalists-turn-vpns>.
[3] Meenakshi Ganguly, “Kashmir Shutdown Raises Healthcare Concerns”, Human Rights Watch, 30-8-2019 <https://www.hrw.org/news/2019/08/30/kashmir-shutdown-raises-healthcare-concerns>.
[4] “The Economic Costs of Government Internet Interruptions”, 7-5-2019 <https://www.riskmanagementmonitor.com/the-economic-costs-of-internet-interruptions/>.
[5] Rosamund Hutt, ”What are your Digital Rights?”, World Economic Forum, 13-11-2015 <https://www.weforum.org/agenda/2015/11/what-are-your-digital-rights-explainer/>.
[6] Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom, A/ HRC/ 17/27, 16-5-2011 <https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>.
[7] Cannataci Joseph, Privacy, Free Expression and Transparency: Redefining Their New Boundaries in the Digital Age, UNESCO Series on Internet Freedom, <https://en.unesco.org/unesco-series-on-internet-freedom>.
[8] Shreya and Tiwari, Analysing the American Safe Harbour Regime: Takeaways for India, The Dialogue, Dec 2020 <https://thedialogue.co/wp-content/uploads/2020/12/Analysing-the-American-Safe-Harbour-Regime_Takeaways-for-India_The-Dialogue.pdf>.
[9] Pillar II, “UN Guiding Principles on Business and Human Rights”, OHCHR <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.
[10] Manila Principles on Intermediary Liability, <https://www.manilaprinciples.org/>.
[11] “The Santa Clara Principles: On Transparency and Accountability in Content Moderation” <https://santaclaraprinciples.org>.