Who defines national security and public order? What is the threshold for criticism of the government? Can hate speech be episodic or is it always systemic? What is the threshold of 'hate speech'? Panellists ponder as misgivings multiply.
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THE definition and threshold of hate speech is rapidly changing in India. On one hand, a certain notion of 'badtameezi' (misbehaviour) is used to lower the threshold of hate speech vis-a-vis what can be said against the government, people in power, and powerful people; and on the other hand, certain groups and individuals are provided impunity to make aggressive and hateful statements against minorities, said Supreme Court advocate Shahrukh Alam during the second edition of FoE Con on Saturday co-organised by the non-governmental organisation Internet Freedom Foundation and media watchdog NewsLaundry.
Alam was voicing her views during the panel discussion titled 'Ctrl+Alt+Delete: How the law assists in taking down digital news stories' on what is considered fair use in the context of legal news-based content.
She added: "…[M]ore and more, law is mirroring the hierarchy in our social culture… Most prosecutions, in my opinion, happen when you challenge established social and political power or ideas that they support."
The session was moderated by NewsLaundry founder and Chief Executive Officer Abhinandan Sekhri and had Sakshi Joshi, an independent YouTube journalist, and Akash Banerjee, founder and host of political and social satire platform The DeshBhakt, as the other panellists.
Sekhri shared his experience of starting Gustakhi Maaf, a political satire show on NDTV, saying that when they started writing The Great Indian Tamasha and Gustakhi Maaf, they did not want to start with the 2003 Iraq invasion, which was the big international story of the time. Instead, they wanted to start with "puppets of Sonia Gandhi and Atal Bihari Vajpayee. But they did not make it on air till a year later."
Sekhri said they started with Sadam Hussain, Tony Blair, George Bush and Osama Bin Laden. For three months, all they had to do was write a gag three times a week on these four characters. Then they sought permission to introduce Vajpayee and Gandhi into their satire.
The management said, "Let us wait. Let us see how people react to these." We kept pushing the line of who we could make fun of, he added
Banerjee added, "…[T]he irony is, you reserved the best character till the very end because Gustakhi Maaf is literally known for Vajpayee's pauses… The irony with satire is that the best content hardly makes it on air. Today, you know, you will not have that show if you want it to be on air."
Banerjee remarked that in India, one has to think many times before trying to do satire, "The whole concept of satire or political mockery does not exist in this country… If you try to do a late-night American-styled satire show, you will be in jail!"
"What we are limited to is … cheap-level satire … write too much and you will face the State!"
Banerjee added, "[Journalist Mohammed] Zubair got into legal trouble not because of what he had posted or the immediacy of what he had done, but for the satirical content of his tweet referencing a thirty year-old movie.
He continued, "People ask me what my business plan is, it is basically staying out of jail as much as possible!"
Sekhri asked him if he consults a lawyer before performing satire.
Banerjee replied, "[Having] a television background helps… But what cases like Zubair's clearly show is that today there is no clear line… In today's game, you do not know what is going to go against you, which tweet is going to be used against you."
Alam added in jest that even lawyers do not know what is going on. "Law is a satire in itself!" she added.
Joshi shared her experience as a standalone YouTube journalist and how she approaches her content on Twitter.
She said, "This government has a big problem with people speaking on Twitter … this is the platform that helped them create the misinformation environment."
She added, "When it comes to Twitter, many of us … think twice before tweeting our videos. We also try to scrutinise whether the video we have created should be tweeted… Most people are refraining from tweeting their work that they are uploading on YouTube and Facebook."
She further averred, "These channels that you call Godi media; they do not think twice before airing anything because they know they will get away with it."
"After the Zubair incident, we are not even afraid anymore … we know that we might also get in trouble anytime soon. So, we are trying to find out the problems with staying in jail." Only by this attitude can we continue to uphold journalism as we once knew it, she added.
Sekhri also shared his experience of how certain news channels get away with wrongdoings because they are State sympathisers. The misinformation they circulate stays on the internet and creates a wrong narrative among people.
Sekhri continued, "…[T]he State also operates through news channels that are very sympathetic to them. We recently had an event in Kerala ['Cutting South: Global Media Festival', sponsored by the Kerala Union of Working] with The News Minute… A certain bunch of loonies said that because the programme was supported by the High Commission of Canada, our platform was a Khalistani platform! They said we were getting money from Khalistani groups in Canada through the Canadian government which is giving it to us to secede South from the rest of India!… There was an article [alleging this] which is yet to be taken down."
