In September 2017, Twitter refused to suspend President Trump’s account despite his seemingly threatening tweets regarding North Korean Dictator, on grounds of the former’s tweets being ‘newsworthy’ and of ‘public interest’.[i] However, in 2019, Twitter India suspended Senior Advocate Sanjay Hegde’s account twice.[ii] Twitter had blocked Hegde’s account on grounds of ‘depicting hateful imagery’, when the latter had posted a picture of August Landmesser, who had refused to salute at a Nazi rally.[iii] Upon public uproar favouring restoration of Hegde’s account, Twitter had obliged to it. However, the next day when Hegde posted a poem called ‘Hang Him’, which dealt with the hanging of two peasant revolutionaries in India, Twitter blocked his account again. Following his refusal to take down the ‘so-called objectionable post’, Hegde’s account was suspended.[iv] These two instances show the arbitrary power given to take down accounts for any reason as the intermediary deems fit.

In a landmark judgment pronounced on September 19^th 2019, the Kerala High Court decided that right to access the internet is part of Right to Privacy, under Article 21 of the constitution and Right to Education, under Article 21A[v]. In the recent Anuradha Bhasin Vs Union of India case, the Supreme Court observed that freedom to practice and carry on one’s profession over the internet enjoys constitutional protection under Articles 19(1)(a) and 19(1)(g).[vi] However, it is undecided whether a violation of the right to access the internet is a violation to the right to life, even though the United Nations General Assembly has declared that human right of freedom of speech and expression extended to the internet also.[vii]

There are three arguments in this regard which needs to be addressed. First, do intermediaries perform public/state function, for them to be liable under Article 19 of the Constitution? Second, can immunity be given to internet intermediaries for their actions, without any state intervention when a citizen’s right to life, speech and right to a fair trial are involved? Third, does the suspension of accounts amount to an even greater violation of the fundamental right to speech and principles of natural justice, than mere content moderation? Fourth, can a citizen resort to a complaint (write petition) against the government, which acts as a Principal to the agent intermediaries, in case of any violation against their rights? Fifth, can right to access the internet be a part of the right to life, under Article 21?

This article will address the second, third, fourth and fifth issues in detail. However, to simply answer the first question, social media/intermediaries play an important role in today’s lives and can directly or indirectly affect the human rights of individuals. States also seek information for their functioning from these intermediaries i.e., Rule 3(7) of IT (intermediaries guidelines) Amendment Rules, 2018 and governments assist them when needed (for example- tax exemption). Section 79(2)(c) read with Section 87 (2) (zg) of the IT Act, 2000 provides instances where the central government can issue guidelines to intermediaries as to when to remove offensive content and when the latter will not be liable. However, these rules do not deal with overcensorship nor about arbitrary suspension of accounts.

Rule 3(9) says that intermediaries should proactively involve automated tools to remove unlawful content. There is confusion regarding what this ‘unlawful content’ refers to. Is it Article 19(2)? Also, giving intermediaries complete power to take down any material as and when they seem unlawful, is arbitrary. These machines may not be able to detect satirical jokes and political innuendos, which I believe is the instance in Hegde’s case too.

Rule 3(4) which was amended by the Shreya Singhal case, referred that, any grossly violative material can be brought down only by a court order or a government notification.[viii] This is not the case in the suspension of accounts, which depends upon the Terms and Conditions of intermediaries. For example, since content cannot be taken down without an order or notification, there are high chances that those intermediaries may remove or suspend the accounts, which is an even gross violation of Article 19. Appeals against suspension is to be brought to intermediaries itself, which is arbitrary.

