Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.
The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.
Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.
Posts in the Series
Part I. The Foundations of the Law
1. The Parameters of Indian Discourse
2. The Backbone of the Law
3. Legislative and Other Input
Part II. Regulating the Substance of Speech
4. Creative Content and Trade
5. Reputation and Honour
6. Keeping the State Functional
7. Maintaining Law in a Plural State
8. Women’s Existence in Patriarchy
9. Sexual Abuse and Reportage
10. Privacy and Rights-Based Legislation
11. Explicit Content: Choice, Consent and Coercion
12. State Paternalism and Public Interest
Part III. The Processes of the Law
13. Keeping Track of Others’ Content
14. The Mechanics of Regulation
Part 1. The Foundations of the Law
Everything which comes after the word ‘but’ in the line ‘Free speech is essential but…’ is not always ridiculous although the extent of free speech restrictions deserve to be subject to robust debate. Fortunately, in recent years, it has become increasingly difficult to escape the clamour which has arisen in relation to free speech. There have been numerous instances when debates about books, films, and works of art have brought free speech into focus, and although it has occasionally been treated as a concern which primarily affects so-called elites, it is in part through discussions about free speech that we define what we are — and want to become — as a society.
Generally unpleasant speech tends to lie in a grey area especially when it is not anticipated to result in what could be considered to be direct and discernible harm or damage. In such cases, largely ignoring structural and historical inequities, the law tends to allow speech to be primarily negotiated by those who are involved in communication even though the power dynamics at play between them may mean that one person’s opinion is unjustifiably privileged. In fact, it could be argued that it is only particularly egregious violations of social norms which the law takes notice of.
Targeted rape threats, for example, could potentially cause irreparable and illegal harm, and the law prohibits them. Sending a message to a specific woman saying that she deserves to be raped and that you will rape her is, however, quite different from, say, launching into a rant online against ‘women’s lib’ however misogynist it may be, and the legal permissibility of the latter depends on its content.
The law does not entirely fail to take cognisance of speech that, while not being illegal, is not appropriate for all situations. Consider so-called ‘trigger warnings’ which are appended to the beginning of speech if it is likely to be upsetting or age-inappropriate, for example. Although the term is drawn from the experience of those with Post-Traumatic Stress Disorder who may be ‘triggered’ by specific content possibly into having flash-backs or anxiety attacks, similar content warnings have been used for decades in films and on television to warn viewers if the content they are about the encounter isn’t anodyne. The Digital Content Rules also envisage having warnings be appended to content in some cases.
Although there appears to have been significant concern in some quarters that content warnings could suppress free speech, all they seem to do is enable people to prepare themselves for what they will hear and, possibly, brace themselves to avoid developing an anxiety attack which would almost certainly prevent them from being able to engage with whatever it is that they are told. It could well be argued that it is the absence of content warnings and not their presence which impedes free speech and communication — content warnings facilitate access to speech except in cases where they are, often justifiably, used to restrict access to speech through age-related restrictions and the like which could, for example, be used to shield young children from graphic violence.
Grey areas aside, there are fields in which the law lays down clear red lines that cannot be legitimately crossed — for example, promoting enmity between communities on the basis of religion through hate speech is impermissible although the enforcement of the law may be far from optimal.
There is absolutely no dearth of instruments which govern not just speech but also the products in which it may be embedded such as books, films, music, and art. These instruments, which together form the body of ‘content law’, come in the form of Acts of parliament (or statutes, as they are called), subordinate legislation (such as rules and regulations made under the aegis of a statute), industry codes (such as those which deal with advertising and news broadcasting), and such documents as government-issued advisories. They regulate not just speech which is in the form of words but also communication through images, gestures, and other representations which may be visible, audible, or otherwise discernible. ‘Speech’, as far as the law is concerned, need not be linguistic.
Content regulations are also not limited to the realm of civil law. They traverse civil law and criminal law with occasional forays into other branches of law such as administrative law. They are not antagonistic to tort law which is a branch of civil law that is not encapsulated in statutes. On the contrary, speech regulations find expression in centuries' worth of case law across jurisdictions, and, as a result, someone determined enough could conceivably raise a seemingly legitimate complaint in relation to any speech or content they wished to assail through a tort law action since, at some point in history, somewhere in the common law world, it is almost certain that someone else would have complained of comparable speech with a court having recognised the validity of their grievance then. Whether a contemporary court would uphold such a claim is another matter altogether, particularly since foreign law has persuasive value in Indian courts at most, and does not bind them. The point, however, is that a claim can be made. And, very often, a claim may be made in circumstances where it isn’t at all clear that a claim should be made.
