Some comments on The Hindu Op-Ed published on 15/02/2021 written by Gautham Bhatia about Twitter and Free Speech Rights in India.
The stand-off between Twitter and the Government of India (GOI) on the blocking of accounts under Section 69A has resulted in a much needed conversation about free speech online in India. In this article about the problems with the IT Act and our jurisprudence, Gautham Bhatia elucidates some of the problems with our current legal regime. I am in broad agreement with him, but I believe that better results will be produced by legislation than by judicial law-making. I have nascent ideas of social media regulation which is best elaborated at some other time, as they are not fully formed yet. However, some of Bhatia’s observations in his Op-Ed do not sit right with me, and the following is a few comments on the same. My comments start rather abruptly, and I advice you read the article (linked above) before returning here.
“ On February 10, Twitter also published a blog post where it remarkably — and in my view correctly — argued that the government’s own actions in directing it to withhold access…….violated Indian law, and the constitutional guarantee of the freedom of speech.”
The problem is that Twitter can arbitrate what is and what is not guaranteed under the Indian constitution. If they think that they are right, they should approach the courts than unilaterally determining the extent of free speech rights. Twitter is no way in a position to play the arbiter of free speech rights in India — its role is self-admittedly that of a platform to facilitate legal, civil conversations.
The bigger problem and the inherent contradiction in their (twitter’s stance) would be made clear if we are to fill in the dots:
On February 10, Twitter also published a blog post where it remarkably — and in my view correctly — argued that the government’s own actions in directing it to withhold access to the accounts of ‘journalists, activists, and politicians’, violated Indian law, and the constitutional guarantee of the freedom of speech.
Twitter specifically decided not to block the accounts of ‘journalists, activists and politicians’. All three categories are vague enough to fit in a privileged few: not everyone. The problem is, in India, free speech is free speech for everyone. Appukuttan has as much free rights as Arundhati Roy. Therefore that twitter determining that some class of persons cannot be blocked is wrong. What right that privileged the accounts that were taken down also is applicable to these persons. For more clarity , let us look at the Twitter Blog, which says:
“Separately, today, we have withheld a portion of the accounts identified in the blocking orders under our Country Withheld Content policy within India only. These accounts continue to be available outside of India. Because we do not believe that the actions we have been directed to take are consistent with Indian law, and, in keeping with our principles of defending protected speech and freedom of expression, we have not taken any action on accounts that consist of news media entities, journalists, activists, and politicians. To do so, we believe, would violate their fundamental right to free expression under Indian law.”
It is quite clear that twitter is contradicting itself. It is willing to take down anonymous or unknown persons and willing to sacrifice their free speech over the privileged. Thus, free speech is not equal for Twitter either. This determination does not exist in Indian Law, as I said earlier. Therefore the argument that Twitter wishes to protect free speech in India is specious. Not to mention if we were to add the context of what happened in the United States and in Uganda, it is quite clear that Twitter wishes to be a law onto itself. This is the primary problem that India as a sovereign entity faces: and something like this deserves our attention and nuance as well. Twitter cannot and should not be in a position to determine free speech: the Indian people, the Indian Legislature and the Indian Judicial system are. This is necessary to recognise in any conversation or debate about the issue.