Can’t give government pre-censorship power; they will love it: Delhi High Court on PIL by Rohingyas to stop hate speech on FB

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The Delhi High Court on Tuesday reserved its judgement on a plea filed by two Rohingya refugees seeking directions to social networking platform Facebook (now Meta) to change its algorithm and stop hateful and inflammatory content against the Rohingya community.

A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora expressed apprehension that the prayers sought in the Public Interest Litigation (PIL) would amount to granting pre-publication censorship power to the government which may be dangerous for freedom of speech.

“Please understand where you are heading with this… If you are saying that State can do censorship then you will have to give them all the power and they will love it. Do you think governments will misuse the power and curtail free speech? Hate speech must be curtailed but we are exploring whether we should give the power to the Union of India to do this censorship,” the Bench remarked.

Acting Chief Justice Manmohan said that it is a fact that there is lot of profanity on social media but the remedy suggested by the petitioner could be “excessive”.

“Look at the abuse on social media. You cannot have a decent conversation. Only question is whether the remedy that you are suggesting is appropriate or is it excessive? Today it is one community (Rohingya), tomorrow it may be other community. Everyone feels that way. That is the problem in this country today,” the Bench remarked.

It then reserved its verdict saying it will pass a detailed order.

The Court orally hinted that it may ask the petitioners to first approach the Facebook with their grievance and follow the redressal mechanism provided for in Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora
Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora
The petitioners Mohammad Hamim and Kawsar Mohammed had fled persecution in Myanmar and reached India in July 2018 and March 2022 respectively.

They sought directions to Facebook to halt the use of virality and ranking algorithms which encourage hate speech and violence against minority communities.

In their plea filed through advocate Kawalpreet Kaur, they alleged that misinformation, harmful content and posts originating in India targeting Rohingya refugees are widespread on Facebook and there is evidence to show that the platform is intentionally not acting against such posts.

In fact, its algorithms promote such content, the plea stressed.

The PIL contended that Facebook was extensively used to dehumanise the Rohingya community in Myanmar and as the 2024 general elections draw close, there is a high risk of widespread harmful content and misinformation originating on the platform which can result in violence against the community.

Hamim and Mohammed, therefore, sought directions to Meta to suspend accounts promoting hate against the Rohingya community and to openly report how it applies its content moderation policies on the content flagged by users.

Senior Advocate Colin Gonsalves appeared for two Rohingya refugees and argued that Facebook’s algorithm actively promotes hate speech and the platform is being used to foment hate against Rohingyas who have faced persecution in Myanmar.

He referred to several posts on the social media platforms and argued that there are accounts that are openly spreading fake news that Rohingyas will murder and rape people.

“There is criminal prohibition on hate speech in India but all this is going on and on on these platforms… Facebook is actively magnify and spreading the content. It is an active propaganda. Facebook is aiding and abetting and magnifying these propaganda. We want those algorithms changed,” Gonsalves said.

He further stressed that their PIL is maintainable and the Court must find a way to balance free speech and clamp down on hate speech.

Meanwhile, Senior Advocate Arvind Datar appeared for Facebook and said that the granting the prayers sought in the writ petition would set a dangerous precedent as the petitioners are seeking directions to change the algorithms of a social media intermediary.

Datar argued that Facebook is used by over a billion people and there are reports by the government which clearly state that Facebook and other social media platforms have taken significant steps to stop hate-speech.

He further said that the petitioners had neither availed the grievance redressal mechanism provided under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 nor approached the Central government with their grievance.

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