As we go to press, the Kerala Governor, on the advice of the state government has signed an ordinance withdrawing the controversial amendment of the Kerala Police Act by the introduction of a new section, (118-A) which prescribed punishment of five years for online hate speech. The Opposition had raised an outcry that the amendment would put excessive authority in the hands of the police, and that it could potentially curtail the freedom of speech and the media.

This is one amongst many events across the country that indicate that we are now in uncharted policy territory, as far as protecting, curtailing, or regulating the freedom of expression is concerned.

This concerns the Accountability Initiative a great deal because there cannot be any form of accountability if there is no freedom of expression. An entire range of social accountability weapons, ranging from public hearings to social audit, would collapse if freedom of expression was not protected.

Yet, even as one watches the happenings in Kerala and contrasts them with the lack of debate on the same issue over many other states, one wonders whether there is not more than a grain of justification in the government’s original intention of curbing hate speech. Surely, it is justified to bring about curbs and deterrents to prevent people from cyberbullying others on social media? Where can the line be drawn? How dark and broad should that line be?

Before one launches into any policy reforms, it is important to scour the landscape to understand what the current restrictions are on the freedom of expression that are prevalent over the world. Let us take out of the equation totalitarian, non-democratic countries. Let us only include democracies, however strong or weak they may be in the popular impression, into our consideration.

What we see are laws of various intensities, containing a range of restrictions that apply on the freedom of expression and punishments of various intensities prescribed for their transgression. Such laws apply to the following matters that readily come to my mind:

• Defamation,
• Sedition,
• Political criticism,
• Contempt of court,
• Pornography, nudity, dressing considered inappropriate, public expressions of affection,
• Blasphemy, hurting of religious sentiments
• Extolling or denying shameful historical events,
• Derision or questioning the legitimacy of ruling classes including royalty, state symbols, and so on,
• Perjury.

This is not a complete list by a long shot. Yet, a comparison of how countries deal with these matters reveals emphatically that there is no single yardstick of what constitutes an acceptable level of freedom of expression.

Furthermore, while one country might have decriminalised many of these, others may consider them to be cardinal sins, inviting severe punishment. To my mind, there will be no consensus on this matter, even though the debate will continue without end.

Where can the line be drawn? How dark and broad should that line be?

The added dimension to this issue comes from the explosion of social media in the last decade. The range of options of expression and the accessibility of social media to billions of people through cheap internet has led to the hitherto unheard of phenomena affecting the act of expression; an evolution that is too fast with which policy development can keep pace.

Of particular importance is the role and responsibility of platform providers- to what extent are they responsible for reprehensible, even criminal expressions on their platforms?

In India, the settled law so far has been that platform providers are not substantially responsible for the expressions of those who use them and put out content. Section 66 of the IT Act, which made them so, was struck down by the Supreme Court. Yet, legislative committees have recently summoned platform providers such as Facebook and Twitter, to explain how they could allow certain content to be displayed in spite of the obvious hate that they spread.

In the US too, in a contentious and ill-tempered public hearing before legislators, the top honchos of platforms such as Facebook, Google, and Microsoft were hard put to explain and defend their positions. On the side of the legislators too, there were more allegations of favouritism for the other, than any cogent discussion on how to deal with the issue.

There is great urgency in dealing with the issue of where the boundaries of the freedom of expression lies, particularly when it comes to social media, for two reasons.

First, in several research studies and investigative reports, there seems to be ample evidence that social media is making zombies of users with algorithms that tend to drive people more in the direction of their accepted beliefs rather than being exposed to counter beliefs. The volume of fake news, conspiracy theories, pseudoscience, and scaremongering is significantly replacing real, balanced information.

People who get snared in this web of deceit often cannot escape. They believe that what they see is information curated for them by intelligent, objective, real people, whereas, what comes up on their news feed is almost invariably thrown up by bots. These bots feed upon their preferences and history of viewing.

Second, much of this misinformation and hate is not being driven by real people; it is done by bots and other types of artificial intelligence (AI). These learn peoples’ surfing preferences, latch onto them to give each user a view of the world filtered through their software applications.

In an upcoming blog, I will explore certain conceptual nuances. How can one punish AI or big tech putting these out, without punishing those who wrote them up in the first place? And if one were to punish, can they be held culpable of the actions of their creations; did they anticipate what their algorithms would do?

The answers are not easy to find. But we must find them. And still, retain a faith in the freedom of expression.