With the advent of technology social media has become an inevitable part of our lives and has turned the world into a global village. Initially social media was purely a source of entertainment but now it’s a source of income to many. Those days have disappeared when social media was only available to celebrities and politicians but now is used by each and every one bringing a counter balance in the society. Social media has been beneficial for various reasons such as, providing employment opportunities, empowerment of women, to voice out ones opinion on any social issue, conducting E-business, source of information, important medium for communication to people living across the globe and the list goes on.
According to the data released by the Union Minister Ravi Shankar Prasad, while announcing the new social media rules revealed that, WhatsApp has over 53 crore users in India, followed by YouTube, which has over 44.8 crore subscribers. Facebook has roughly 41 crores of users, Instagram has 21 crores, and Twitter has 1.5 crores of users. From the data it can be seen that large number of Indians use WhatsApp.
The number of social media users has increased drastically over the last few years which brought about a radical change as to how we come across daily news. Social media being a free interface has enabled people to voice out their opinions about various topics around the world. Taking advantage of this democratic set up there are many users who share hate messages mostly targeting religious and ethnic minorities, Trans community, women, Jews, Muslims and the list is endless.
Freedom of speech is granted to all citizens under Art 19(2) of the Indian Constitution. India being a country with diverse culture causes religious and caste disparities amongst the people. Social media has become a medium where the vulnerable communities are targeted, sexist’s opinion are passed, and illegal discrimination is made which further becomes a hate crime making the society disordered. This research studies about the hate speech on social media and the relevant legal provisions available to protect the victims. Furthermore, the research also aims at providing a few recommendation to curtail the same.
HATE SPEECH AND SOCIAL MEDIA
"Social media" can be defined as "a collection of online communication channels devoted to community-based input, engagement, content sharing, and collaboration." Instagram, Facebook are one of the most commonly used social media applications in the present day. Social media as specified earlier has become a medium for sharing opinions on worldly affairs which is often misused by targeting the vulnerable sector through “Hate speech”.
The term “Hate Speech” has not been defined explicitly in any Indian legal provision. Hate generally means an utmost negativity towards a particular community in the society. The term “hate speech” will be understood as covering all forms of expression that “spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”
Online Hate speech are just hatred comments towards endangered community on the internet, Race, gender, and ethnicity are examples of unchangeable characteristics that can be particularly damaging because they are fixed and cannot be changed. People who fall victim to hate speech are not only psychologically affected, but this harm, in turn, casts a pall on their interpersonal ties. In one instance in the year 2018, the propagation of rumours about child traffickers using the popular messaging network WhatsApp resulted in a rash of lynching in rural areas in India.
Slanderous religious and ethnic statements online, initially targets an individual but leads to become a community violence that takes away the lives of many. In a particular instance, white supremacist attackers in the United States circulated among racist communities online and used social media to publicise their crimes. Prosecutors claimed that the Charleston church gunman, who killed nine black clergy and parishioners in June 2015, used the internet to participate in a "self-learning process" that led him to conclude that white supremacy necessitated violence. Hate speech undermines the very essence of the society and deprives an individual the right to live with dignity.
INTERNATIONAL CONVENTIONS ON HATE SPEECH
The topic of hate speech has taken on more importance in the internet age, because the internet's accessibility allows offensive speeches to reach a bigger audience in a shorter amount of time. Several International bodies have provisions condemning hate speech. The ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression of the Human Rights Council on content regulation on the internet stated that freedom of speech can be restricted on grounds like, hate speech, child pornography, endorsing racial and religious hatred, and persuasion of public genocide. The International Covenant on Civil and Political Rights hasn’t explicitly mentioned about hate speech but the essence of which is covered under Article 19 which provides for freedom of speech and expression. Furthermore, in circumstances of "promotion of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence," Article 20 clearly limits freedom of expression. The inclusion of this provision, which might be described as embodying a certain interpretation of hate speech, has been hotly debated.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which took effect in 1969, has ramifications for how hate speech is defined. Its definition of hate speech is limited to race and ethnicity-related communication which is mention under Article 4. The ICCPR talks about the issue of intent more specifically when compared to the ICERD. Furthermore, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) denounces discrimination against women and "prevent, investigate, prosecute, and punish" incidents of gender-based violence.
The European Union's Charter of Fundamental Rights, states the right to freedom of expression in Article 11 and contains a section that outlaws the abuse of such right. Certain rules and penalties are specified to protect national security and territorial integrity.
HATE SPEECH v FUNDAMENTAL RIGHT
The Indian Constitution guarantees freedom of speech, and responsible speech is at the heart of that freedom. One of the most difficult hassle facing the autonomy and free speech principles is ensuring that this liberty is not exercised to the harm of any individual or marginalised group in society. Freedom of speech and expression is granted under Article 19(1) (a) to all the citizens of India but is subjected to certain restrictions under Article 19(2). The restriction under 19(2) is justified only if the matter causes threatening impact on the sovereignty and integrity of the nation. When communication offends dignity, it causes greater harm than just offending the target. It would jeopardise the "implicit guarantee" that is given in a democratic set up, particularly to minorities and vulnerable groups. When determining whether or not a speech is permissible, the content and context of the communication are critical.
