Social Media Curation Does Not Mean Arbitrary Shutting Down Of Accounts : Sanjay Hegde | Full Text Of Interview

Senior Advocate Sanjay Hegde discusses in this interview with Manu Sebastian, Managing Editor of LiveLaw, issues relating to social media regulation and concerns regarding censorship of free speech, in the backdrop of Twitter choosing to challenge some content blocking orders issued by the Government of India.

The video of the interview can be watched here.

The transcript of the interview is given below :

Sebastian : A very interesting development has taken place this week.  Social media platform Twitter has challenged some blocking orders issued by the Central Government before the Karnataka High Court. In their petition, Twitter has said that some of the orders issued by the Central Government are "arbitrary" "disproportionate" and "are not fulfilling the requirements of the Information Technology Act". More importantly, Twitter has also said that some orders were directed against political content. So this has given rise to a lot of debates regarding social media regulation and also the government agencies trying to control social media and exercising censorship.  We have with us Senior Advocate Sanjay Hegde to discuss various aspects regarding this development.

Welcome sir. In 2019, Twitter had suspended your account and you were a very vocal critic of the government agencies. You had a prominent reach as well with over one lakh followers and you have filed a petition in the Delhi High Court challenging the action of Twitter. And now Twitter has questioned some of the actions of the Central Government. So how do you see this development?

Hegde : Well this is ironical isn't it? At that particular point of time, my account had been brought down by what I believe was coordinated action on the part of certain IT cells who probably gamed Twitter's algorithm to ensure that my account got suspended temporarily then.

When I appealed, the fight basically turned upon what is called my header photograph. The header photograph was a very famous photograph of everybody doing a Nazi Salute while one fellow stood with his arms across his chest.  He was a person called August Landmesser and that's a separate story. That photograph is a photograph of defiance against Nazism and against collective group think. However Twitter's algorithms or Twitter's internal processes were told it was a pro- Nazi photograph and therefore the account should come down. I obviously thought that if an algorithm gets it wrong, that is why a human appeal is provided and a human appeal will get it right. But Twitter persisted and has shut down the account. That leads me to believe that it was not only gamed. Twitter operating in India had its own kind of little favors that it traded in with the Government of the day. Many people complained that their followers were cut down or were not verified or reach was restricted. You remember, even Rahul Gandhi complained that his Twitter account was being sort of shadow banned. So, well Twitter India in those days seemed to be playing in footsie with the Government, if i may use an Americanism, at that point of time.  

When I went to court, I raised a few fundamental questions, because I believe that these are questions which will affect the future of free speech at large - both in India and elsewhere. After all, when we exercise free speech on a platform and if the platform were to say, look I will suddenly shut you down because I don't like what you're speaking and I can do anything because I'm a private entity, is that right? If free speech, which is a public good, a public function, should it be held to the private wishes of private corporation? So if you lock out somebody from Google, Facebook, Instagram or Twitter, then a person's access to the public square is denied.

As the public square and the digital public square belong to all users, under the garb of curating, you cannot arbitrarily shut down people. This was the rough outline of what we presented to the Delhi High Court. Curiously, the Government of India came around and said, "no no no we are not necessary parties here, we have nothing to do with this suspension, this is between Mr. Hegde and Twitter and we have nothing to say". So, they actually tried to shut down the petition. But thankfully, the Delhi High Court continued with the petition, but it could not substantially be heard because of the intervening pandemic. Now substantial hearings have begun and the Government of India took a u-turn around and said no no no twitter can't behave like this.  Because, in the meanwhile, quite apart from me, some other accounts also got de-platformed and the Government obviously has had a rethink. So it says now that significant social media intermediaries do perform a kind of public function and should be governed by the law of the land including the constitutional values of free speech as available to all citizens in the Indian constitution. Now Twitter, which ironically said that it was not really subject to the Delhi High Court's jurisdiction in my petition, has chosen to rely on the same affidavit(filed by the Centre) in its Bangalore petition. It has gone to the Karnataka High Court and said, look the Government of India says one thing in the Delhi High Court and at the same point of time tells us to do a lot of other things like pulling down content which we don't think is justified.

I do think that twitter needs to take a re-look as to which accounts it bans and for that, it should have a logical reason of imminent threat to not only public order but of inducing violence. It would be there where the platform needs to step in and take off accounts either temporarily or permanently

To that extent, curation is necessary; but otherwise, in the general marketplace of ideas, neither Twitter nor the Government have any locus standi to say that we will permit this and we will not permit that.

