Digital Hate Speech
Hritika Jannawar and Abhiniti Vats, Nyayshastram
The Internet has been the greatest invention of humankind, which had led to connecting people all over the world. This has also led to numerous opportunities and benefits; however, the advancement in cyberspace has led to unprecedented hate speech engagements. The greatest democracies in the world guarantee freedom of expression to their citizens but with the advent of the new technology which also has some ill consequences, the time has come to test the boundaries of free speech and hate speech in the new light.
Free Speech Vs. Hate Speech
Free speech is one of the constitutional guarantees of all liberal democracies- which means individuals are allowed to think, express opinion without censorship or restraint, but when the right is guaranteed, some responsibilities come attached to it when the speech becomes hurtful and cynical or threatening to a group or individual. This becomes hate speech. Though reasonably, restriction on free speech has to be imposed, as the absence of it causes break down of society creating enmity and insecurity, rather than growth. Restriction on free speech has to be viewed as a limitation on one’s human rights to uphold community rights. Hence, nations should not tolerate hate speech under the guise of free speech.
Definition of Hate Speech
There is no uniform international legal definition of hate speech, and there is no standardization in the characterization of what can be ‘hateful’. Not all hate speech includes using slurs and insults, a few people/groups opt way to use more subtle language or coded one to escape the legal repercussions of its content, which a casual observer would not be able to identify as hate speech, without the context.
This results in the varied definitions of hate speech between the nations and in which some are narrower while some are broader. Moreover, there is not only the problem of identifying it but also of defining it, every nation has its own perspective. Some adhere to an all-encompassing view to regulate every speech that is detrimental to dignity and integrity of individuals or group while some only target speech that incites violence, for instance, United Nation (strategy and plan of action against hate speech, May 2019) stated,
"hate speech is understood as any kind of communication in speech, writing behavior, that attacks or uses pejorative or discriminatory language regarding a person or a group on the basis who they are, in other words, based on their religion, ethnicity, nationality, race, color, descent, gender or any other identifying factor."
This kind of speech incites hatred among the people, which if further fueled takes up a violent turn as seen in the case of ethnic cleansing in Myanmar. To the other end of the spectrum is the narrower definition which classifies ‘hate speech as ‘dangerous speech’ as that of the European Union’s framework. It specifies hate speech as public incitement to violence or hatred, which is directed against a specific group of persons or a member of such a group defined on the basis of race, [color], descent, religion, or belief. Internationally, countries like the United States of America, United Kingdom, Denmark, Germany, Australia, New Zealand. have the legislations explicitly to ban hate speech, but what remains the topic of debate in the modern time is how to enforce these laws and identify the perpetrators in this era of the digital age, where the concept of online hate speech has taken root and growing widely day by day.
Online Hate Speech: The Concept and its impact
Different targets, instigators, motives, and tactics are involved in online hate speech, sometimes the perpetrators know their victim, and in some instances, they target particular individuals whom they do not know just for trolling or attention-seeking. The social media platforms like YouTube, Instagram, Twitter have become a source of spread of misinformation, fake news, and provides virtual room for people with similar tendencies, i.e. practicing hate culture to propagate their agenda. Recent studies have shown that online abuse, especially on social media, has been faced by a significant number of women, which is mostly gender and sex-motivated.
It is little known about the individuals that spread misogynistic and racist speech, but the new studies showcase that most such user accounts tend to be new and very active and express lower emotional awareness and high anger and immoderation, which differ from personality traits of the general Twitter user population.  The number of users producing hate speech tends to have fewer followers, but they have densely connected retweet networks hence widens their reach of hate speech and spreads faster in mainstream media. These groups of people or people are difficult to govern because 1. decentralized structure 2. Quickly navigate and migrate across websites, and use coded language to flout the regulations, so even if they are suspended from one platform, they move to another with lesser restrictions on them and regroup. These problems of the hate culture community have emerged because of non-uniformity in regulations across the websites also.
Online hate often incites offline hate, one of the studies showcases that the hate crime against refugees increased disproportionately in areas with higher usage of Facebook when anti-refugee sentiments were at their peak online. Moreover, terrorist organizations also find the platform to spread their propaganda. The websites have developed various strategies to deal with hate speech like content moderation, the system of automatic hate speech detection, but it is less helpful in the local context. In 2015, actions on hate speech against Muslims in Myanmar were taken quite later, resulting in the huge spreading of such hateful content earlier itself. Furthermore, the impact of hate speech on society is detrimental as it may cause fear to the historically marginalized or disadvantaged populations; students who are cyberbullied may fear intimidation offline. Other works suggest that people who were exposed to hate speech initially tend to withdraw from public debate both on- and offline, therefore harming free speech and civic engagement. To further dive into this topic, the author takes note of the Indian Scenario.
Indian Legal Regime
It may not be hyperbole to say that for a true democracy, ‘liberty and expression of thought’ is of utmost importance, as signified in the Shreya Singhal case. Article 19(1) guarantees freedom of speech and expression. However, how far this free speech would be a good speech, there is a breaking point to that free speech, beyond which it is harmful, hateful, disturbing, and is the cause of violence, communal insecurity, and psychological distress to individuals. As it is primarily considered, that one’s liberty mustn’t offend another’s. Patanjali Shastri J. observed in A.K Gopalan’s case,
“man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. 