In the case of Delfi v. Estonia the Court stated that, the internet is a crucial tool for disseminating information and viewpoints, but it also serves as a forum for criminal speech. Furthermore, it also stated that the right to freedom of expression cannot be exercised at the expense of the Convention's other rights and ideals.
In Shreya Singhal v. Union of India, the Supreme Court of India distinguished three types of speech: debate, advocacy, and incitement. The Court decided that when a speech crosses the line into incitement, it can only be controlled by the restrictions listed in Article 19(2).
Liberty and equality are complimentary rather than diametrically opposed. The goal of freedom of expression is not to marginalise the weaker members of society, but rather to give them a voice. The goal of equality is not to suffocate liberty, but to strike a balance between it and other rights. As a result, incitement to violence, as well as discrimination, has been identified as a basis for restricting freedom of expression. Therefore in any case of violence resulting from a speech or expression can be made punishable.
Various other legal provision implicitly protect against hate speech. The publication or circulation of any statement, rumour, or report that causes public mischief and hostility, animosity, or ill-will between classes is punishable under Section 505(1) and (2) of the IPC. Imputations and declarations harmful to national integration are punishable under Section 153B of the IPC.
Countries all across the world have begun to recognise the problem of hate speech and fake news and how it impacts society's functioning. In this aspect, Germany and France have some of the strictest policies. In Germany, the NetzDG, or Network Enforcement Act, maintains strict prohibitions against hate speech, including the propagation of pro-Nazi ideology. It establishes rigorous takedown deadlines, but also allows for extensions in the event that further facts are required to assess the accuracy of the material. In Germany, the majority of complaints received were due to hate speech or political extremism, which is similar to India.
In France, on the other hand, digital platforms are required to reveal the name of the author and the amount paid by the author in the case that content is sponsored. In this case, a legal injunction is issued to prevent the spread of such information. These countries are among the most forward-thinking when it comes to content control. This level of efficiency must be achieved while protecting the freedoms of all parties involved, from individuals to social media businesses.
In India, fake news and hate propaganda are mostly about a person's caste, gender, or religion, which are all sensitive subjects for most of us. Furthermore, the regulations addressing these issues are insufficient and are dispersed among numerous acts and rules under the Indian Penal Code, the Information Technology Act, and the Criminal Procedure Code. There is an urgent need to bring one unified law in order to curtail online hate speech and fake news.
Recently, The Indian government has issued new laws and regulations to control social media sites, messaging services, over-the-top (OTT) platforms, and news portals. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 are even made applicable to international digital firms working in India, such as WhatsApp, Instagram, Facebook etc. The Rules for social media platforms such as Twitter, Facebook, and others focus on concerns such as fake news, false user accounts, and monitoring and taking down off illegal content. Social media networks with a larger user base have more compliances to fulfil. The obligation to identify the originator of communications in the event of mischief is a critical feature unique to messaging services. While the actual implementation of this remains to be seen, it appears that even smaller social media platforms may be brought under the purview of tougher laws based solely on user behaviour.
It also worth evaluating whether there are less damaging approaches to mitigate the harm caused by hate speech than prohibiting it. Indian law is currently considering solutions such as prior restraint or punishment for hate speech. The research proposes a few recommendation for the same:
There is a need to give a precise definition to the term “Hate speech” so that the perpetrators can be punished according to a particular penal provision.
All instances of religious freedom of speech violations and inciting to hatred that results in violence should be condemned and avoided.
Incitement to hatred, which can lead to violence, antagonism, and discrimination, should be punished by law. They should be applied in a non-selective, non-arbitrary, and transparent manner, and they should not be used to restrict lawful expression or criticism.
Monitoring the spread of hate speech and mob mobilisation through strategic interventions (particularly in the setting of social media).
The right to free speech and expression has long been recognised as a crucial component of democracy's long-term viability. However, with every right comes responsibility, and it is for this reason that the right to freedom of speech and expression must be limited in order to avoid the negative and regressive effects that it may have. As a result, there is a need to persuade and educate the public on the proper use of freedom of speech and expression so as to make the world a better place to live.
WHAT IS SOCIAL MEDIA, http://whatis.techtarget.com/definition/social-media (last visited Feb. 22, 2013).
Mapping Study on Projects Against Hate Speech Online Institute of Human Rights, BRITISH INSTITUTE OF HUMAN RIGHTS (Apr. 15, 2012), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDIQFjAA&url=http%3A %2F%2Fwww.coe.int%2Ft%2Fdg4%2Fyouth%2FSource%2FTraining%2FTraining_courses%2F2012_Map ping_projects_against_Hate_Speech.pdf&ei=z9cnUbm8I5DrAH75oGoBg&usg=AFQjCNFerL6dnOW wQibhEz8aC_ozXfypdQ&sig2=2rVJALDuOIH92fgRB_75cw&b vm=bv.42768644,d.aW M
NAME: NEHA R
RAMAIAH COLLEGE OF LAW, BANGALORE
3rd YEAR BBA LLB (6th Sem)