Blocking Free Speech

[GN]

privvcy February 25, 2023, 10:28am #1

In a well reasoned article published in The Wire, Supreme Court Advocate Prasanna S examined the legal background to what was reportedly an order from the Government of India to the company managing the social media platform Twitter to take down (block public access to) tweets posted (by individuals or corporate accounts) regarding the publication of a two-part documentary by the BBC.

It is relevant to point out that access to the documentary itself was also blocked, but this was by restricting access to anyone in India (location data can be used to block internet traffic: the routers managing such traffic to India can be configured to block access to a particular URL; in this case, each URL for the pair of web pages carrying the two videos and their associated editorial descriptions). This is an action that can be directed by the Ministry of Electronics and Information Technology (MEITy), and is a separate topic from this discussion.

Prasanna points out:

Twitter’s promise to its users on how they respond to government’s blocking orders reads thus:

“In our continuing effort to make our services available to people everywhere, if we receive a valid and properly scoped request from an authorised entity, it may be necessary to withhold access to certain content in a particular country from time to time.”

Implicit in this promise is that Twitter will make a studied determination on whether a request was (a) valid, (b) properly scoped and (c) whether such a request originated from an authorised entity. Another legitimate expectation that flows from this promise is that Twitter would take independent counsel on the legal (and indeed constitutional) validity of a request from the government before acting on it.

Unfortunately, the company in fact did, reportedly, carry out such actions, against tweets that provided or publicised ‘workarounds’ or alternative links from where the documentary could be viewed.
Responding to the article, retd (Allahabad High Court) Justice Amar Saran comments (quoted in full with permission):

I think Prasanna S has written a good & valid piece. Simply, a “properly scoped order” means, does it comply with the legal provisions. There can be no autocratic carte blanche by a majoritarian government setting up directions as per their ipse dixit, on what can be said ( including in Parliament), written or filmed, so long as our Constitution guarantees freedom of speech & expression under Article 19(1)(a).

If Modi or Adani are not to be regarded as synonymous with India, even a critical documentary (though I agree with N. Ram who found the documentaries fair & objective in mentioning the rival view points and the SC judgement) can’t be restricted only for violating our sovereignty, territorial integrity, friendly relations with other states etc.

Even with regard to disturbing “public order”- which might be considered the closest exceptional restrictive condition here, the cited case Rangarajan v Jagjeevan Ram related to ban of a film which spoke out against caste reservations, & stood for reservations only on economic grounds for promoting national integrity – in the view of the film producer. Even the potential for disturbing ‘public order’ because the film was critical of the reservation policy was rejected because there was no direct nexus or immediate incitement like a spark to a powder keg to disturb public order.

Also, the hypersensitivity of a volatile section of the population (which has been described as the ‘heckler’s veto’ elsewhere) causing the disturbance of public needs to be ignored, but only the standards & reactions of the ‘reasonable’ man atop the Clapham omnibus must be considered for justifying ban of a publication.

For any lawful publication, freedom of expression is to be the norm, and its best test is in the public marketplace of ideas. In this matter my feeling is that by attempting to block the documentary, apart from inducing thoughtful persons to try and lay their hands on the two parts from anywhere – just as the attacks on “Pathaan” promoted its viewership, this governmental banning action might rather be regarded as a signal, or provocation, to its blind bhakt crowd to take to the streets, and disturb public order.

[Although, that attempt backfired, and before the international community, it only validated the charge of totalitarianism against our rulers.]

I think the government need to impose the ban, which has happily been challenged in the SC, is really because BBC enjoys fair credibility, and with contrarian viewpoints having limited public expression, because of total control over godi media, and almost full dominance via its trolls & IT cells over social media. So the other viewpoint, possibly representing the truth, needed to be completely shut out, as usual.

Hence the punitive income tax raids were meant to send out the clear message, internationally, and via them, to the domestic purveyors of news & opinion, “agar tumne chapa to hamne mara chapa!”