For this 19(1) is subject to the conditions under 19(2), which provides the state with authority to impose restriction 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.
In India term ‘hate speech’ has never been defined by any law. The SC in Shreya Singhal’s case had differentiated between three forms of speech, discussion, advocacy, and incitement, and stated that the 'incitement ‘is the key to determine the constitutionality of a restriction on free speech. Further Supreme Court discussed the issue of hate speech in Pravasi Bhalai Sanghaton v. Union of India, where the Petitioners prayed for stringent laws to curb hate speech, but the Court observed, the implementation of the existing laws can solve the problem of hate speech. After the deeper consideration of the said issue, in India for the first time, the term 'hate speech’ was defined by the 267th report of the law commission of India as follows,
“an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.”
Apart from this sec 153 A, 153 B, 295 A, and 505 of IPC, provides a base for the consideration to the limit of free speech in India in case of hate speech, but with the uncertain application of them on social media. All of these sections went under the scrutiny of constitutional validity at one point in time, but they passed as ‘public order’ in Article 19(2) has been widely interpreted as ‘in the interest of Public order’ by the Supreme Court.
But what again remains outside the purview of these sections is hate speech harassing individuals on the basis of their gender and sexual orientation, which is evident in all platforms of social media; the above provisions predominantly deal with inciting hate speech amongst religious, language, and caste groups only. One of the recent examples has been being that of a YouTuber Shubham Mishra who hurled abuses and rape threats towards comedian Agrima Joshua for some comment about a government’s proposed statue of Chhatrapati Shivaji Maharaj which wounded the sentiments of a few, he has been arrested and charged u/s 294 (obscenity), 354 (A), 509 (intending to insult the modesty of women), but is it really the case that all the rape threats present have been taken cognizance on social media? Women do face harassment on social media daily, most women having opinions are targeted, this argument may loosen its ground when we look at the fact that Indian Cricket Player M.S Dhoni’s Daughter was threatened with rape, on accord of his poor performance. This shows how patriarchy has seeped deep into Indian Society which has been further accelerated with the advent of technology.
Furthermore, as social media spreads the news within seconds it is difficult to regulate the online posts which have deadly repercussions. For instance, in 2013, where a fake video was uploaded by BJP MLA from Sardhan constituency on his Facebook page incited communal violence in Muzaffarnagar, this video was shared more than 500 times before it could be taken down but the damage was already done, women were raped, people died and tens of thousands were displaced. Also, in 2012, fake images and videos of Tibetans were spread and circulated with the claim that portrayed the mistreatment of the Rohingyas in Myanmar led to many riots, across certain cities, all over India. The series of incidents discussed here showcases the need for monitoring bodies regulating all the social media platforms, unvarying of their policies and making it consistent with domestic laws, as in the incidents discussed above if the authorities and social networking sites would have acted in time violence could have been avoided.
In this regard, stringent action has been taken in Germany with the enactment of NetzDG law, which mandates social networking sites to remove content that has been recognized as unlawful within 24hrs, on its failure would be liable to hefty fines up to 50 million euros.
But in India, the SC took a step back, in the process of safeguarding people from online hate culture as it pronounced in Shreya Singhal's case sec 66-A of IT Act 2000 to be unconstitutional, the justification provided by Fali Nariman J. was that sec 66A violates the guarantees provided under Article 19 of Constitution, and provision was vague using terms like ‘annoying’, ‘inconvenient’ and ‘grossly offensive’ which are difficult to define in law enforcement.
The only law abrogating online hate speech was struck down, after which there were suggestions, recommendations by Viswanathan committee report regarding the amendment, insertions of the section in this regard like 153 C (Prohibiting incitement to hatred) and section 505 A (causing fear alarm, or provocation of violence in certain cases). Now it is up to Legislature to catalyze the process.
As stated by B.S Chauhan J.
“the problem is not the lack of law but in its execution, the executive and civil society both have to show efforts at par.”
Although at this instance it may seem the execution is an issue, laws and defined scope of hate speech is also lacking, it’s the need of the hour for it to be legislated in consonance with an idea to create safe cyberspace.
Online hate speech is not only a virtual issue but also an issue in the physical world, as hate speech has been predominantly spreading online, its consequences are also reflected in the offline world. Hate has been present on the internet since its inception, when the law targets hate speech, whether on the internet or otherwise, the question raised is 'must the achievement of the civil society be at the expense of the free society' But for the sake of the survival of peaceful society restrictions are welcome until the moral appeal of the citizens, for disengagement with such hate speech is established, which is altogether a utopian phenomenon.
The social media platforms have developed an automated and semi-automated system that utilizes better algorithmic frameworks to detect hate speech and also a user reporting system effectively. However evolving extremist, racist, and misogynistic ecosystems across the infosphere still pose a threat to society as these systems are not wholly defect-free. It is often difficult to draw a line between legitimate content and others that violate rules; moreover, it is difficult for companies to deal with the non- English accounts, thus bringing us into thinking as to how such policies, laws are to be drafted and what level of uniformity is to be put forth.
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