Two very critical human rights events have occurred recently. The Supreme Court of India (SC) further warned against any “crackdown” on “freedom of speech”. And United Nations Human Rights Council (UNHRC) Special Rapporteur Irene Khan has submitted her report on “Disinformation and Freedom of Opinion and Expression,” which is to be discussed between June 21 and July 9.
Judges Dhananjay Chandrachud, L Nageswara Rao and S Ravindra Bhat said any “crackdown on social media news or harassment to people seeking / providing help on any platform will result in coercive exercise of jurisdiction by this Court ”. The SC not only instructed the (judicial) clerk to pass this “order before all district magistrates in the country”, but also ordered the central and state governments to inform “all chief secretaries / directors general of police / police commissioners ”. Suo motu’s “coercive” action for contempt of court may also spill over into other types of criminal proceedings. Although attached to the context of Covid-19, the CS reinforces past precedents enshrining the principle that abuse of public power cannot unreasonably or arbitrarily restrict freedom of expression, the press and media platforms.
The UNHRC report specifically speaks of “information disorder” which stems from disinformation that is “politically polarizing, prevents people from meaningfully exercising their human rights and destroys their trust in governments and institutions” . Human rights provide a “powerful and appropriate framework” for “challenging lies and presenting alternative views”. It justifies the utilitarianism of human rights: Because freedom of opinion and expression enables governance and development; furthermore, “civil society, journalists and others are able to challenge lies and present alternative points of view.” Governance that respects human rights is both possible and feasible; it is also desirable, because it protects political power against itself.
Recalling the UNHRC’s condemnation of inherently “disproportionate” and “widespread” Internet shutdowns, the report argues that “efforts at reactive content moderation” are unlikely to make any meaningful difference without “serious consideration of the model. commercial which underlies much of the drivers of disinformation and disinformation ”. Problems of “inconsistent application of corporate conditions of service, inadequate redress mechanisms, and lack of transparency and access to data” recur constantly. In addition, “although the platforms are global companies, they do not appear to apply their policies consistently in all geographies or to uphold human rights in all jurisdictions to the same extent.” Internet shutdowns “do not hinder disinformation but, on the contrary, hinder the establishment of facts and are likely to encourage rumors”, and are clearly contrary to anti-discrimination rights when they “aim to silence people. voices of minorities and deny them access to vital information ”.
The report argues unequivocally that disinformation “endangers the right to freedom of opinion and expression”. It “poses a threat not only to the safety of journalists but also to the media ecosystem in which they operate” and forces “traditional media to divert valuable reporting resources to dispel and demystify lies”. Deploring the lack of legislative and judicial clarity on the two notions of “disinformation” and “disinformation”, she underlines that the intention to harm is decisive for the first. “Disinformation” is “false information that is intentionally disseminated to cause serious social harm”. On the other hand, disinformation consists of “disseminating false information without knowing it”. These terms should not be used interchangeably either.
Acknowledging the crude fact that “extremist or terrorist groups” frequently engage in the dissemination of “false news and false stories as part of their propaganda to radicalize and recruit members”, the report discriminates against any mass state response that adds to “human rights concerns”.
However, the growth of disinformation in recent times cannot be attributed solely to technology or malicious actors, according to the report. Other factors such as digital transformation and competition from online platforms, pressure from the state, lack of strong public information regimes and digital and media education of the general public are also important. Moreover, the merchants of disinformation accentuate the “frustrations and grievances of a growing number of people”, “decades of economic deprivation, market failures, deprivation of political rights and social inequalities”. Disinformation is therefore not “the cause but the consequence of societal crises and the collapse of public confidence in institutions”. Strategies to “fight disinformation” will only be successful if these underlying factors are tackled.
All this allows an elegant and noticeably precise reading. But are states, governments and political parties, already locked in what Shoshana Zuboff calls surveillance capitalism, an integral part of the information civilization? A 2020 Oxford study on “industrialized disinformation” mentions that up to “81 governments” are using “social media to disseminate computer propaganda and disinformation about politics.” Although Facebook and Twitter recently deleted more than 3,17,000 accounts and pages, “cyber gangs” often act as “agents” of political parties and a tool of geopolitical influence. Some “authoritarian countries like Russia, China and Iran have taken advantage of disinformation about coronaviruses to amplify anti-democratic narratives designed to undermine trust in health officials and government administrators.” Cyber troops remain available for “pro-government or pro-party propaganda”, to attack “the opposition”, or to organize “smear campaigns”, “to suppress participation by trolling or harassment”, and to fabricate “stories that lead to division and polarize citizens”. Online disinformation also leads to offline practices of violent social excursion on genuinely existing individuals and communities such as ethnic, gender, migrant and sexual minorities. Offline experiences of the social dangers of cyber warfare should not be ignored either.
How do you decide on a sustainable mix of regulatory and criminal regimes? How can they give in to the new criminological approach emphasizing the three Ds: decriminalization, decriminalization and deinstitutionalization?
Responsive content moderation efforts are simply insufficient without a “serious examination of the business model that underlies much of the drivers of disinformation and disinformation.” Without a doubt, the platforms are global companies, but do they “apply their policies consistently” or “defend human rights in all jurisdictions to the same extent”? Will future human rights routes in the digital age repeat the mistakes of the past? The report offers water to the mill for in-depth reflection and conscientious action.
The writer is professor of law at the University of Warwick and former vice-chancellor of the universities of South Gujarat and Delhi
