Disinformation, hate speech a challenge to free speech, says CJI D Y Chandrachud

Chief Justice of India D Y Chandrachud on Friday said that the unprecedented proliferation of disinformation and hate speech on the internet has offered a serious challenge to the traditional ways of understanding free speech in a democracy.

“We must ask ourselves a more fundamental question — is disinformation protected by traditional free speech theories and constitutional jurisprudence under Article 19 of the Indian Constitution? I believe that demonstrably false facts are not protected by traditional free speech theories,” he said.

He was delivering the 14th Justice V M Tarkunde Memorial Lecture on ‘Upholding Civil Liberties in the Digital Age: Privacy, Surveillance and Free Speech’.

“Traditionally, freedom of speech and expression was deemed to be an essential part of civil rights activism because of the fear that the government would prevent certain kinds of speech from entering the marketplace. With the advent of troll armies and organised disinformation campaigns across different social media platforms, the fear is that there is an overwhelming barrage of speech that distorts the truth,” Justice said.

He highlighted the “flip side” to adopting privately owned platforms as the medium for dissent, activism, and expression of free speech.

“With corporations wielding such immense power, there is trust placed on them to act as the arbiters of acceptable and unacceptable speech – a role that was earlier played by the state itself. This can have disastrous effects. It has been widely reported and recognised by the UN that social media was used as a tool for ethnic cleansing in Myanmar by the military and members of civil society,” he said.

The CJI said unlike state actors who are held accountable by the Constitution and the electorate, social media platforms are relatively unregulated.

"This is another novel challenge that digital liberties activists have to find unique solutions to," he said.

With regard to privacy, he said, in the digital age, it is not just a matter of data protection; it's a fundamental right that we must actively champion.

"The stories of individuals navigating the digital realm, from rural artisans to urban professionals, highlight the myriad ways in which personal data becomes intertwined with our daily interactions," he said.

However, in navigating the complex terrain of privacy and state surveillance, Indian jurisprudence has continually grappled with striking a balance between individual rights and legitimate state interests, he said.

"The nuanced approach taken by the courts reflects an evolving understanding of privacy as a dynamic and multifaceted right, adapting to the challenges posed by advancements in technology and the expansive reach of state actions," the CJI pointed out.

He dispelled the claim that economic status and access to welfare entitlements are more important than civil and political rights for socio-economically disadvantaged communities.

"All individuals, regardless of their socio-economic status are deeply impacted by violations of the right to privacy, autonomy, and intimacy," he said.

"The dual nature of technology is apparent as a catalyst for progress harbouring inherent privacy risks. Surveillance analytics, despite its benefits in healthcare and crime prevention, prompts substantial privacy concerns. Practices such as web cookies and social media data harvesting have raised alarm bells," he underscored.