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CJI Chandrachud calls for innovative ways to protect free speech in advent of fake news

Chief Justice of India DY Chandrachud has said that unprecedented proliferation of disinformation and hate speech on internet posed a serious challenge to the traditional ways of understanding free speech in a democracy.

Delivering the 14th Justice VM Tarkunde Memorial Lecture on the topic ‘Upholding Civil Liberties in the Digital Age: Privacy, Surveillance and Free Speech’ on Friday, the CJI said in this ever-evolving digital era, the preservation of civil liberties has transcended the confines of mere legalities and has emerged as the very
essence of democratic ethos.

This crucial juncture demanded a delicate equilibrium between privacy, surveillance and free speech, especially in the vibrant tapestry of India, where the implications hold profound significance.

He said the preservation of individual autonomy and the sanctity of the human personality were enduring principles that transcended time and technological evolution.

While contemporary accounts often attributed the modern conception of the ‘right to privacy’ to Warren and Brandeis, history points to Thomas Cooley, who, in his Treatise on the Law of Torts, employed the phrase “the
right to be let alone.”

Cooley, in discussing personal immunity, underscored the right of an individual as one of complete immunity – a right to be alone, he added.

The CJI said that this historical context emphasised the enduring nature of the concept and its evolution over time.

Privacy, as understood through this lens, emerged as a natural right – an
inherent aspect of an individual’s control over their personality, he added.

The CJI said that privacy was a fundamental and inalienable aspect of life, rooted in the belief that certain rights were natural and inseparable from the human
personality.

With the advent of troll armies and organised disinformation campaigns on social media, there was fear of an ‘overwhelming’ barrage of speech that distorted the truth, noted the CJI.

He mentioned the outrageous claims made on internet when the country was trying to cope with the Covid-19 pandemic.

He said whether a religious site was desecrated or not; whether a speech was actually delivered; whether Covid-19 iwas caused by a virus or bacteria, these were all facts and not ideas or opinions, with many possible answers.

As the country was faced the tragic Covid-19 pandemic, the internet was rife with the most outrageous fake news and rumours. Though it was a source of comic relief in difficult times, but it also forced the people to re-think the limits of free speech on the internet.

Regarding civil liberties in the digital age, Justice Chandrachud said that while there was a classic state-activist-corporation relationship in traditional civil rights activism, nowadays, the corporations did not play the stereotypical role of being an entity, which needs to be ‘constrained’ or viewed as ‘complicit’ with the State.

He said, however, people need to be cautious with the ‘immense’ amount of trust they place on privately-owned platforms. He mentioned the United Nations recognising that social media was used as a tool for ethnic cleansing in Myanmar by the military and members of civil society.

Stating that social media platforms were relatively unregulated, unlike the State actors who were held accountable by the Constitution and the electorate CJI Chandrachud said courts worldwide were grappling with challenges posed by technological advancements, highlighting the crucial need for legal frameworks ‘prioritising’ accountability, transparency and the fundamental right to privacy.

The CJI noted that while digital liberties activism, including the protection of privacy and free speech, has gained currency at an unprecedented pace, It was still in an early period of theorizing on it.

He added that as the world moved online, the battles to uphold civil liberty must also follow suit.

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