'There's No Market Place Of Facts' : CJI DY Chandrachud Expresses Concerns About Online Disinformation & Hate Speech

Chief Justice of India DY Chandrachud has expressed concerns about the "unprecedented proliferation of disinformation and hate speech on the internet" which was posing a serious challenge to the traditional ways of understanding free speech in a democracy.

Delivering the 14th Justice VM Tarkunde Memorial Lecture on the topic 'Upholding Civil Liberties in the Digital Age: Privacy, Surveillance and Free Speech', CJI Chandrachud said that disinformation was not protected by traditional free speech theories and constitutional jurisprudence under Article 19 of the Indian Constitution.

"I believe that demonstrably false facts are not protected by traditional free speech theories," he stated.

CJI elaborated that the free speech theory of "market place of ideas" cannot be extended to fake news.  "The marketplace can only exist when there is agreement on the veracity of basic facts. There is no marketplace of facts," he said adding that disinformation can affect democratic discourse. He referred to studies which show that fake news get shared in social media more widely.

"In this way, tolerating the proliferation of fake news erodes the free and open debate that democracy intends to protect. If we cannot agree on the veracity of basic facts, debate stops, partisanship hardens, and social solidarity breaks down...Disinformation therefore has the power of impairing democratic discourse forever, pushing a marketplace of free ideas to the point of collapse under the immense weight of fake stories. A cursory glance at the newspaper every day will bring to the fore instances of communal and vigilante violence fueled by fake rumours and targeted disinformation campaigns".

Traditionally, freedom of speech and expression was deemed to be an essential part of civil rights activism because of the fear that the government would prevent certain kinds of speech from entering the marketplace. However, with the advent of troll armies and organized disinformation campaigns across different social media platforms, the fear is that there is an overwhelming barrage of speech that distorts the truth. 

In this context, he referred to the outrageous fake news and misinformation which flooded the internet during the COVID-19 pandemic.

However, he also expressed apprehensions about the misuse of the laws enacted to tackle online disinformation. When it comes to content moderation of online speech, there is a complex moral dilemma that arises in attempting to balance two key values: (1) the upholding of freedom of expression and (2) the prevention of harm caused by misinformation.

While calling for new theoretical frameworks to locate free speech on the internet, the CJI also said that there is a flip side to adopting privately owned platforms as the medium for dissent, activism, and expression of free speech. 

"With corporations wielding such immense power, there is an immense amount of trust placed on them to act as the arbiters of acceptable and unacceptable speech – a role that was earlier played by the state itself. This can have disastrous effects," he said referring to reports of social media being used to fuel ethnic violence in Myanmar. While Governments are held accountable to the Constitution, social media corporations remain largely unregulated.

In conclusion, he said, "while digital liberties activism, including the protection of privacy and free speech, has gained currency at an unprecedented pace, we are still in an early period of theorizing on it."

Full text of the lecture can be read here.

The video of the lecture can be watched here :