FREE SPEECH VS. HATE SPEECH: FINDING THE LINE

AUTHOR: VEDENDRA PRASAD, AMITY UNIVERSITY, PATNA

ABSTRACT

Digitalization of most conversations has already been the norm for quite some time now. When differentiating it from conventional forms of communication we can point out that the most evident difference is that all digital conversations are saved in a way that is easily accessible. Another thing is that digitization gives a voice to everybody through social media platforms, people can even make their identifications anonymous. This scenario gives rise to a very difficult debate of Free Speech vs. Hate speech. This research paper sheds light on the use of digital platforms to avoid liability and indulging in hateful speech such as cyberbullying or illegal communication. Also, it analyzes how to prevent censorship of free speech while criminalizing/censoring hate speech. The paper uses the views of the judiciary and people individuals of intellect & influence while considering the data compiled by different agencies. 

The paper concludes by providing a probable solution to this dilemma by implementing a lens to identify the difference between Free Speech  & Hate speech.

Keywords

Free Speech, Hate Speech, Digitalization, Anonymous, Social Media.

INTRODUCTION

This paper delves into the reality of censorship of hate speech and how the balance of maintaining freedom of speech and stopping hate speech is poorly handled.  The paper talks about the urgent need for preventing/censoring/criminalizing hate speech as to the sheer amount of misuse that has been going on through social media platforms. This has become serious to the point where it is now a national security concern. ‘Social Media Effect on National Security’ by Sultan Al-Masaeed is a great study of the threats caused by social media. Through the multiple sources of data shown in this paper it is presented in the paper the dire need of a proper system to regulate the things that are said or shared on social media and how a lacuna in this realm of cybersecurity can lead to calamitous consequences. While discussing the need for regulations we also need to analyze the current mechanisms that regulate speech on the internet and if they meet the requirements of the contemporary threats. When we start to unfold the reality of current regulations in place, it takes a keen eye to figure out the agendas that are behind them aren’t what they are supposed to be. When put under a microscope it is evident the political motivations behind the biased censorship of speech on the internet. Facebook & Instagram under Meta and X (Formally Twitter) have all been either found guilty of unethical censorship or have admitted to it.

The objective of this research paper is to explore this debate further and find a middle path that addresses concerns regarding controlling hate speech and promoting free speech. It has been rightly said that freedom of speech is the most important right of all and the reason behind this statement becomes more and more deep as the days pass by. Free speech is a prerequisite for other freedoms and for living in a free society. The Supreme Court of India on many occasions have become the savior of free speech, the first case that comes to mind has to be the celebrated case of Menka Gandhi v. UOI. This paper tries to establish a lens through which the balance of free speech and its restrictions can be attained. 

This paper will assist tech companies, legal experts, and legislators in developing more sophisticated strategies for controlling hate speech without violating the right to free speech.

LITERATURE REVIEW 

To better understand the intricacies of this dilemma, there is no better way to delve into it than doing a thorough literature review, however for the purposes of this paper, synopsizes of some of the more impactful literature are provided. 

John Stuart Mill’s “On Liberty” (1859)

John Stuart Mill defends the notion that human liberty, especially the right to free speech, is crucial to both society and personal advancement in this timeless essay. The key claim made by Mill is that since free speech is essential to the search for truth, it should be protected even when it is disagreeable or disagrees with the views of the majority. But Mill also presents the damage principle, which holds that speech is only subject to limitations if it does actual harm to other people.

International Covenant on Civil and Political Rights (ICCPR) 

Global standards for civil and political rights are established by the International Covenant on Civil and Political Rights (ICCPR). Article 19 preserves the right to free expression, although it also provides for limits in the interests of public order, health, or morals. Article 20 takes it a step further and mandates that states forbid the promotion of hatred towards nationalities, races, or religions that provoke animosity, violence, or discrimination.

The dual protection and limitation approach of the ICCPR is mirrored in several national statutes, such as Articles 19(1)(a) and 19(2) of the Indian Constitution.

Gautam Bhatia’s “Offend, Shock, or Disturb” (2016)

In this book, Gautam Bhatia examines the constitutional restrictions on expression and challenges India's free speech jurisprudence. He believes that India frequently takes a wide stance when it comes to restricting free expression, enabling the government to silence dissident voices in the name of upholding public order. In her discussion of historic cases and the courts' changing involvement in deciding speech-related disputes, Bhatia draws attention to the tension that exists between the right to free speech and social values like morality and decency.

