By: Aditya Danturty
INTRODUCTION
On 30th January, 2024, the High Court of Delhi refused to direct Meta to pre-censor and remove hateful content pertaining to the Rohingya community seeking refuge in India. The existence of a statutory mechanism for redressal under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter ‘IT Rules’) was cited as the reason for the non-invocation of the constitutional writ jurisdiction of the High Court. Further, the court expressed its disapproval of pre-censorship of content and specific monitoring mandates, determining them to be more harmful than the ill-effects of the content itself.
The court reasoned in its order that the statutory redressal mechanism under the IT Rules was an adequate remedy for dealing with hateful content and there stood no reason for the invocation of the writ jurisdiction of the court. However, this reasoning runs counter to settled writ jurisprudence. It also sets a dangerous precedent for a developing country that is starting to tackle issues arising out of an influx of refugees due to neighbouring conflicts.
WRIT AND CONSTITUTIONAL JURISPRUDENCE
The writ jurisdiction of the High Court and the Supreme Court can be invoked under Article 226 and Article 32 of the Indian Constitution, respectively, in case of breach of fundamental rights enshrined in the constitution. The courts have imposed a positive obligation on the State, including the courts themselves, to enforce fundamental rights. However, the courts have been hesitant to grant writs in cases where alternate remedies have not been exercised before the invocation of the court’s writ jurisdiction. Implicit in this rationale is the requirement to determine whether the alternate remedy available is effective in meting out the purpose of justice.
THE TEST OF EFFICACY
For the above-mentioned reasons, the courts have relied on the test of efficacy to determine the effectiveness of an alternate remedy. It is settled law, brought forth in judgments such as Radha Krishna Industries v. State of HP that the courts shall not entertain writ petitions if an effective and efficacious remedy is available. However, this has not been held to be an inelastic bar to hearing such petitions. This is especially true when (1) there is violation of the fundamental rights of an individual or (2) where there has been a violation of the principle of natural justice or (3) when orders or proceedings are without jurisdiction.
Thus, the existence of an alternate remedy does not absolutely preclude petitioner seeking relief from invoking the writ jurisdiction of the court.
REMEDY UNDER THE IT RULES
The order of the court in the present matter referred to the alternate remedy under Rule 3 and Rule 3A of the IT Rules as the appropriate course of action to be taken. These rules are due diligence requirements imposed on intermediaries, including social media platforms. Rule 3(2) specifically provides for a grievance redressal mechanism. Rule 3(i)(b) enumerates a list of content deemed objectionable, which includes content that is prejudicial to the unity of India.
Rule 3A sets up the appellate layer of grievance redressal under these rules. This committee primarily consists of members appointed by the Central Government. The Grievance Appellate Committee is mandated to entertain and adjudicate on an appeal within thirty calendar days of an appeal against the order of a Grievance Officer.
THE INEFFECTIVE ALTERNATE REMEDY
This blog argues the ineffectiveness of the above-mentioned rules as a sufficient remedy in the present matter on two grounds. First, any remedy under the IT rules is slow to take effect. Second, any remedy under the IT Rules targets the symptom and not the broader cause of the problem.
Speed of Removal of Objectionable Content
The present case of false information being circulated regarding Rohingya refugees comes under the ambit of content-creating enmity based on religion and content prejudicial to the unity and sovereignty of India. Thus, a complaint of the same would have to be resolved within seventy-two hours.
If such a complaint is not satisfactorily acted upon, the time provided to the appellate authority for acting upon the appeal is thirty days. Thus, it may take a total of thirty-three days to ensure action on one piece of objectionable content. This renders the whole exercise moot. The speed and nature of social media ensure that objectionable content may gain virality in a matter of a few hours. Any resultant damage will already be put into motion long before the grievance redressal mechanism catches up with such content.