Certain news platforms had alleged that this event was organised by a group of 'Urban Naxals' and 'Khalistanis' who were promoting separatism in South India.
"There are a few stories that I do not think I will be able to do anywhere if I am working in any news channel or print media … Right now [on Youtube], I can even go unedited," Joshi said.
To this, Banerjee replied that they may still not be able to show unedited work.
According to him, "The Government says, for national security, I can pull down your story. No questions asked, no clarification given… Using public order as an example or spreading communal disharmony, a case can be filed… And soon, you will have the new Digital India Bill coming out…
"Now on the takedown… I did an episode on the protests happening in Iran. The video was demonetised as age-restricted. There were no violent shots. But the topic was sensitive, so they age-restricted it. I did an episode on floods in Pakistan, they age-restricted it. What was the problem there… You cannot really show unedited material… Social media platforms are not built for news. They are built for entertainment… Facebook has a clear line, any political content can be demonetised."
Further, Joshi pointed out that almost all independent media journalists have closed their messenger boxes because of the abuses hurled at them.
She said: "…[W]hat we get is not leads on news but abuse. There is a criterion under the IT Rules [The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021] for people to register complaints against content-makers. You are supposed to reply to that complaint within 24 hours. But what do I do with this? [Reading abusive messages sent to her]… Am I supposed to treat them as complaints and respond, or block the senders?"
The 2021 Intermediary Guidelines require the users of social media intermediaries to acknowledge a complaint by the user or a victim against the violation of these Rules within 24 hours as per Rule 3(2)(i). This threshold is higher for significant social media intermediaries like Twitter and other social media platforms like Facebook. The Rules obligate these significant social media intermediaries to identify the first originator of the information.
Banerjee and Sekri also spoke about how the government is trying to regulate subscription-based online content.
Banerjee said, "I got inspired by the subscription model and started Patreon [Patreon is a membership platform that provides business tools for content creators to run a subscription service.] Now, news is coming in from Jammu and Kashmir that the government has a problem with the subscription model. It is anti-national and it could be used to spread anti-national sentiments, according to the authorities."
Alam jokingly interjected, "It is a terror-funding model!"
The discussion then shifted towards the fundamental right to freedom of speech and expression and how this right is abused by using vague terminology.
Sekhri then asked Alam about the vague use of terminology in legal provisions used to restrict the freedom of speech by taking the example of Section 66A of the Information Technology Act, 2000.
Section 66A used words like 'online annoyance, criminal intimidation, insult, obstruction, or injury'. A larger number of people were prosecuted as these words could mean anything and everything.
Section 66A was declared unconstitutional by the Supreme Court in Shreya Singhal versus Union of India (2015).
Alam replied, "National security. It could mean anything. Public order too."
Alam was referring to Article 19(2) which uses the words ' public order' to restrict freedom of speech and expression.
She added: "A lot of times, the authorities do not actually talk about what is the real threat to national security… All these people who have been detained under the [Unlawful Activities (Prevention) Act, 1967]… when [National Investigation Agency] asks for extra time, they are given under [the pretext of] national security. We have people detained with no charge for up to 180 days… It is canon that cannot be touched."
She was referring to cases where the ground of national security is invoked. Because of this, she said that no one knows what and how the investigation takes place because it cannot be disclosed.
Further, Alam also referred to the recent hate speech matter in the Supreme Court. She tried to make a comparison between free speech and hate speech thresholds.
Alam said, "On one hand, we have this low threshold of national security or public order… On the other hand, how do we deal with the problem of hate speech? What kind of threshold are we looking at?
"Hate speech is not episodic… What you are talking about is systematic, cumulative hate speech. What is the threshold for that..? There is a problem with scale and narrative."
While referring to the court proceedings during a recent hate speech matter, Alam said that the State requested the court to play certain videos which they claimed were hate speeches.
She said, "These were episodic speeches. While they are offensive and militant, they are not hate speeches because they are not systemic. They will not cause material harm or a democratic deficit… Hate speech is a majoritarian problem that will be directed towards minorities."