It is evident from Rule 3(7) and section 79(2)(c) read with Section 87 (2) (zg) that the government can issue instructions, give subsidies, tax exemptions etc. Though the government is not delegating its duties to intermediaries, it is in the position of an ‘informed influencer’ and hence should be made liable for the acts of the latter which are warranted and known. A Government is a protector of fundamental rights of citizens. A government which especially monitors, allows and seeks information from these intermediaries, becomes Principal and is vicariously liable for the acts of intermediaries. Rule 3(4) should be amended to include taking down/suspension of accounts only on court order or government notification, to avoid gross violations of freedom of speech and expression. Considering the judgments of Supreme Court and Kerala High Court, it is evident that government is a flag bearer and protector of fundamental rights and thus, when there is such a violation, the citizens should have a resort to file a writ petition against the government, which in turn acts as an ‘informed influencer’ to the intermediaries, which are essentially its subsidiaries.

It was also observed by the Supreme Court, way back in 1972 that the protection under Article 19(1)(a) would be rendered meaningless, if it is allowed to be violated by private entities.[ix]

When a citizen, who is also a user of social media, does not get a free trial, his human rights are grossly affected, the government stands as a custodian to revive the rights. Article 19(2) of International Covenant on Civil and Political Rights (to which India is a party), provides right to speech through print and media, including the freedom to receive, seek and impart information.

In Hegde’s case, his account was taken down for re-tweeting the poem (sharing an existing poem), which means, the original party is someone else, upon whom there has been no action (Just like in Shreya Singhal case where a girl who had ‘liked’ a disparaging post had been arrested too) With absolutely no sense of accountability, weak End User License Agreements and arbitrary takedown of accounts and over censorship, intermediaries need to be brought under the purview of Article 226 for judicial review, since the citizens’ rights guaranteed by the constitution, cannot be taken away by an entity or a government in exchange of access to social media or internet.

CONCLUSION

All social media accounts which facilitate the exchange of ideas and actions should be considered for review when there is a violation of any fundamental rights. The End-User License agreements, as well as community guidelines, should in consonance with the rights and duties of the country they are operating in. This means the community guidelines and EULA should vary from countries like South Sudan to India. The government, as an ‘informed influencer’ of the intermediaries, especially when it involves itself in the business of these social media organisations, should be made liable for any violation of fundamental rights. It is time the government respects its constitutional, international, moral and ethical obligation and thus interprets Right to Internet under Article 21 of Right to Life and Personal Liberty.

[i]Ted Johnson, Twitter defends its refusal to suspend Trump’s account, (Jan. 8, 2018), https://variety.com/2018/politics/news/twitter-donald-trump-account-1202654950/.

[ii]Akshita Saxena, Sr. Advocate Sanjay Hegde Serves Legal notice to Twitter for restoration of account; seeks intervention of centre, (Nov. 7, 2019), Live Law, https://www.livelaw.in/news-updates/sr-adv-sanjay-hegde-serves-legal-notice-on-twitter-for-restoration-of-account-149579.

[iii]Id. at 2.

[iv]Karan Tripathi, Sanjay Hegde Vs Twitter: Delhi H.C Issues Notice on Plea against account suspension, (Jan. 6, 2020) Live law, https://www.livelaw.in/news-updates/sanjay-hegde-v-twitter-delhi-hc-issues-notice-on-plea-against-account-suspension-151318.

[v]Faheema Shirin RK Vs State of Kerala & ors, MANU/KE/3799/2019 (2019); Right to Access internet is part of Right to Privacy and Right to Education: Kerala H.C, (Sept. 19, 2019), Live Law, https://www.livelaw.in/top-stories/right-to-access-internet-is-part-of-right-to-privacy-and-right-to-education-kerala-hc-148240.

[vi]MANU/SC/0022/2020 (2020).

[vii]The promotion, protection and enjoyment of human rights on the internet, Human Rights Council, Agenda item 3, 32^nd Session, UN General Assembly, (June. 27, 2016) https://www.article19.org/data/files/Internet_Statement_Adopted.pdf.

[viii]Shreya Singhal Vs Union of India, AIR 2015 SC 1523 (2015).

[ix]Bennett Coleman & Co. Vs Union of India MANU/SC/0038/1972 (1972).

ABOUT THE AUTHOR

Anusha G Rao

Anusha is a final year law student, Christ University, Bengaluru. An avid reader of espionage novels, her interest is leaning towards policy research and academic writing on socio-legal and contemporary legal issues.