Taxing Gossip: A Workable Solution?
In the short span of a year, 29 people have lost their precious lives in lynchings by mobs as a result of rumours camouflaged as incontrovertible facts over social media networks like Whatsapp. Much hullabaloo has been created over the growing use and responsibilities of technology platforms in such cases with the public discourse limiting itself to recognizing Whatsapp as the principal offender thereby, conveniently ignoring factors like the prevailing social discord, unequal social capital and power among different groups, and a complete lack of faith in the country’s law and order machinery. Most troubling, however, is the readiness with which public authorities in a democracy have placed the onus of governance on a private corporation with the social network being directed to “immediately contain the spread of [such] messages through the application of appropriate technology”.
At the outset, it is pertinent to note that any efforts by Whatsapp to monitor conversations are limited by end-to-end encryption as a result of which the company cannot access the contents of messages transmitted through its servers. Even if the social media giant is to abandon one of its most successful features, the fact that the Indian public accounts for nearly 200 million of its total users, a number set to increase to 500 million by 2020, makes such policing difficult. This begs the question: In light of the recent tragedies provoked by posts circulated on popular messaging platforms, is the government to be a silent spectator? Is it to only focus its efforts in apprehending culprits after the fact? What are the alternatives available? Should there be increased intermediary liability à la Germany which recently passed a landmark law to hold Internet companies accountable for illegal, racist, slanderous material on their social media platforms, requiring them to remove such content within a specified timeframe, or face fines up to 50 million euro? Or are endeavours such as Facebook’s efforts to bring third party fact checking to India sufficient despite its limited success elsewhere?
In devising another possible solution, the Ugandan Parliament, earlier this year had controversially passed the Excise Duty (Amendment) Bill in the face of strong protests criticizing the move as an attempt to stifle free speech and online expression in the country. The law which came into effect on July 01, 2018 now requires users of ‘Over the Top’ (OTP) platforms such as Facebook, Instagram, Twitter and Whatsapp to pay 200 Ugandan Schillings (about 03.57 INR) on a daily basis to access services. The passage of the law was preceded by multiple warnings from President Yoweri Museveni indicating his intent to levy a tax to curtail the use of networks which were in his opinion employed to simply promote ‘idle gossip’ and ‘spread lies’.
This is not the first time that Museveni’s government has come under attack for its attempts to restrict social media usage in the country. In February 2016, unspecified security threats were used as an excuse to block the access of the general public to social networks such as Facebook and Twitter during the Ugandan presidential election. It’s most recent decision has been ostensibly justified as a maneuver to reduce foreign borrowing and provide a much needed boost to government revenue with some members of the ruling party stating that any amount raised would be used to increase broadband infrastructure.
Human rights activists have however, been up in arms against the new tax with most regarding it as nothing but a blatant attack on free speech. In its statement addressing the issue, Amnesty International called the tax “a clear attempt to undermine the right to freedom of expression” and “silence dissent” in the country. It further opined that “by making people pay for using these platforms, this tax will render these avenues of communication inaccessible for low income earners, robbing many people of their right to freedom of expression, with a chilling effect on human rights.” The Human Rights Network for Journalists in Uganda has further condemned the actions of the government as an affront to the peaceful enjoyment of digital rights by the citizenry. In light of the same, a Ugandan Tech Company has filed a lawsuit against the government accusing it of breaching the principles of net neutrality while urging the Constitutional Court to declare the tax as ‘illegal, null and void’.
The move of the Ugandan government is reminiscent of another East African nation’s attempt to suppress civil liberties in the guise of outlawing the publication of false information. As per the draft Kenyan Computer Misuse and Cybercrimes Act, 2018, offenders found guilty of sharing ‘false’ or ‘fictitious’ information to propagate hate speech would have been liable to pay a fine of up to 05 million shilling (about 3,41,4882 INR) or a sentence of 02 years in jail, or both.
In the author’s humble opinion, despite the fact that one cannot deny the obvious challenges associated with social media usage, the benefits outweigh the costs. The growth in digital information and technology globally has only spurred enterprise and innovation apart from facilitating an easy exchange of ideas. Further, from a purely human rights perspective, any action by a democracy having the effect of censoring or restricting free speech can be considered to be in violation of its obligations under national and international law. For instance, as per the provisions of Article 19(1) of the Indian Constitution, citizens have a fundamental right to freedom of speech and expression enforceable by law. Nevertheless, such a right is subject to reasonable restrictions in the interests of the sovereignty and integrity of the State, 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 offense.
