Yes, Rahul, We Can Have A JPC. Not To Probe Facebook, But To Define ‘Hate Speech’ And Relook At Article 19

Rahul Gandhi wants a Joint Parliamentary Committee (JPC) to investigate Facebook’s political biases in India. This demand followed a Wall Street Journal story which suggested the Facebook officials may have been too considerate about posts done by some users associated with Bharatiya Janata Party (BJP), apparently in order to curry favour with the government.

The Gandhi scion is being too clever by half in demanding a JPC on Facebook’s actions (or inaction), rather than one on freedom of speech and expression (FoE). This freedom is guaranteed under Article 19, and sets the limits too. You don’t need a JPC to check on Facebook’s alleged failure to moderate content in India when the issue is much broader.

Let’s be clear on some issues first.

One, Facebook and WhatsApp are platforms, not content generators themselves. One can maintain that platforms are not responsible for the content generated by users, but since the global consensus is moving towards making social media platforms responsible for what they distribute as user-generated content, we can presume that Facebook needs to comply with this demand.

Two, as Samir Saran of the Observer Research Foundation wrote recently in his blog, social media platforms cannot be a law unto themselves. Their content guidelines or censorship should be in tune with the laws of each country, and in India this law is defined by Article 19 of the Constitution. This also implies that if some kinds of free speech are allowed, Facebook and Twitter cannot censor them in India based on their own internal 'hate speech' censorship norms.

Three, this cannot be just about Facebook. It has to include all social media and old media platforms, since the core issue relates to FoE and where we should set the new limits.

It is worth noting that last year Parliament summoned Twitter chief executive officer (CEO) Jack Dorsey to explain the micro-blogging site’s content censorship policies, but he declined to come and sent a lower-level flunky to attend.

This, when Twitter was being accused of anti-Hindu or anti-BJP biases, or both.

Twitter’s CEO lent credence to this suspicion by posing with a placard that read: “Smash Brahminical Patriarchy.” Sure, we can smash patriarchy, but is it restricted only to Hinduism? Are Christianity and Islam not patriarchal too, with their own priestly power structures?

What applies to Facebook ought to apply equally to Twitter, Instagram, and, in fact, all kinds of media, not to speak of political, social and religious institutions, since this is ultimately about Article 19 and the limits to free speech.

After the WSJ-generated controversy hit the headlines, Facebook’s oversight board has promised to investigate political bias cases, but any JPC should actually audit the political biases of the Facebook oversight board and the content moderation policies of all social media platforms, too.

Article 19 of the Indian Constitution sets “reasonable restrictions” on the exercise of the right to FoE, and these limits relate to protecting “the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Barring “incitement to offence”, almost all the other clauses are vague and omnibus restrictions under which all kinds of FoE can be extinguished. The limit set by the term “public order” effectively gives rioters claiming “hurt sentiments” the right to media censorship.

This is what happened recently in Bengaluru after a Muslim mob turned violent and attacked police personnel and properties over a “derogatory” Facebook post by Congress MLA’s nephew. In short, if you are willing to riot and be violent, the law will immediately clamp down on FoE.

There is good reason to suspect not a pro-BJP bias, but an anti-BJP, anti-Hindu bias, for cadres of anti-Hindu groups like the Dravida Kazhagam in Tamil Nadu, and various communist parties in India, essentially term all critical comments on Islam as Islamophobia.

DK cadres can smash idols and slap pictures of our sacred gods with chappals in public view, but a Prashant Bhushan can get away by claiming that Shri Krishna was an “eve-teaser” (he later deleted the tweet), and Audrey Truschke can call Shri Rama an “MCP”.

A JPC, if set up, should be empowered to summon the CEOs and key policy-makers from all platforms, media houses, and religious groups in order to decide where the new limits to free speech can be set, and these limits cannot be defined only in terms of protecting minority sensitivities.

The JPC should also seek to define “hate speech”, for currently anything is labelled as “hate speech” depending on one’s political biases. Twitter recently banned one widely-followed user, Anand Ranganathan, for merely quoting from the Quran on some controversial issues.

If needed, a limited form of anti-blasphemy law can be enacted, but this cannot be restricted only to protecting religions that believe in blasphemy – Christianity and Islam. Just because Hinduism, Jainism and Buddhism have never had anti-blasphemy laws, it cannot mean they can be subjected to derogatory comments that would amount to hate speech against other religions.

Yes, we should have a JPC, not on Facebook’s alleged political biases, but on redefining the limits to free speech. Which means re-examining Article 19 and its limits once more.