Stricter punishments for online defamation is a step too far

In fact, the experience from many countries, particularly in Southeast Asia, shows how such laws rapidly become a tool for the ruling party to silence its critics. Perhaps one must consider whether criminalising is the solution what has become a serious concern for society.

***

Online mischief comes in several ways. Some with much more far reaching consequences than others. For instance, in the United States of America, private militia groups are arming up, after being fed conspiracy theories about how the far Left is taking over their country. Radical terror outfits, such as ISIS, have also long used the Internet to recruit easily susceptible sympathisers to their cause. But all these activities (the online propaganda, including recruitment and incitement) already come within the reach of criminal laws, including anti-terror laws.

Then there are instances of deliberate misinformation campaigns, most famously in the aftermath of the death of actor Sushant Singh Rajput, where online busybodies spread conspiracy theories that he was murdered, whipping up mass hysteria. Some of these can also have the effect of inciting violence — in 2017, a 28-year-old US citizen entered a pizzeria in Washington and fired shots, after being fed with rumours that the parlour was the centre of a child-sex ring run by Hillary Clinton.

While the damage that is wreaked by these instances is deadly, it is highly doubtful whether a law can address this. Remember, in the case of Rajput’s death, the TV news channels (their general credibility is irrelevant here) as well as mainstream politicians were fanning the flames. It is highly unlikely that a mere online rumour-mongerer, such as lawyer Vibhor Anand who was arrested in this connection recently, acting alone, could have whipped up the frenzy.

Finally, there are cases of online bullying and harassment, such as the Youtube channel run by Nair (and countless such). Now it is true that the content can be extremely vexatious to those targeted by it, but perhaps the answer is not to throw the kitchen sink at it.

***

First, it is a myth that laws don’t exist to tackle ‘criminal defamation’. Section 500 of the Indian Penal Code (IPC) imposes a two-year simple imprisonment for defamation. However, being a non-cognisable offence, the process involves first approaching a judicial magistrate, who may order an investigation, if warranted. This is just as well, since what many people consider defamatory does not qualify under law (Section 499 of the IPC gives a very elaborate definition of what constitutes defamation).

Second, as a society, we must rid ourselves of the notion that punishments must be necessarily exemplary. There are multiple remedies — civil (monetary damages) and criminal (Section 500), and they fit the crime. It is a different matter that the enormous delays in the Indian judicial system make many of these remedies illusory. But the answer to that cannot be introducing draconian laws, which only give police, as well as a vindictive government, excessive powers.

In fact, most western democracies put the onus on platforms such as Facebook and Twitter to censor and remove harmful content. While there are inherent shortcomings with such an approach, by criminalisation, we are only leaving it to the whims of a different institution — the police.

Freedom of speech is one of the most undervalued of freedoms, simply because one’s free speech is often another’s annoyance. Yet, the Supreme Court has held repeatedly that the two cannot be balanced, as if they were of equal weightage. Unless the danger caused by expression endangers the community interest (as opposed to a mere annoyance, or even a ‘law and order situation’, both of which have proportionate remedies), the Constitution does not permit free speech to be stifled.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.