Cyberspace and social media, which should be the equivalent of the public square where people meet and exchange views, are instead becoming the more prohibited zones for freedom of expression.
FOR some time now, free expression on the Net and freedom of the press have both been up for revalorisation. That they are, and the manner in which they are, may not augur well for democracy in both its deliberative and institutionalised aspects. The regulatory urge seems to tilt over into setting limits to un-freedom rather than to move towards evolving a code of reasonable restraints on the freedoms guaranteed in the Fundamental Rights chapter of the Constitution.
In fact, the caveat of reasonable restraint is, of late, evoked far too often to be of comfort to the clause of freedom itself that it seeks to qualify. It is as if the norm of freedom of expression the Constitution envisages is no longer as desirable or viable now as it was in less troubled times.
In what seems a residual colony mindset, the news media profession in India was avidly tracking the Leveson inquiry into the working of the British press, following disclosures of the intrusive unethical practices of News International of the Murdoch stable, as if its outcome has inescapable implications for us. The report and its recommendation are being seized by the pro-external-regulation camp to buttress its case, although Lord Justice Leveson himself combined his heavy-handed diagnosis of an errant press with a light touch cure that stopped short of statutory regulation. Paradoxically, it would seem, at least from the public pronouncements, that both in the United Kingdom and in India the state is more wary of a regime of control of the press than sections of the fourth estate or civil society. Prime Minister David Cameron had almost pre-empted the Leveson report by offering to implement it only if it was not bonkers.
Press Council of India Chairman Markandey Katjus tirade against what he sees as an irresponsible media and his harsh prescription of stopping government advertisements to, and suspension of the licence of, such media is in stark contrast to the sanguine commitment of Prime Minister Manmohan Singh on National Press Day in November to complete independence of the media from external control. Indeed Justice Katju had earlier dismissed self-regulation by the press as an oxymoron. Interestingly, Union Telecommunications Minister Kapil Sibal, in the run-up to the World Conference on International Telecommunications (WCIT) convened by the International Telecommunication Union (ITU) in Dubai this month, has called all talk of Internet governance an oxymoron. These may well be only public posturing, as against real intent, by the state and the stakeholders in the media respectively; or they may point to a deeper cronyism marking the relationship between the state and the monopolistic corporate media. In any case, it seems to upend the notion that the state and the media are mutually adversarial. Media under state protection is, surely, as odd and irreconcilable as media under state control. Protection of the rule of law is all that the media must seek and merit, not state patronage.
THREAT TO NETIZENSThe track record of the agency of the state is, of course, another matter. Nudged, ham-handed police action against an online cartoon by a professor on a maverick politician like Mamata Banerjee, or a tweet by a small entrepreneur on a parvenu politician like Karti Chidambaram, or a Facebook posting and endorsement respectively by two young women on Mumbai being brought to a halt on the death of Bal Thackeray that lumpen Shiv Sainiks could not lump, are indicative of the growingly intolerant and anti-social approach to free speech on digital social media. It is a farcical situation where much the same or more can be said and written in the formal print or electronic news media with impunity because it ostensibly has the pedigree and stamp of professional journalism.
Cyberspace and social media, which should be the equivalent of the public square where people meet and exchange views, are instead becoming the more prohibited zones for freedom of expression. The by now infamous clause 66A of the Information Technology (IT) Act, would be a joke if it did not have such dire consequences for the common man, who can all too easily and unwittingly fall foul of it. Omnibus in its scope and arbitrary in its definition and applicability, the clause makes the digital mediascape a minefield that the citizen must tread warily on. Even as the Supreme Court examines, on a public interest litigation (PIL) filed by an aspiring law student, Shreya Singhal, whether the clause is ultra vires of the Constitution, and irrespective of its decision, there is little doubt that keeping it on the statute book poses a summary threat to any netizen.
Surveillance of trolling is impracticable enough given the globalised and complicated architecture of the Net, which does not lend itself to the cultural or political demands of individual nation states; and can prove particularly impossible during surges of rambunctious cyberactivism. That, one would imagine, may be a bugbear for the totalitarian state but would enhance the cause of a universalised democracy as a fitting counterpart of a globalised economy. From the anti-WTO Seattle protests of 1999, through numerous cyber agitations, down to the domino effect of the Arab Spring or colour revolutions in countries emerging from the former Soviet Union or the Occupy Wall Street movement in the United States and Europe, not to mention the myriad economic, ecological, social and cultural struggles working as local pressure points, digital communication technologies both engender and are constitutive of a pulsating popular dynamic that is supra national and universalising in its thrust. Sooner or later, the nation state was bound to take exception to this alternative virtual realm of freewheeling expression cocking a snook at the established political order and social hierarchy.
