Thursday, May 6, 2021

DGPs, CMs – Don’t clampdown on Covid Comments in Social Media

  • Apex court warns action for Contempt of Court!

M Sridhar Acharyulu

Dear Directors General of Police of States, the Chief Ministers and Ruling party presidents, keep aside your power-based egos, and listen to what Supreme Court Justice Chandrachud has said. Do not exhibit your cruel power on hapless covid patients or their relatives if they criticised you for not coming to their rescue.

Justice DY Chandrachud has administered a stern warning: “We will treat it as contempt of court if such grievances are considered for action. Let a strong message go to all the states and DGP of states that clampdown of info is contrary to basic precepts.” He further said “We want to make it very clear that if citizens communicate their grievance on social media and the internet, it cannot be said it’s wrong information.”

“I am flagging an issue of grave concern. If citizens communicate their grievances on social media or news, there is no reason to presume that’s not correct. There cannot be a clampdown on information,” said Justice Chandrachud. Supreme Court has said there should not be any presumption that grievances raised on the internet by citizens are false.

It is atrocious

It is atrocious to clampdown on social media for sending across SOS messages. During the pandemic times, its only social media, where common man can communicate with the society with a hope that somebody might respond.

In an insensitive administration and cruel commerce of covid merchants and amidst sold-out channels of media, a patient has no other go except to use the social media platform. He is crying on Facebook and forwarding tears on WhatsApp. And the most of the state governments and their heartless rulers and party goons are attacking those common voices, using police to suppress their SOS messages as spreading of wrong news. They are abusing the extra-ordinary powers under Disaster Management Act and misusing the muscle of governing power to arrest, attack, detain and deter the voices of virus victims. For Facebook writings police are booking cases and writers are facing false oppression. This attack on social media users is rampant in northern states where the governments are trying to hide the real figures of dreadful dancing of death. 

The Supreme Court had rightly taken suo motu cognizance of ruling party’s unruly attack on social media freedom on 30th April 2021. The SC Bench has warned State governments and police against clamping down on the spread of information or calls for help through social media from citizens affected by COVID-19.

Contempt of court

A Special Bench of Justices D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat said any move by any State to punish citizens who take to the social media to seek help for oxygen cylinders, COVID-19 drugs, beds, hospitalisation, etc, amid a rampaging second wave would attract contempt of court action. This is the right order and suffering masses want the leaders and police officers to be jailed for contempt of court, contempt of humanity and impunity for their power drunk criminality.

Justice Chandrachud was more vocal against such politics, saying: “We will treat it as a contempt of court if such grievances are considered for action. Let a strong message go to all the States and DGPs of States. Clampdown of information is contrary to basic precepts”.

Solicitor General Tushar Mehta, representative of Central Government said: “As an officer of the court, I fully agree with what Your Lordships have said”. Justice Chandrachud reminded the present Governments how the free flow of information in the 1970 famine enabled the then governments to tackle problem effectively as compared to clampdown during the 1918 pandemic. Justice Rao reminded the States that this was a time of great crisis. The Bench said empathy and action should be the rule of the day.

While state police personnel are clamping down on social media writers for their criticism of the Governments, the Centre asked the Twitter to remove several accounts simply on the ground that they contained critical comments against the inefficiency of the Government in managing the health crisis. It is hiding the figures of ever increasing deaths caused by covid and shortage of oxygen, and banning the critical comments on social media.

Centre’s Censorship of Twitter

The Centre had recently issued an order to Twitter saying some tweets on Covid were not in compliance with India’s IT law. Promptly following the orders of the Central Government, the Twitter has blocked several tweets made by some popular handles, including handles belonging to Member of Parliament Revanth Reddy, West Bengal Minister Moloy Ghatak, actor Vineet Kumar Singh, and filmmakers Vinod Kapri and Avinash Das. The central government has sent a notice to the company saying that these tweets were not in compliance with India’s IT law.

The tweets reportedly highlighted either the missteps of the government or the miseries of people caught in the Covid-19 pandemic. Twitter did not say anything on this but sent notices to some account holders about the removal of their comments.

The Tweets that have been deleted were strongly questioning the scarcity of medicines that is hurting Covid patients. A few comments are about the Kumbh Mela that took place in Haridwar even as the pandemic saw a resurgence. Though banned in India, the tweets are still available if they are accessed from outside India. Theses tweets are no longer accessible:

A ‘mini-censorship’ on Media imposed by NaMo Government as exposed by MediaNama webportal.  52 tweets were blocked out, because they were critical of the Government’s miserable failure. It is well known that the world media denounced the Indian management was poor and inefficient. For example: Congress MP Revanth Reddy, from Malkajgiri of Telangana, tweeted that India was having over 200,000 new cases of the virus per day, and that the healthcare system was collapsing. He also posted a picture of a mass cremation on his twitter account. Now we cannot see it in India, while whole of the world around can see.

Block down to hide failure

This time it is not en bloc lock down like in 2020 but selective block down of the voices to hide Government’s corona failures. The Union requested the ‘twitter’ and the later promptly complied with it to censor 52 tweets.

Not just the voices of the journalists or social activists, the voices of MPs through tweets were also curbed. Besides tweet of Revant Reddy, Indians are barred from seeing the critical remarks of Moloy Ghatak, a West Bengal state minister; actor Vineet Kumar Singh; and two filmmakers, Vinod Kapri and Avinash Das. The web portal MediaNama has seen public disclosures of the orders made available by Twitter to the Lumen Database. Lumen Database receives and publishes disclosures from private entities, including social media companies, of legal takedown notices they get from governments and private entities all over the world as per MediaNama. 