Sebastian : Now there are certain developments happening at the leadership level of Twitter, with Elon Musk now trying to gain control over twitter. He is someone who is advocating absolute free speech. He says that social media platform should be like a public square where just people come and express their opinions without fear of any consequences. So do you think that Twitter's later latest action questioning the government' uh censorship or government's regulations, do you think it has got some relationship with the changes in the ownership of Twitter [Update : After the recording of the interview, reports came that Musk has pulled out of the Twitter deal].

Hegde : Well, the Musk takeover hasn't happened as yet, right? We are still unsure as to whether Musk will ultimately take over for the price that he originally offered. And even Mr.Musk is on record in earlier interviews saying that you know while he is a free speech advocate and all that but if he is operating in a foreign country, he will go by the laws of that country. So I don't suppose Twitter in Saudi Arabia will be as open and as absolutionist about free speech as Twitter in the USA.  So this is one of the things that I had said in interviews earlier also when my account got banned that Twitter seems to have varying standards in different countries. In some countries it tends to play along with the Government of the day. At least in India, I am pretty sure that they did because even Rahul Gandhi did complain that his account had been shadow banned and his reach had been curtailed. So I am pretty sure that in the years gone by Twitter has on more than one occasion fallen in line with what the Government or the ruling party of the day seems to have demanded. I don't see any other reason for it to be obstinate in so far as my account is concerned. I mean almost anyone including right-wingers who have seen the facts of the case agreed, oh you can't ban somebody for this. But what is obvious to the many does not seem to be obvious to Twitter management. And I'm not very sure that Twitter's lawyers have communicated the perils of their position in my case at least.

Sebastian : But of late do you see some kind of resistance from Twitter towards certain government actions, because last year also there were certain frictions between Twitter and the Government over compliance with the IT Rules 2021 and it is only after a lot of government threats and government warnings and even Court intervention that Twitter finally made some compliance. And now they have challenged certain blocking orders. So do you see Twitter finally deciding to question the Government and trying to assert its position? Do you see a change in its stance?

Hegde : Well twitter may not have now gone into uncomplaining obedience to all directives. There are some directives that it may have chosen, may have thought prudent to challenge. It may very well also be that Twitter's own organisation back in the larger organisation in the US may have been asking the the local unit as to whether they had crawled when being merely asked to bend. These were Mr. LK Advani's words describing what the press in India did during the emergency. So Twitter may have decided that at least it should not give the impression of having crawled. I do not take Twitter's actions as suddenly having seen the light on the road to Damascus. You must forgive me if I'm skeptical because, at the end of the day, my account still remains blocked and Twitter still in the Delhi High Court objects to my petition.

Sebastian : Another aspect of the issue is that there are calls by several sections for increasing the regulation of social media. Earlier this week one Supreme Court judge Justice JB Pardiwala also called for certain Parliamentary intervention to regulate social media, especially in the context of increasing personal comments and personal attacks against judges. And Twitter is, as you are very well aware a medium where a lot of people are getting a lot of information from court hearings. Live tweeting of court hearings has become a very normal thing. So how do you see the reaction of judiciary? And Justice Pardiwala is not the only judge, before that even other judges also have expressed in public platforms their concerns about social media interference in judicial process. So what are your thoughts?

Hegde : See one thing I must put on record and this is a very good opportunity is that live tweeting by LiveLaw and other such organisations have really been a game changer. I remember long ago when the judgment in Suresh Kaushal was due to come in the Supreme Court and I was sitting in a television studio and I used to follow a few journalists then and one journalist was tweeting "oh no". It was enough to tell me where the judgment was going. But from those days of individual tweets, now you have live tweets which perform a very useful function. Sometimes when we are stuck in more than one court and we need to see what the tenor of arguments were, then the entire series of tweets becomes very relevant. So in a way you are, whether LiveLaw or Bar and Bench or any of the others who live tweet proceedings, they are filling a very useful gap of providing transcripts of the proceedings or reasonably reliable transcripts of the proceedings. Now platforms like yours have plain vanilla reporting. Maybe you are wrong in a tweet or two because the the reporter did not hear the exchange properly. Nut so far nobody has accused you all of malice

But then, there are a whole host of ill-informed tweets, tweets which attribute motives, tweets which are there for purposes other than strictly legal and concerning the legal process. As to how they are to be regulated or should they be regulated or should courts say look our shoulders are broad enough and uninformed criticism on social media doesn't affect us - that is one view that they could take or if there is something particularly egregious, then some mechanism could be developed. But it is very rare that tweets on the justice system lead to violence.

