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Digital exclusion and natural justice

In these pandemic times, any move by social media platforms to limit access of users must meet the Constitutional test on freedom of speech, says ASHIT KUMAR SRIVASTAVA.

ASHIT KUMAR SRIVASTAVA | New Delhi |

In the current pandemic situation, people around the world have been confined to their homes with limited social interaction. Luckily, the digital world has come as a savior for keeping the global engine running, if not smoothly at least moderately.

And that is the importance of the digital era, which works as a great enabler under the present circumstances allowing humans to keep in touch at least digitally. Not only as a social factor, but the role of technology becomes important from the perspective of fundamental rights as well.

The role of social media platforms/technology becomes important, knowing that these become a means of expression, association and even availing services.

Thus, it could very well be concluded that in present times social media platforms are imitatively annexed with fundamental rights and it would be hard to segregate one from the other.

In these circumstances, we need to analyze the implications of digital exclusion, and what impact it would have on our fundamental rights, as well as on the social status of the individual.

This is because digital exclusion will also lead to social exclusion.

The recent legal controversy between the Indian Government and the micro-blogging platform Twitter surely becomes a case study for better comprehending the situation. There have been allegations that the micro-blogging platform had purposely suspended the account (for an hour) of the erstwhile Information & Technology Minister Ravi Shankar Prasad for his continuous push for application of new Information Technology Rules, 2021 on the micro-blogging website.

However, Twitter took a different stance on this, clearly enunciating that the account of the erstwhile Minister was suspended for repeat infringement of the copyright policy of Twitter; that Twitter had received a complaint against the account-user under the Digital Millennium Copyright Act by a copyright owner that his/her copyright work has been infringed and that as per Twitter copyright infringer policy, the repeat infringer’s account would be suspended.

Additionally, Twitter also claimed that it had communicated this to the account-user before locking the account. Interestingly, Mr Ravi Shankar Prasad also claimed that the actions of Twitter were in gross violation of rule 4 (8) of the IT Intermediary Guidelines Rules 2021 as they had failed to give him a notice before denying him access to his accounts.

This is not a singular incident. Earlier this year the coveted blue badge tick, which is a sign of authenticity, was removed for a short time from the account of the Vice-President of India, Mr Venkaiah Naidu. However, Twitter maintained that as per its policy an account which stays inactive for long was liable to have its verified blue badge automatically removed; it is an automated process and not a manual one.

A similar incident recently happened when the blue tick from the official account of Union Minister Rajiv Chandrasekhar was removed.

Twitter claims this happened because the user account name was changed which as per the policy of Twitter leads to removal of the blue tick, but it was restored in some time.

However, Twitter has maintained the stance that all these incidents are just implications of its standard operating policies which are equally applicable to everyone else.

But the timing of these incidents in the background of the IT Rules fiasco does raise suspicion. Underlying these incidents are questions of larger implications.

As already discussed, social media platforms in these times of pandemic have become a useful tool of imitating fundamental rights, especially in case of free speech.

Therefore, any kind of exclusion (the suspension of account of Mr Prasad) or restrictions on the account (removal of blue badge ticks from the accounts of Mr Venkaiah Naidu and Mr Rajiv Chandrasekhar) of the user should be done more within the lines of constitutional tenets.

As free speech is one of the basic and essential characteristics of a functional democracy, any restraint, which has such severe implications such as exclusion or partial exclusion, should be on the tenets of the Constitution, not merely on the basis of corporate policies.

As per the Twitter policy on Verified User Account and blue tick policy, a blue tick would be removed if the account details are not complete (there must be a profile name and image); the user must be an active user (the user must have logged in during the last six months); for security reasons (the account must have a confirmed email address or phone number) and the account must not have had a 12-hour or 7-day lockout for violating Twitter Rules in the past six months (excluding successful appeal).

However, before suspension of an account, like in case of Mr Prasad there was no procedure similar to the natural justice concept of ‘audi alteram partem’ (it is a Latin maxim which means hear the other side).

Any action which has the implication of restraining anyone’s fundamental rights (in this case free speech), especially under the present pandemic should be governed by the tenets of reasonable restrictions.

Not giving an opportunity to the other party to put forward his case would be a clear violation of the principle of natural justice and thus a violation of Articles 14 & 21. Though social media platforms are private entities, with millions of users in India, their responsibility increases.

As already discussed, these platforms are an essential tool for forming associations and sharing thoughts; they imitate free speech platforms in current times. Therefore, their scrutiny has to be of the highest standard (or particularly of constitutional standards). Their algorithm of exclusion has to be Constitutionally trained.

The writer is Assistant Professor of Law, Dharmashastra National Law University, Jabalpur.