MediaNama’s exposure

MediaNama, a popular Technology media news website, earlier exposed how the withholding of Rajya Sabha Member of Parliament Sukhram Singh Yadav’s Twitter account based on a Lumen Database disclosure happened. Such orders are typically sent by the Ministry of Electronics & Information Technology (MEITY) of Government of India. The MediaNama also reported that the Filmmaker and former journalist Vinod Kapri confirmed to it that he had received a notice from Twitter that his post was restricted in India. The website also reported the confirmation from others whose tweets were deleted.

Commerce by intermediaries

The question to be raised is, what is the status of platforms like the Twitter or Facebook? They are not like any newspaper or an independent journalist. It is just a business company ambitious of making huge profits out of using the news content and current events. They simply obey the request of the Government to remove the comments as if that was a writ. Twitter or similar commercial platforms on cyberspace do not even feel aggrieved because of its lack of commitment for free circulation of all ideas, which the Constitution of India under Article 19 guarantees like several democratic Constitutions world over. It is Article 19 of the Universal Declaration of Human Rights asked all the member states to ensure the freedom of speech, expression and to receive information.

The organizations like Twitter etc should know that they are not bound by these obligations which go against Constitutional norms. The twitter’s response to MediaNama’s question was: “When we receive a valid legal request, we review it under both the Twitter Rules and local law. If the content violates Twitter’s Rules, the content will be removed from the service. If it is determined to be illegal in a particular jurisdiction, but not in violation of the Twitter Rules, we may withhold access to the content in India only”.

First, whether the request from Modi’s Ministry was a legal request? From its answer it is clear that it was not violative of local law, but twitter finds that their rules were breached and hence removed. Second question is: Is it correct even according to twitter policy? When Twitter is claiming that they reviewed it, why not it be transparent and give the details of review and the reasoning of the review committee for deletion? If it is not violative of local law, how can they delete the content only on the ground that ‘violated rule’? Which rule is violated? What is the validity of the rule if that allowed deletion of comment though not violative of local law?  Twitter said: “In all cases, we notify the account holder directly so they’re aware that we’ve received a legal order pertaining to the account”. Twitter must share the legal order copy also. How a ‘request’ from Government could be treated as a legal order? What is the legal basis? Why did it not display the legal order if it is really ‘legal’? It also claimed: We notify the user(s) by sending a message to the email address associated with the account(s), if available. Read more about our Legal request FAQs.  The legal requests that we receive are detailed in the biannual Twitter Transparency Report, and requests to withhold content are published on Lumen. 

Harmful or false?

The company claimed that it had notified users about their tweets’ censorship, and that they only remove COVID-19 misinformation if it advances a harmful narrative and is demonstrably false. If that is true, is criticism harmful? In fact, the censorship of criticism is harmful to democracy as the Government will tend to become more dictatorial. How can twitter say the ‘criticism’ is demonstrably false? In fact, demonstrably false and fake campaign is rampant on social media by official and non-official groups of various ruling parties in India. Fake news on social media is a serious threat to democracy.

The content of critical comment is about multi-phase elections in West Bengal, a very contentious issue, especially when rulers are irresponsibly addressing huge rallies unmindful of hazardous risk of corona spread. It is in this context West Bengal’s Minister of Labour and Law Moloy Ghatak criticised that India would “never forgive” the Prime Minister for what he described as underplaying the seriousness of the pandemic, and for exporting doses to other countries.  A tweet of ABP News editor Pankaj Jha, was calling out the difference in attitudes towards the Tablighi Jamaat event in 2020 and the Kumbh Mela.

Actor Vineet Kumar Singh’s Hindi tweet was that he was in Varanasi and that it was difficult to get medication, and criticised political rallies being held amid the pandemic.

Filmmaker and former journalist Vinod Kapri made a tweet about the mass cremations with a video of one such cremation ground. In that tweet, Kapri made a sarcastic remark about how a promise (during PM’s campaign in UP elections) to make more shmashānas (Hindu cremation grounds) had been fulfilled. All of these are removed.

When contacted by MediaNama, the actor wrote: “India is facing biggest crisis of all times, thousands are dying EVERYDAY just because of lack of oxygen and medicines and it is my moral duty as a filmmaker and Journalist to tell the truth, to expose this inhuman and immoral Government who instead of supplying oxygen to dying patients, is writing to Twitter to take action against free and independent voices,”

Contentious hashtag

There is an earlier history of removal of some tweets. Centre was very strongly opposing certain contentious hashtag tweets like the #ModiPlanningFarmerGenocide hashtag etc. All those dozens of tweets were withheld.  These comments can never be termed as abuse of freedom of expression. They are common man’s general questions.

Twitter Rules should be subordinate to the rules of the Constitution of India as far as our freedom of expression is concerned. Government of India should rule according to Constitution. The censorship of comments though limited for Indian viewers should be strictly on grounds listed out under Article 19(2) of Indian Constitution which says: (2) Nothing in sub clause (a) of clause (1) (“all citizens shall have the right to freedom of speech and expression”) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, 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 offence”.

Time to question Twitter

This is the time the aggrieved should question the twitter’s unilateral action of removal of their comments without hearing from them. Twitter like social media platforms should have ombudsman with good experience of legal and constitutional issues to receive, hear and decide objectively the ‘legal order’s or ‘legal requests’ to remove abusive comments.

Though it is serious breach of freedom of expression of these tweeting personalities, the remedy is not provided. Except Article 32 remedy of knocking the doors of Supreme Court, no other remedy is visible. Is it possible for the ordinary twitter commentators to approach the Supreme Court? Does this mean that we have to surrender our freedom of speech at the feet of either twitter, which subserves the interests of a Ministry of Government of India?

This censorship reflects intolerance to criticism and government’s intention to control the cyber media and through that to dictate the minds of the people.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is former Central Information Commissioner and Professor of Law at Bennett University

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