Cyberspace, then, is no longer seen as the virtual expression of the Habermasian public sphere, where people can congregate to express their opinion forthrightly irrespective of caste, creed or classin other words with the assurance and equality of anonymity of identity. It is construed, instead, as a potential hotbed of disaffection or anarchism that needs constant patrolling, and where identities of the participants or players must be disclosed.
Habermas also alerted us to the transition from the liberal public sphere, a legacy of the Enlightenment and the American and French Revolutions, to one that is driven by the media market run by giant corporations where public opinion is no longer the product of rational debate and discussion but manufactured by publicity stunts and the brainwashing of advertising so that publicity loses it critical function in favour of a staged display; even arguments are transmuted into symbols to which again one cannot respond by arguing but only by identifying with them. The space that should have been autonomous, de-hierarchised, universal, inclusive, subject to only the normal rule of law and not subordinated to special legal dispensations is, thus, caught in the double bind of hawk-eyed surveillance by the state and the grasping ways of the market.
Draconian provisions like Clause 66A of the IT Act regress to the jurisprudence of early 18th century England when even truth was no defence against libelin fact, the greater the truth, the greater the libeland it was considered seditious libel if a citizen spoke up, or mustered opinion, against the state. As Chief Justice of England, John Holt, put it in 1704: If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government that the people should have a good opinion of it.
Goodwill, fraternisation and amity among people, or between the people and the state, as legal imperative or command performance is, in this day and age, just that much more absurd and naive. And yet the government has been hyperactive in its effort to tame the Net. Between January and June 2011, for instance, Google reports that Indian authorities sought removal of as many as 358 items from the Net of which it estimates that 255 were for government criticism, 39 because they were ostensibly defamatory and eight for hate speech. The government has also borne down on hundreds of Facebook and Twitter accounts and at one time, a few months back, looked like actively consorting with the one parliamentary democracy in Central Asia, Kyrgyzstan, to lobby for an agency to monitor the Net. Last October, the Indian delegate, after a rather long and gratuitous prelude that seemed more like a protestation of the governments commitment to a totally free and plural Internet regime, initiated a proposal in the 66th session of the United Nations General Assembly to set up a Committee for Internet Related Policies (CIRP) to bring it under the oversight of a 50-nation body. The move earned the ire of multiple stakeholders at home who were not consulted, and the government too seems to have subsequently quietly distanced itself from this effort.
THE REAL AGENDA IN DUBAIThe real, if unstated, agenda emerging behind the 193-nation Dubai conference seems a trial of strength between the ITU and ICANN (Internet Corporation for Assigned Names and Numbers) for greater say in matters related to the future of the Net. As part of the process of Americanisation that the liberalisation and globalisation of the 1990s really meant, the functions of a multilateral institution such as the ITU, which traditionally allocated radio spectrum and satellite orbits and oversaw the information and telecommunications order, had been suborned by a private company under the purview of the U.S. Department of Commerce like ICANN, much like the United Nations Educational, Scientific and Cultural Organisation (UNESCO) had been rendered redundant by the WTO. The ITU has been showing some signs of wresting the initiative back at Dubai, but may well be forced on the back foot by the dissembling rhetoric of freedom of expression the U.S.-led lobby and proponents of ICANN are resorting to. Already media reports tend to project the ITU as indulgent to the pro-regulation position of countries like China and Russia, and ITU Secretary-General Hamadoun Toures concern that the kind of lax regulation that brought about the crises in the financial and banking sectors should not be allowed to recur in telecommunications will find ready ominous readings.
The case for free speech on the Net is not, ipso facto, one for direct democracy or populism. There can, of course, be too much of a good thing and there are different views on whether unmediated expression adds up to anything. There are those like Eugene Volokh who see intrinsic value in the cheap speech the new communication technology promotes making it easier for all ideas, whether backed by rich or poor, to participate in the marketplace. Even if many individuals still cannot afford to counter speak effectively there will be many more organisations able to speak out on all sides of an issue.
Others like Cass Sustein argue, for example, that the Internet tends to make users choose information which reinforces their predisposed views by filtering out opposing points of view and, in the process, perpetuate their own corners of prejudice in cyberspace. There is then the question of whether, as Alexander Meiklejohn posed it even in the mid-20th century, everyone shall speak or everything worth saying shall be said. Or, just celebrate being there, as a Hansard Society report on blogging underscores: To blog is to declare your presence; to disclose to the world that you exist and what its like to be you; to affirm that your thoughts are at least as worth hearing as anyone elses; to emerge from the spectating audience as a player and maker of meanings. It is such a potpourri of ideas and types that vivifies the Net and the interactive social spaces eked out by the digital technologies of communication. To seek to regulate the traffic there may end up in the creation of one-way streets of information flow.