The Intermediary Guidelines and Digital Media Ethics Code Rules (2021)

In order to control digital platforms, especially social media and digital news sources, the Indian government developed the Intermediary Guidelines. According to these guidelines, platforms have to take down illegal content, including hate speech, within 36 hours of getting a complaint. Furthermore, the standards mandate that platforms preserve the traceability of content creators and include ways for users to resolve grievances.

Romesh Thappar vs State of Madras

In this case, the petitioner used to publish and circulate a newspaper named “cross roads” which used to review and criticize the schemes and activities of the government of Madras. The Madras government restricted this newspaper's access and distribution within the state on the basis of public safety. In this case, the Supreme Court ruled that the newspaper's right to circulate is exclusive to the establishment, meaning that neither the newspaper's business nor the state of Madras may impede on that right. Article 19(2) prohibits the state of Madras from imposing a prohibition on the admission and distribution of newspapers, since it is not a legitimate limitation based on public safety.

Prabha Dutt vs Union of India

The petitioner, Smt Prabha Dutt Chief of Hindustan Times, filed a petition under Article 32 of the Indian Constitution, requesting a writ directing the respondent, the Tihar Jail superintendent, to grant her access to interview Billa and Ranga, two prisoners facing the death penalty for an offense covered by Section 302 of the Indian Penal Code. It is reported that the petitions they filed with the President of India to communicate the sentence were recently denied.

Shreya Singhal v. Union of India

The Court nullified Section 66A on the grounds that it breached Article 19(1)(a) of the Indian Constitution, which guarantees the right to free expression. It was determined that the clause's excessive ambiguity and breadth would allow it to be abused to criminalize free expression.

Although this ruling established a solid precedent for protecting free speech online in India, it also sparked worries about the absence of laws governing communication that is actually damaging online, including hate speech.

METHODOLOGY

In order to fully analyze case law, legislation, and policy documents pertaining to hate speech, digital platforms, and free expression, this research uses a doctrinal and conceptual legal approach. In order to determine how national legal systems—with an emphasis on India in particular—and international frameworks—like the ICCPR—address the tension between hate speech legislation and freedom of expression. This doctrinal approach makes it possible to examine in-depth how judicial interpretations and legal norms have shaped this field of law.

Participants/Subjects:

1. The primary sources for this legal study are as follows: 1. Court rulings from both domestic and foreign courts, with an emphasis on constitutional challenges to anti-hate speech legislation.

2. Laws and rules including the Digital Media Ethics Code Rules (2021) and Intermediary Guidelines.

3. Academic writings and legal analyses on hate speech and free speech, such as John Stuart Mill's "On Liberty" and Gautam Bhatia's "Offend, Shock, or Disturb."

4. International accords, such as the International Covenant on Civil and Political Rights and their application in national and international arenas.

   
   

Data Collection:

1. Legal Databases: For case law, laws, and legal commentary, the main sources of data were reputable legal databases like Manupatra, SCC Online, and Westlaw. High court verdicts, Supreme Court of India rulings, and pertinent decisions from other foreign courts are also included in the research.

2. Policy Papers and Scholarly Articles: Government white papers, policy institute studies, and scholarly publications provided further information.

3. Expert Legal Interviews (Optional): Interviews with lawyers or specialists in digital rights and free speech were taken into consideration, even if they were not a fundamental component of the approach, in order to get real-world understanding of the effects of laws prohibiting hate speech.

RESULTS

1. Findings:

The main conclusions drawn from the examination of policy documents, rules, and case laws are presented in this part. The study concentrated on how legal systems and digital corporations now manage the delicate balance between regulating hate speech and allowing free expression.

Legal Inconsistencies:

-Inequitable Enforcement of the Laws: One of the primary findings was that, despite attempts to strike a balance between the freedom of expression and limits on hate speech, legislation such as Articles 19(1)(a) and 19(2) of the Indian Constitution and the ICCPR are not consistently applied in practice. For example, platforms are required by India's Intermediary Guidelines and Digital Media Ethics Code (2021) to remove hate speech content within 36 hours, but internet businesses sometimes find it difficult to distinguish between legal free expression and hate speech. 

-Vagueness in Definitions: A lot of legal systems, both domestically and internationally, struggle to define precisely what constitutes hate speech. Due to this vagueness, governments can exploit the rules to stifle criticism and punish dissenters under the pretense of prohibiting hate speech, as demonstrated by well-known instances such as Romesh Thappar v. State of Madras and Shreya Singhal v. Union of India.

