New Recommendations to Regulate Online Hate Speech Could Pose More Problems Than Solutions

The article was published by Wire on October 14, 2017

It was reported last week that an expert committee headed by T.K. Viswanathan, former secretary general of Lok Sabha, recommended that the Indian Penal Code (IPC), the Code of Criminal Procedure and the Information Technology Act be amended to include stringent penal provisions regarding online hate speech. While this report has not been made public, the Indian Express reported that the committee’s recommendations include, among other things, insertion and expansion of penal provisions in the IPC on ‘incitement to hatred’ (Section 153C) and ‘causing fear, alarm or provocation of violence’ (Section 505A) to include online speech, and creation of the offices of state cyber crime coordinator and district cyber crime cell.

Online hate speech has been among the more complex issues with regard to the regulation of technology. The complexity of restricting hate speech has to do with a number of factors, including the ubiquity of strong opinions in online speech, often offensive to certain groups, the interplay between individual and group rights, and the tensions between the values of dignity, liberty and equality. Siddharth Narrain has pointed out in his thesis on hate speech law that the use of law to curb offensive or hurtful speech has been done by religious groups, caste based groups, occupation based groups with strong caste associations, language groups and gender based groups. The range of actions arising from such uses of the law include the banning of books, criminal proceedings for political satire, or even ‘liking’ political posts on social media.

The relationship between speech acts and acts of violence is a complicated issue with little consensus on appropriate ways to regulate it. Scholars such as Jonathan Maynard have advocated greater reliance on non-legal responses such as counter speech, as the use of criminal law to tackle speech often has the effect of chilling forms of dissent. The formulation and application of legal tests in criminal law with respect to hate speech is also hard as hate speech has much to do with the content of speech as it has to do with the context, including factors such as power structures. Speech by a figure in a position of power also has a greater likelihood to result in a call for violence.

Before looking at the specific recommendations made by the T.K. Viswanathan committee, it would be worthwhile to also look at the background of this committee. The committee notes with approval the Law Commission of India’s 267th report on the issue of hate speech. The Law Commission, in turn, was acting at the behest of observations made by the Supreme Court in Pravasi Bhalai Sangathan v. Union of India in 2014. In this case, the Supreme Court exhibited judicial restraint and refused to frame guidelines prohibiting political hate speech, and had instead requested the Law Commission to look into it. However, the court noted with approval international case law on the issues, particularly the observations in the Canadian case Saskatchewan v. Whatcott. Relying on Whatcott, the Supreme Court provides a definition of hate speech that includes the following statements:

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members..[and] lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”

Thus, it is evident that the Supreme Court itself clearly states that hate speech must be viewed through the lens of the right to equality, and relates to speech not merely offensive or hurtful to specific individuals, but also inciting discrimination or violence on the basis of inclusion of individuals within certain groups. It is important to note that it is the consequence of speech that is the determinative factor in interpreting hate speech, more so than even perhaps the content of the speech. This is also broadly reflected in the Law Commission’s report that identifies the status of the author of the speech, the status of victims of the speech, the potential impact of the speech and whether it amounts to incitement as key identifying criteria of hate speech.

However, in the commission’s recommendations, these principles are not fairly represented in the suggested new Sections 153C and 505A, as per a draft released by the Internet Freedom Foundation. Section 505A, for instance, refers to “highly disparaging, indecent, abusive, inflammatory, false or grossly offensive information” and “derogatory information.” These are extremely broad terms, not having any guiding jurisprudence within Indian or international law, which may be helpful in restrictively interpreting them. It is important to note the similarities between this provision and the repealed Section 66A of the Information Technology Act, which sought to criminalise speech that was “grossly offensive,” having “menacing character,” or “causing annoyance..danger..insult..enmity, hatred or ill will.”

These terms in the recommended Section 505A also run foul of the observations of Justice Nariman in Shreya Singhal v. Union of India, where he took exception to the nature of the terms in Section 66A by stating that, “Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.” While these terms are somewhat tempered in this provision with a requirement to show intent to “cause fear of injury or alarm,” they remain exceedingly broad and contrary to the requirement that restrictions on speech must be couched in the narrowest possible terms.

The T.K. Viswanathan committee, in addition, seeks to bring, within the scope of the prospective Sections 153C and 505A, electronic speech. As per its recommendations, ‘means of communication’ would include “any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource.” This could have the impact of bringing in a provision that has some similar effects as that of the now defunct Section 66A of the Information Technology Act. The lack of regard for the Supreme Court’s observations on hate speech, the need to look at it through the lens of equality and the over-broadness of restrictions on speech are likely to be dangerous for free speech if the recommendations of this committee are acted upon.