A “reasonable” restriction is one that establishes a relationship of proportionality between the goal that the state wants to achieve and the extent to which it aims to restrict speech. Simply put, the objective behind any legislation having the effect of curtailing the rights of citizens, must be demonstrably justifiable to legitimize any override with the proposed measures being devoid of any arbitrariness, irrationality or manifest unfairness. Further, the means used should be no more than necessary to meet the desired objectives. In case restrictions are proposed on the basis that certain kinds of speech will inevitable result in violence or destruction, there needs to be an immediate proximity enquiry. An imminent causal connection must necessarily be established between the speech and the violence to validate such State action. The philosophy underlying the test of proximity is that as autonomous individuals in a democracy, citizens are entitled to receive and listen to speech, evaluate it on merits and come to a decision regarding the efficacy of its source.
While every government has a legal right to use its fiscal policies in regulating the conduct of citizens, any attempt to intrude an internationally and most importantly, constitutionally guaranteed right in the absence of significant grounds is nothing but political overreach. Efforts to restrict the freedom of speech and expression of citizens merely to control ‘gossip’ or ‘rumour mongering’ are not only difficult to justify but also have long-term social and economic consequences for the country. The right of citizens to express their opinion on matters both civil and political is the bedrock of any democracy. It is difficult to imagine any government subscribing to the ideals of good governance formulating policies which effectively silence free speech and increase the digital divide.
Accordingly, it is extremely unlikely that any regulation of social media usage through the levy of taxes would be effective in India. The decision rendered in the case of Shreya Singhal v. Union of India, wherein the Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India further buttresses the point.
Moving to international law, as per Article 19 of the Universal Declaration of Human Rights, which has since attained the status of customary law, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart ideas through any media and regardless of frontiers.” Such a right has also found place in numerous international treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of all forms of Racial Discrimination, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities to name a few. India, having ratified each of the aforementioned human right instruments without any reservations is thus, legally bound to give effect to the obligations contained therein in good faith.
With social media being a uniquely liberating space and the absence of boundaries making it harder to regulate, the world continues to remain at a crossroads with different nations grappling with fresh problems on a daily basis with no workable solution in sight. What is certain however, is the fact that framing the issue of public lynchings as merely a technological one displays a shallow understanding of the complexities and motivations associated with it in addition to a denial of accountability by the authorities concerned. The public policy responses that have been suggested as yet will act as nothing more than a muzzle on citizens preventing them from exercising their constitutional rights ultimately, resulting in increased pre-censorship in the guise of public safety and security.
Research Assistant, Delhi Judicial Academy
 Blaming Whatsapp for Deaths due to Lynchings has shielded Govt Accountability, available at https://www.firstpost.com/tech/news-analysis/blaming-whatsapp-for-deaths-due-to-lynchings-has-shielded-govt-accountability-4703481.html.
 ibid; Lynching without End, Report of Fact Finding into Religiously Motivated Vigilante Violence in India, available at at http://www.misaal.ngo/wp-content/uploads/2017/09/FINAL-report-Lynching-without-End.pdf.
 India must blame itself, not WhatsApp, for its devastating lynching spree, available at https://thenextweb.com/in/2018/07/04/india-must-blame-itself-not-whatsapp-for-its-devastating--spree.
 Available at https://ulii.org/ug/legislation/bill/2018/11-0.
 Museveni explains social media, mobile money shutdown, available at http://www.monitor.co.ug/News /National/Museveni-explains-social-media--mobile-money-shutdown/-/688334/3082990/-/rj5kk5z/-/index.html>
 Uganda election: Facebook and WhatsApp blocked,” BBC, February 18, 2016, http://www.bbc.com/news/world-africa-35601220; Morgan Winsor, “Uganda elections 2016 social media: Facebook, Twitter, Instagram, WhatsApp blocked during voting,” International Business Times, February 18, 2016, http://www.ibtimes.com/uganda-elections-2016-social-media-facebook-twitter-instagram-whatsapp-blocked-during-2312671
 Anger at Uganda's tax on social media, available at https://www.bbc.com/news/world-africa-44682345.
 Uganda: Scrap social media tax curtailing freedom of expression, available at https://www.amnesty. org/en/latest/news/2018/07/uganda-scrap-social-media-tax-curtailing-freedom-of-expression.
 Eastern Africa: New tax and licensing rules for social media threaten freedom of expression, available at https://hrnjuganda.org/?p=4509.
 Uganda government sued over social media tax, available at http://www.ktvq.com/story/38558407/uganda-government-sued-over-social-media-tax.
 Act 05 of 2018, available at http://ken yalaw.org/kl/fileadmin/pdfdownloads/Acts/ComputerMisuseand CybercrimesActNo5of2018.pdf.
 Sections 22 and 23.
 The Constitution of India, 26 January 1950, available at http://www.refworld.org/docid/3ae6b5e20.htm.
 In The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia  2 SCR 821.
 AIR 2015 SC 1523.
 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html
 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at http://www.refworld.org/docid/3ae6b3aa0.html.
 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195, available at http://www.refworld.org/docid /3ae6b3940.html .
 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at http://www.refworld.org/docid/3ae6b38f0.html.
 UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at http://www.refworld.org/docid/45f973632.htm .