What leads to violence is sometimes tweets with embedded videos or photographs and things like that which are taken out of context which increase the threat perception and can lead to consequences. Now Donald Trump tweeting at the height of the insurrection on on January 6 could possibly have been leading the action in some way or the other. At that point of time, an account like that being brought down is entirely understandable. Being permanently suspended-there can be two views on that. Supposing you have a live terrorist situation and somebody who's sitting in the next house can look at the action and supposing they start live tweeting, that would bring other lives into jeopardy including the law enforcement. So curtailing that account at that point of time, yes certainly, but to perpetually take down an account and perpetually take down an account for no reason whatsoever- that certainly is no.

Also should you yield to the tyranny of Twitter or any other social media platform and say okay whatever you do is right, you own the platform, you curate it the way you want, you moderate it the way you want as long as no violence ensues or something of that kind is one way of saying it. But on the other hand, if you say no no there should be a government order, then the government can can pass any order. Some government officials sitting in some Vigyan Bhavan or some other Bhavan might say no no no no, this thing about about the harvest figures can lead to our farmers getting depressed. Government orders can be absolutely bureaucratic, looking through at the situation through a pigeonhole which doesn't exist. So to give that power entirely in the government's hands is also not a good idea. I should think that when there are emergent situations, as long as that situation continues, temporarily restraining an account or blocking an account might and in some areas alone might make sense. But to permanently knock people off, that is a No.

Sebastian : Now let us talk about other platforms as well briefly. For example, last year Facebook had approached the Supreme Court against the summons issued by the Delhi legislative assembly for an investigation into its roles in the Delhi riots. And the Supreme Court upheld the right of the Delhi Assembly to conduct such an inquiry. The court even made certain observations that the role played by Facebook into Delhi riots has to be enquired. The Court even in that judgment made references to Cambridge Analytica and reports regarding social media platforms and governments being in alliance and trying to manipulate the elections. These issues were also mentioned in the judgement. So how do you uh see that development and aspects like he role of social media in even controlling elections and even triggering riots.

Hegde : The era of unregulated social media I think is coming to an end or the era where social media controls itself is coming to an end either. The Supreme Court of India was perfectly right when it said that an assembly which has been elected can inquire into how social media platforms either talk up or talk down certain political agendas and influence the outcome of elections or even influence the outcome of events.

Now one video from one Facebook account can cause a riot in an entirely different jurisdiction altogether. There was the Palghar case where a few people got lynched. They were people who were wearing saffron clothes. Now there is one set which blows it up saying that sadhus got lynched.  There is the investigation which says that, no these were people from a tribe which which survived by begging and were saffron clothes.  But before people from that tribe came, there was a huge rumor in that area which was spread through social media that there were kidnappers at large.Now if law enforcement says that social media is used as a tool to drive violence then law enforcement should certainly have some power to regulate or bring it down at least as long as that emergent situation is there. You've had the problem in terrorism affected areas like Kashmir as well. You see youngsters being called to arms because some of their contemporaries post photographs or videos of themselves with arms standing in some jungle or the other end and social media is also sometimes in those situations used as almost daring the law enforcement authorities to come in and take down these people. So yes, wherever there is a credible case of an inducement to violence and incitement to violence or something that would likely cause violence, I come back to that original formula that a temporary ban or a temporary takedown of that content and that content alone, I would support. The invasion, the curating or the takedown should be specific: case-specific, time-specific and should not be broad spectrum.

Sebastian : To that extent there should be some enforcement of the law by the government agencies as well, you would say that?

Hegde : Obviously, as Justice Holmes said in that famous statement, freedom of speech is not freedom to shout fire in a crowded theater. So you have to see and that has been the position of law all throughout -if there is something that causes imminent violence or is an incitement to imminent violence or adds to it in any manner, then of course,that speech does not have protection. But here we confuse any kind of curation for the purpose of an immediate danger to violence with some arbitrary content which somebody may or may not take offense to and which may have been posted, forgotten and then four years later made a big deal of.

There is a danger also in allowing too much curation but the need for curation does exist; but under the garb of curation, you can't have total muzzling.

Sebastian : So there should be a certain regulation of social media to prevent violence and also to prevent hate speech especially in a diverse society like India, but at the same time it has to be ensured that the enforcement does not go into the extent of suppressing dissent or enforcing some sort of social media censorship. It is all about drawing a balance. So thank you so much sir thank you for sharing your views on this topic.