Exclusive | Justice BN Srikrishna: India Needs an Independent Body to Curb Social-Media Misinformation

I think the rules have been tightened under the now amended IT [Information Technology] Act. So, misinformation and related issues can be adequately dealt with under the law as it stands today.

The only danger, however, is that if you have very strict laws intended to tackle misinformation, they may also affect legitimate information. Censorship and monitoring can also come into the picture. Ultimately, it depends on the intention of the government and the level of trust people have in it. If you place a very powerful weapon in someone’s hands and you do not trust that person, then you are in danger. If you trust the person, then you are safe.

One defining feature of social-media platforms is how quickly they amplify content. For instance, many health influencers now make unverified claims such as certain drinks curing kidney problems.

When I was the Chief Justice in Kerala, one fellow was claiming he had a cure for cancer. The police caught hold of him and brought him to me. I asked him, ‘Where did you get your medical degree?’ He said, ‘No, I don’t have any medical degree.’ So, I said, ‘Then tell me how did you find this cure?' 

He replied that he had given it to 100 people and kept bluffing. Ultimately, I told him, ‘If you continue doing this, I will send you to jail. Stop all this nonsense.’

There should be the ability to check things post-fact. Otherwise, how can you determine beforehand, pre-facto, whether something is good or bad?

Suppose you are a democratic person. You say that what happened in Manipur is wrong. What is happening in Iran is wrong. You are entitled to express this, right?

But suppose someone says, ‘No, I don’t want you to criticise the bombing of Iran because America is a friendly country. Or Israel is a friendly country.' Is that acceptable? Big Tech or not, it doesn’t make any difference. From my point of view as a citizen, is it open to the government to say that you should think only in one direction and not in another?

Too much control over the media is insulting. That is exactly what used to happen in communist countries. It is happening even now, remember the times of [Soviet dictator] Joseph Stalin and [Russian revolutionary Vladimir] Lenin, and even today under [Russian President Vladimir] Putin’s rule. Look also at what is happening in China. In China, you simply cannot transmit or share knowledge like this.

Now everybody wants pre-censorship. If you want to give a speech, someone first decides whether it should be allowed or not. Earlier, every citizen was free to say what he wanted. That is the essence of freedom of speech. But if you transgress the law, through contempt of court, incitement to violence, or something similar, that is when action should be taken. I am against pre-censorship of any kind.

You cannot tell someone not to say anything at all. What you can say is that if you spread misleading information, you will be answerable for it in a court of law.

Even WhatsApp says it cannot identify the people behind misinformation. So, the question of identifying the initial originator is going to be a big problem. That is really a technical problem. The law cannot simply say that since the platform exists, it will hold the platform responsible and then ignore the rule of safe harbour.

That is not really fair to the platforms either. Let us say you have a public garden. Now, if you know that the garden is being used by smugglers, drug sellers or criminals, then you can shut access to the garden. But you cannot say that nobody will be allowed unless they show their Aadhaar card.

However, that is what the government wants to do. Unless you have some kind of prima facie evidence that makes it is necessary to impose pre-censorship, you should not do it.

I gave you the example of the garden. Unless the owner of the garden knows that something illegal is going to happen, how do you hold him responsible? Just because he owns the garden? If you know that something illegal is going to be done, then you shut everybody out. These matters should be left in the hands of somebody who is not connected with the government.

Yes. For example, in the data-privacy law, we recommended that there should be an independent body to examine these issues. It may include representatives from both sides, but it should ultimately be headed by an independent person who is neither from the government nor from Big Tech. Because right now what is happening is that Big Tech companies look at Indians purely as a business model. They look only at the balance sheet.

When I was working on the data-privacy framework, one of the platforms objected to the framework. I told them clearly: this is the law I want. If you do not like it, then do not do business here. You are not here because I invited you. You are here because this is a large market and it serves your business interests.

Absolutely. What do you think the present law is? It is the result of lobbying by security agencies and Big Tech. Otherwise, compare it with what was recommended earlier. If you go back to 2018, when the first report was submitted along with the draft Bill, compare that with the law today. Everything has been diluted.

One principle I have always followed is that all laws, all inventions and all discoveries are ultimately meant for the benefit of human beings. Laws, for example, are intended for the benefit of society and the individuals within that society. They are not meant for the babus and they are not meant for Big Tech.

Big Tech exists to serve society and governments are elected to serve society. But now the situation is being turned upside down. First, the law is framed to protect Big Tech and to give power to the babus, and only after that the individual is expected to function within that framework. That completely inverts the purpose of the system.