Malicious Content Being a Recurring Problem
In the present matter, the petitioners sought a systemic remedy for dealing with all false content being posted about Rohingya refugees on Meta-operated social media intermediaries. This petition is grounded in the fragility of the Rohingya community due to their refugee status. This fragility makes the Rohingya refugees especially vulnerable to violence caused due to false narratives pedalled on social media. The remedy provided under the IT rules only targets malicious and false content once it has already been posted. However, the present concern is a recurring problem that requires a sustainable solution.
FOREIGN JURISPRUDENCE
Jurisprudence originating from the United States of America holds a different perspective regarding the regulation of social media intermediaries and court intervention for the same. Social media intermediaries are often shielded by First Amendment absolutism. Non-constitutional actions are barred by Section 230 of the Communications Decency Act, which precludes social media intermediaries from being liable for hosting any content. As it stands, Brannon states that there are little to no efficacious remedies present in US federal law. Further, the principle of exhaustion of statutory remedies in the United States primarily concerns the decisions of administrative agencies.
Looking to the United Kingdom, the British Parliament has enacted the Online Safety Act (hereinafter ‘OSA’) to impose liability on social media intermediaries for content hosted on the platforms. Social media platforms are classified as user-to-user services under the OSA. There is no mechanism in place for individuals to approach the authorities in their personal capacity to bring down objectionable content. However, UK jurisprudence is more permissive with regard to state intervention in social media.
The Office of Communications monitors complaints and takes action if it determines any feature to be detrimental to the public interest. It does not, however, respond to individual complaints. The OSA, however, sets up a mechanism of super complaints in Part 8 Chapter 2, such as those in other British legislations. Super complaints are complaints brought to the attention of the Office of Communications by large interest groups, the list of which is already notified.
European jurisprudence attempts to strike a better balance between pervasive control and free speech absolutism. Any individual alleging the infringement of European Union regulations by a service provider can lodge a complaint with the Digital Services Coordinator under Article 53 of the Digital Services Act. European courts have also allowed parties to approach the courts directly for the removal of objectionable content, such as the Austrian Supreme Court ordering Facebook to cease and desist from hosting any content against an Austrian Green Party Leader. Further, the courts have gone as far as to allow specific monitoring obligations when the illegality in question is predefined.
CONCLUSION
Thus, the order of the Delhi HC is inconsistent with settled writ jurisprudence. The protection of fundamental rights is a positive obligation on the State and the courts. Nothing precludes the courts from exercising their full authority to ensure the upholding of fundamental rights of individuals. Article 21 of the Indian Constitution, or the right to life and liberty, applies to the Rohingya refugees due to the non-exhaustive wording of the provision. The fundamental rights to life and liberty of the Rohingya community are violated by malicious false content that increases the threat of harm to an already endangered community. The state has an obligation to take protective measures against the same. Any such progressive discrimination also passes constitutional tests laid out to check arbitrariness.
Parties seeking remedies for infringement of fundamental rights are not precluded from invoking Article 226 if there is a violation of fundamental rights. Further, an alternate remedy can only be enforced on the party filing a writ petition if it is efficacious. The remedy provided under the IT rules is ineffective, especially for the purpose for which the court has been approached in the present matter. This is because it is a slow process that does not redress concerns raise efficiently. Further, the IT rules, apart from suffering from structural defects, operate on a post-facto basis and do not initiate systemic action for protecting the rights of refugees.
Foreign jurisprudence greatly varies on the liability imposed on social media intermediaries and the mechanism for grievance redressal against said intermediaries. Jurisprudence in the United States leans towards First Amendment absolutism. European courts, on the other hand, allow for specific monitoring obligations along with court intervention. A writ petition directing the government to mandate Facebook to specifically monitor malicious content against the Rohingyas is not bad in law.
(Aditya Danturty is a law undergraduate law at National Law University,Odisha. The author may be contacted via mail at 22bba002@nluo.ac.in)
Cite as: Aditya Danturty,From the Frying Pan into the Fire- Writ Jurisprudence vis-a-vis Social Media Intermediaries, 4th July 2024<https://rmlnlulawreview.com/2024/07/04/from-the-frying-pan-into-the-fire-writ-jurisprudence-vis-a-vis-social-media-intermediaries/>date of access.
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