GitHub And Twitter's Complicity In The Auctioning Of Indian Women At The 'World's Public Square'

In yet another incident, photos of many prominent Indian Muslim women were uploaded using GitHub by the name 'Bulli Bai', so as to 'auction' them, on the 1^st of January, 2022 in an act of targeted misogyny. While the concerned application was developed on GitHub, it was popularised on Twitter, as the GitHub screenshots posted on Twitter accompanied the Twitter handles of the said women. Even the GitHub webpages contained an embedded link enabling users to share the 'deal' on Twitter, thus facilitating the 'auction'. A similar event occurred in July, 2021 by the name of 'Sulli deals', wherein photos of Muslim women were generated as the 'deal of the day'.

(Un)Safe Space: The Need For Automated Content Filtering Systems

While cautioning against the harms associated with automated content filtering such as over-censorship, experts have discussed the importance of deploying such tools for the removal of illegal content that otherwise would require extensive human labour. From the point of view of established jurisprudence, it is still ambiguous whether writ jurisdiction in India can be applied to private bodies performing public functions, such as Twitter, for the enforcement of fundamental rights enshrined under the Constitution of India.

However, taking a leaf from Prevention of Sexual Harassment (POSH) jurisprudence, cases like Vishaka vs State of Rajasthan and MedhaKotwal vs. Union of India have shown that even though one may not succeed in claiming a fundamental right violation directly against a private body, it can be enforced against the State. Thus, an article 19(1)(a) claim may be enforced horizontally by taking the State to court for the violation of one's freedom of speech and expression.

And no, "Don't use Twitter if you don't feel safe" is not a democratic answer. Indian courts have previously held in relation to WhatsApp and its contested Privacy Policy that – 'If you don't like, don't use it'. While this argument doesn't hold water either way—WhatsApp is a private messaging app, whereas Twitter is a public forum. Creating an unsafe space for women, that too from a particular religion, cuts across lines to breeds a public space that begets hatred. One can hold the Government accountable for a violation for their fundamental rights and indirectly hold the private body responsible for its failure to uphold the citizen's claim, through what is known as 'indirect horizontality'.

It must be noted that India's much touted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were promulgated to empower citizens and protect them from these very violations. These rules do not prohibit the deployment of technology-based measures such as automated content filtering tools to curb hate speech. In fact, they enable and encourage intermediaries such as Twitter and GitHub to rather deploy such tools to 'proactively identify information that depicts any act or simulation in any form'—containing rape or child sexual abuse material (CSAM) whether explicitly or implicitly, or 'any information which is exactly identical in content to information that has previously been removed'.

The 'Bulli Bai' app is a spin-off of 'Sulli Deals'—the app that was earlier removed by GitHub, which was popularised by now-blocked tweets and Twitter accounts. Thus, 'Bulli Bai' is "exactly identical" to the 'Sulli Deals' application, and should have been taken down by automated means, but it wasn't. What's not to say that there cannot be another variant of such targeted vitriolic act that crops up by another name? Wouldn't the damage be done by the time the Government asks Twitter or GitHub to take down the content, or some person has to file a criminal complaint? In fact, a legal notice sent to Twitter in light of the 'Sulli Deals' controversy showed that Twitter did not remove all the derogatory posts, rather it unblocked the accounts that were implicated.

Both GitHub and Twitter are Significant Social Media Intermediaries (SSMIs) under the rules, meaning that these provisions for use of automated tools apply to them. They might not entail penalty for non-observance, since it is not mandatory for these companies to deploy automated content filtering tools in India. However, as a matter of public policy, it is imperative that they do.

Even if these SSMIs do not necessarily use such technological measures to stop hate speech, the Government must be made to amend the rules to make the deployment of such technological tools mandatory to stop this form of hate speech that violates one's right to a dignified public forum.

Liability Of Twitter And Github As 'Publishers': (Un)Safe Harbour

The dilution of the safe harbour is evident in India. It started with the issuance of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. By way of these rules, an intermediary that transmits content (i.e. electronic records) is said to be transmitting 'digital media'. Publishers have been classified as 'publishers of news and current affairs content' such as Aljazeera and 'publishers of online curated content' like Netflix. Further, intermediaries that make available online and receive, store, transmit, process or edit 'news and current affairs content' (NCA) are now publishers.

Even the Report of the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 seems to shows the inclination of the Committee to classify social media intermediaries as publishers where they do not qualify for safe harbour under section 79 of the Information Technology Act, 2000. This leads to the dilution of the safe harbour protection, as intermediaries are not liable for third-party content, whereas publishers are liable for user-generated content.

Entities that were traditionally considered as intermediaries like news aggregators eg. Google News, Inshorts and news portals eg. Google Search or simply 'Google' have now been codified as publishers. Although Google is essentially a web portal, the expanse of NCA is so wide that search results in the nature of NCA, except those containing 'online curated content', would in fact qualify as NCA. Thus, even though it is the vilest of content, it would constitute news which has been defined as 'newly received or noteworthy content made available over the internet' under the rules.

Relying on jurisprudence on Defamation, it has been held by the Bombay High Court that a third-party may be responsible illegal, defamatory content either if they 'select such illegal content' or if they have 'personal knowledge about the content'. Thus, it is proposed that GitHub and Twitter in addition to the authors/originators of the hateful posts must be jointly held liable for the damage done to the women who were 'auctioned'.

Even though Twitter has a 'Private information and media policy' as a gimmick, which prohibits the circulation of media of private individuals without the permission of the person(s) depicted, the illegal content was not taken down suo motu. Twitter must be made to implement individual-centric policies like the 'Safetymode'.

The Blue Bird refused to sing when caged, heralding a dark, dark road ahead. This public humiliation of women on the world's public square signals the end of a democratic brethren, and the beginning of a bloodhounding hunt of every inch of humanity... if there's any left.

The author is an advocate in Delhi and views are personal.