Centre for Internet & Society

For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a toilet, and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Sunil Abraham's guest column was published in the Tribune on January 20, 2013.

Many in traditional media, especially television, look at social media with a mixture of envy and trepidation. They have been at the receiving end of various unsavoury characters online and consequently support regulation of social media. A common question asked by television anchors is "shouldn't they be subject to the same regulation as us?" This is because they employ the 'principle of equivalence', according to which speech that is illegal on broadcast media should also be illegal on social media and vice versa. According to this principle, criticising a bandh on national TV or in a newspaper op-ed or on social media should not result in jail time and, conversely, publishing obscene content, in either new or old media, should render you a guest of the state.

Given that Section 66-A of the Information Technology Act, 2000, places more draconian and arguably unconstitutional limits on free speech when compared to the regulation of traditional and broadcast media, those in favour of civil liberties may be tempted to agree with the 'principle of equivalence' since that will mean a great improvement from status quo. However, we must remember that this compromise goes too far since potential for harm through social media is usually very limited when compared to traditional media, especially when it comes to hate speech, defamation and infringement of privacy. A Facebook update or 'like' or a tweet from an ordinary citizen usually passes completely unnoticed. On rare occasion, an expression on social media originating from an ordinary citizen goes viral and then the potential for harm increases dramatically. But since this is the fringe case we cannot design policy based on it. On the other hand, public persons (those occupying public office and those in public life), including television journalists, usually have tens and hundreds of thousands friends and followers on these social networks and, therefore, can more consistently cause harm through their speech online. For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a public or residential toilet and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Ideally speech regulation should address the asymmetries in the global attention economy by constantly examining the potential for harm. This applies to both 'speech about' public persons and also 'speech by' them. Since 'speech about' public persons is necessary for transparent and accountable governance and public discourse, such speech must be regulated less than 'speech about' ordinary citizens. Let us understand this using two examples: One, a bunch of school kids referring to a classmate as an idiot on a social network is bullying, but citizens using the very same term to criticise a minister or television anchor must be permitted. Two, an ordinary citizen should be allowed to photograph or video-record the acts of a film or sports star at a public location and upload it to a social network, but this exception to the right of privacy based on public interest will not imply that the same ordinary citizen can publish photographs or videos of other ordinary citizens. Public scrutiny and criticism is part of the price to be paid for occupying public office or public life. If speech regulation is configured to prevent damage to the fragile egos of public persons, then it would have a chilling effect on many types of speech that are critical in a democracy and an open society.

When it comes to 'speech by' those in public office or in public life - given the greater potential for harm - they should be held more liable for their actions online. For example, an ordinary citizen with less than 100 followers causes very limited harm to the reputation of a particular person through a defamatory tweet. However, if the very same tweet is retweeted by a television anchor with millions of followers, there can be more severe damage to that particular person's reputation.

Many in television also wish to put an end to anonymous and pseudonymous speech online. They would readily agree with Nandan Nilekani's vision of tagging all - visits to the cyber cafe, purchases of broadband connections and SIM cards and, therefore, all activities from social media accounts with the UID number. I have been following coverage of the Aadhaar project for the past three years. Often I see a 'senior official from the UIDAI' make a controversial point. If anonymous speech is critical to protect India's identity project then surely it is an important form of speech. But, unlike the print media, which more regularly uses anonymous sources for their stories, television doesn't see clearly the connection between anonymous speech and free media. This is because many of the trolls that harass them online often hide behind pseudonymous identities. Television forgets that anonymous speech is at the very foundation of our democracy, i.e., the electoral ballot.

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