-Jurisdictional Issues: As digital platforms are international organizations, jurisdictional issues come up. For example, communication that is considered appropriate in one nation could be considered hate speech in another, creating a problem for law enforcement. Companies like Meta and X (previously Twitter) have had to deal with competing legal requirements across national borders.

Tech Companies and Content Moderation:

Tech companies have taken on the role of gatekeepers in speech regulation. As middlemen, social media platforms have been pushed to self-regulate material. But their moderation procedures have come under fire for going too far in censoring content and failing to take appropriate action when it comes to offensive comments. For example, in India, platforms have been accused of enabling hate speech by not intervening quickly enough, while in the US, they have come under fire for eliminating political speech that was deemed problematic. A number of internet firms, including X and Facebook (Meta), have been charged with biased content moderation. A few examples of how specific political beliefs were disproportionately targeted for censorship may be found in internal papers and whistle blower accounts, which raises questions about the impartiality of digital platforms.

India, a nation that is expanding quickly in cyberspace, is seeing a sharp rise in cybercrimes, including cyberbullying.  India leads the world in the frequency of internet harassment, with over 33% of youngsters reporting having been the victim of it. Based on data from the NCRB, there was a 63.48% increase in cybercrimes between 2018 and 2019.

On the other hand, in the course of this six-month monitoring period, IPI found 83 instances of press freedom breaches in India. IPI research indicates that online censorship and communications and internet outages accounted for the majority of press freedom breaches during this time. The highest number of network shutdown orders worldwide are issued by the Indian government.

DISCUSSION

The thing that is most evident while evaluating the findings of this paper is the dilemma surrounding the intricate balance between free speech and hate speech. On one hand, the prerequisite of free speech in modern society cannot be understated. On the other hand, hate speech has been  growing rapidly in this digital era as more and more people get access to the internet. Controlling and limiting free speech, therefore, seems justified. The right to freedom of speech comes with the duty not to violate the rights of other people or to indulge in illegal activities. freedom of speech should be limited to an extent which does not inflict harm on any other individual or society as whole. However, this argument against free speech is greatly misused by people with an agenda to stifle criticism.

Intention (Mens Rea) matters the most in situations where the line between right and wrong is blurred. A person exercising free speech with good intentions should never face censorship, however, it is apt for a person to get penalized for exercising his right with wrong intentions or doing so knowingly that his action could cause hurt or damage any other person.

To identify and differentiate good intentions and bad intentions is a task that has troubled even the brightest of minds, however, even if one cannot know the mind of a person, the actions of that individual speaks volumes about the person’s intentions. Therefore only by identifying intent can we make a clear distinction between free speech and hate speech. The idea that this paper tries to propagate is to provide a lens through which we can solve our dilemma. Certain industries, people of interests, media houses and certified journalists should be granted a more powerful right to freedom of expression and the activities of these people should be under scrutiny by a body similar to the Bar Council of India, and the penalties for violating the rules should be harsh. The disparity between the rights of these licensed persons and normal citizens should be similar to the disparity between a lawyer and a normal citizen. Now, this doesn’t mean that normal citizens ostracized, however the limitation on their free speech should be just enough that we can mitigate hate speech. Provided that, normal citizens can always raise their concerns through the licensed person just as a person would approach the court through a lawyer. This solution not only safeguards free speech but also makes it easier for the authorities to find people who misuse their right of expression. This solution also makes sure that, as the licensed persons have extraordinary right to express themselves, no one can use the arguments against hate speech as a trojan horse to stifle criticism.

CONCLUSION

The distinctions between hate speech and free expression are becoming more hazy in the digital era, necessitating a quick and careful approach to their regulation. The paper emphasizes that although the freedom of expression is essential to a democratic society, it also carries with it the need to respect the rights of others. Unchecked hate speech spread, especially on social media platforms, caused harm to people and jeopardized national security. However, abusing platforms and legal frameworks to suppress dissent under the guise of controlling hate speech can undermine the fundamental principles of free speech. 

As was mentioned, the correct response is to develop a framework that separates speech according to its intention. It will be easier to distinguish between destructive hate speech and acceptable free expression if good intentions are rewarded and bad ones are punished. A viable approach forward is a regulatory paradigm that allows specific sectors, media outlets, and qualified experts additional rights to free expression while keeping them accountable under a governing body. Normal people should still be able to express themselves, but with restrictions that guarantee hate speech is lessened without stifling constructive criticism. In the long run, this strategy tackles the growing dangers posed by hate speech while upholding the integrity of free expression. This paradigm can contribute to the development of a more equal and healthier digital and societal environment by encouraging responsible expression and maintaining a balance in regulation.