Despite the disadvantages of allowing claims relying on torts recognised in foreign jurisdictions, the practice also has its benefits, and helps Indian law to evolve and accept international practices where there are lacunae in domestic law. Take the tort of commercial misappropriation, for example. If a news agency were to pay a large amount of money to acquire specific information, and then broadcast it to its own audience, copyright law would not necessarily prevent another news organisation from picking up the report, extracting the facts from it, drafting their own report based on the facts, and then publishing a report of the same news with the facts gleaned second hand. This is because copyright does not protect facts or news alone by themselves. So, unless the second news organisation copied a report almost verbatim and thereby infringed the copyright in it, there would likely be no copyright claim to be made although the organisation extracting facts from the earlier report would undoubtedly have taken advantage of the investment made by the first organisation to 'collect' the news without necessarily paying for having done so. It is, in such cases, that it would be possible to file a claim alleging commercial misappropriation.
Statutory restrictions, too, have their drawbacks. They tend not to contain any specificity worth mentioning: no law is ever drafted in a manner which would be able to take every conceivable future application it could encounter into consideration. On the contrary, all laws are drafted with the intention of having them be able to deal with a spectrum of issues as and when they arise, which means that all of them deal in generalities. This inescapable structural aspect of the law means that statutory restrictions are invariably interpreted in a manner which is informed by legal theory, extra-legal factors such as social norms, and the personal worldview of the person interpreting them. The resulting interpretations are subjective, and it is impossible to predict how a specific law would be understood in any given set of circumstances.
What was earlier considered obscene, for example, is no longer necessarily considered problematic at all. In fact, it could be considered benign — Lady Chatterley’s Lover, for example, once the subject of scandal and legal controversy, could today easily be filed into the category of the unexceptional.
This is a sea change not so much to the letter of the law but to its interpretation and enforcement. It’s a change which lawyers and publishers have been cognisant of, and which they often struggle with in attempts to make as much content as possible available to the general public. Legal processes, too, have evolved to try to keep pace with changing socio-legal standards, to maintain ethical boundaries, and to try to mitigate risk for all the stakeholders involved. It isn’t always an easy task, and it definitely requires one to engage with more than the quick slogan about the importance of free speech easily placed on a T-shirt. Given the wide range of instruments which deal with content in India, it is extremely easy to fall foul of the law, possibly by accident.
Over the years, the judiciary has developed a number of ‘tests’ and standards which refine the interpretation of the law, and bring some degree of certainty to its application; the enhanced certainty these tests provide is not illusory, it isn’t absolute either.
Courts have tended to demonstrate a willingness to give expression to the intersection of social morality and legal statute. Although this can be deeply troubling due to a resulting lack of clarity in relation to the law, it highlights the nature of the working of the law as an interdisciplinary process conscious of life beyond the ivory tower in which statutes may be zealously guarded by academics who work behind paywalls in environs inaccessible to the general public, and by lawyers whose chambers which may be every bit as inaccessible.
Without a clear sense of the law, we cannot develop a theory of free speech which is both desirable and implementable. And, in recent times, the knowledge that we both need to honour free speech and to accept having it be curbed in a limited number of circumstances has become inescapable. The recognition and exercise of all rights is always about creating a balance between furthering one’s own interests and not unfairly treading on another’s interests, hopefully, to create a fairer society in the process. Free speech is no different. The only question is where the balance should lie and where how it should be structured.
Having the workings of the law brought into the clear light of day, it could be argued, is only a first step. Free speech is, of course, critical to the functioning of what we have now come to think of as a healthy society and to a working democracy, as the courts have recognised. In fact, highlighting its importance by taking the example of the press as far back as 1978, in the case of Maneka Gandhi v Union of India, the Supreme Court had commented:
“It is a most cherished and valued freedom in a democracy: indeed, democracy cannot survive without a free press. Democracy is based essentially on free debate and open discussion, for that is the only corrective of Governmental action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Indeed, the true measure of the health and vigour of a democracy is always to be found in its press. Look at its newspapers-do they reflect diversity of opinions and views, do they contain expression of dissent and criticism against governmental policies and actions, or do they obsequiously sing the praises of the government or lionize or deify the ruler. The newspapers are the index of the true character of the Government — whether if is democratic or authoritarian.”
In addition to talking about the law as it is — positive law, in jurisprudential terms — it is also important that we talk about the law as it should be: normative law as legal philosophers would call it. Unfortunately, for us, a great deal of our public discourse on free speech relates to normative law without the slightest reference to positive law. This means that we often come up with ideas that are independent of what legal structures exist, and are unworkable. Alternatively, we wind up wanting to duplicate existing laws in no small measure because we fail to differentiate between the substantive provisions of the law which define offences and wrongs, and enforcement failings which lead to situations where the law, although it exists on paper, has no life worth mentioning beyond the page on which it is printed.