Social Media and the Censorship Conundrum- A Case Comment
Author: Netra Vasudevan
Designation: Student, Christ(Deemed to be University), Bengaluru
Email ID: firstname.lastname@example.org
The Covid-19 pandemic has transformed habitation systems and lifestyle habits of people around the globe. The increase in the amount of time people have been forced to spend at home, has translated into a corresponding rise in the engagement rates on social media platforms, as people have become more glued to their devices than ever. With almost the entire lives of public figures pretty much on show online, thanks to the watchful eyes of the public and prying paparazzi, the question of how much privacy they could possibly demand from the law comes to the fore. This question was analyzed in the recent Delhi High Court case of Sasikala Pushpa v Facebook India and Ors. Here, the aggrieved was a politician representing the All India Dravida Munnetra Kazhagam (AIDMK) party, who was shocked to discover that a few photographs and videos of her had been anonymously taken without her consent and circulated via social media. She instituted a suit in this regard against Facebook, Google, Youtube, the Union of India and the Department of Telecommunications for a permanent injunction barring the publication, broadcasting or dissemination of those photographs, which she claimed were defamatory as they showcased her in a less-than-flattering light. The plaintiff’s claim was based on the premise that even though the photographs in no way represented her engaging in a private act or displayed anything that would theoretically be classified as obscene, it still ought to be censored as it would irreparably prejudice her reputation if it were to be used for sensational purposes.
The two principal issues that arose in this case were:
i) Could the defendants be held liable for the alleged violation of the plaintiff’s fundamental rights?
ii) Were the plaintiff’s demands that the photographs constituted an irreversible breach of her right to live with dignity, her reputation and her fundamental right to life, actually valid and actionable?
Decision of the Court
The court proceeded to absolve the defendants of their liability under the Information Technology Act 2000 as their role, according to Section 79, was only that of an intermediary. It was impracticable for Facebook, Google or Youtube to scan all the information that was being hosted on their portals, and their liability to expeditiously take down online content would only arise upon receiving a valid order by a court that an unlawful activity had taken place. The Court then shifted its focus towards the second issue, and the impugned photographs were brought before it. The pictures looked like they were from a newspaper or a click shot for a news channel, and showed the plaintiff in the private garden of a house with a man, who appeared to be a member of her rival party, the Dravida Munnetra Kazhagam. Nothing in any of the photographs displayed the two in any compromising or scandalous position. They were taken in a completely casual setting with the two of them just smiling and enjoying each other’s company. The counsel for the plaintiff, however, contended that the political rivalry between the two, coupled with the fact that she was married to another man, would render the pictures a huge threat to her reputation.
On an analysis of a number of precedents that dealt with similar issues, the Court based its judgement on the following grounds:
1. The very essence of democracy was founded on the right of the citizens to participate in the governance of a country. It was essential, as a citizen casting his/her vote in an election, to be well-informed about the candidates that represented them, and an uninformed citizenry would in the end, reduce the entire system to a mere farce.
2. One of the consequences that come with being a public figure include the dissection and analysis of their involvement in public issues as well as their private lives- the ambit of what constitutes a clear violation of a person’s privacy shall vary from an average citizen, to a person holding an important public office. This however, does not warrant the harassment of such persons, but does not shield them completely from the public gaze.
3. Considering the fact that the plaintiff is a politician, the citizens were entitled to be aware of her actions owing to her position as the representative of the people. The citizens had to right to know not only the public activities of politicians but also the identity of those who she was in contact with behind closed doors, particularly a man who was affiliated with a rival party.
Therefore, the Court, whilst striking a balance between the plaintiff’s right to privacy and the public’s right to be informed about who she hobnobs with away from the public eye, held that the plaintiff would not be entitled to the injunction claimed.
This judgement is reflective of how even though Indian censorship laws have tried to be as liberal as possible, the approach adopted has not been entirely unproblematic. This is mainly because of the outdated nature of the legislative framework, that although made sense a couple of years ago, have been unable to keep up with the rapid pace of technological developments that keep presenting a host of new problems before the government. A number of provisions in the Information Technology Act 2000 have been subjected to immense controversy, the most noteworthy being the now-repealed Section 66A, which restricted the posting or circulation of offensive content. The supposedly well-defined system laid down by Section 69A, which allows the government to take down websites and restrict public access to content that may incite hatred, has no accountability mechanisms in place to ensure that such a power is not exercised arbitrarily. This issue became even more evident in the wake of the recent controversy that accused Facebook of not being impartial in the implementation of its hate-speech policy, and giving the members of the ruling party an unfair advantage over the Opposition.
These are just a few alternate examples that showcase how the constitutional machinery that governs the secure use of social media is still a grey area. The truth is, the information technology laws in our country are still a work in progress. There remains much to be desired when it comes to reconciling the conflict between the fundamental right to free speech and expression and the responsible use of social media without violating the individual rights of citizens.