Filtering out free speech

Publication Type: 
Other Writing
Publication Date: 
January 17, 2020

In a landmark ruling earlier this month, India’s Supreme Court held that citizens’ right to freedom of speech and rights to carry out business using the internet are constitutionally protected. The new decision builds in part on an equally important 2015 case, Shreya Singhal v. Union of India, in which the Court defined key rules for the relationship between democratic governments and commercial internet platforms. That case called on courts and government agencies — not companies like Google or Facebook — to decide what speech and information violates the law, and must be removed from public view on the internet.

As I teach my students at Stanford, Shreya Singhal was one of the defining rulings of modern internet law. It had important consequences for lawyers reviewing takedown demands at platforms like Google, as I did in my previous role as associate general counsel to that company. But its greatest importance was for smaller businesses and ordinary internet users. Shreya Singhal clarified that competent public authorities, not private platforms, should sit in judgement when online speech is alleged to violate the law. In practice, this has allowed platforms to enforce their terms of service, while ensuring that only courts and government authorities decide what speech and information is prohibited by law. That model is under attack in India today, most importantly through the Intermediary Rules proposed by the Ministry for Information and Technology.

Shreya Singhal corrected a serious problem with platforms’ incentives to remove lawful content from the internet. Platforms routinely receive allegations that users have violated the law from accusers who demand removal of particular posts or accounts. Sometimes those claims are correct. But all too often, they are false, intended to manipulate platforms into silencing particular speakers. Some seek to suppress important online speech, like reporting on police brutality or scientific research. Others — a majority, according to one early study — come from businesses trying to harm their competitors. Research, including in India, has shown that platforms of all sizes often simply honour these invalid requests from accusers — improperly silencing legal speech, or cutting off customers’ access to legitimate businesses. The Court in Shreya Singhal corrected this lopsided incentive, saying that binding decisions about what content violates the law should come from courts or appropriate government agencies following fair processes — not from private platforms or accusers.

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