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Facebook vs govt: Why we should let judges take on free speech

Fear of censorship is probably the gut reaction of most right thinking people to the ongoing judicial case against 21 websites including Facebook, Google and Yahoo.

The Delhi High Court demanded progress in advance of a hearing, scheduled for today, 16 February, in the case brought by Vinay Rai alleging the sites promoted "enmity between classes and causing prejudice to national integration".

We should be nervous about potential censorship in advance, however unfeasible technologically, of all content going on these sites. But we should also let the process play out in full.

Too often, particularly in the US, you hear talk of "judicial activism", i.e. judges making decisions in particular cases that one party really doesn't like. When California courts have upheld that banning gay marriage is unconstitutional, the right-wing and religious communities allege "activism". What they're really saying is a polite version of, "You've overstepped the law". And those in the US fighting the influence of money in politics, alleged activism in the Citizens United case that opened the flood gates.

The attacks on websites for the content created by "the masses" is a precedent that makes India look more like China. The only difference is the Indian approach might be completely reinforced by the courts. AP

It goes both ways.

Some countries have a penchant for arresting judges as a pretty effective way of preventing them investigating politicians. That should only be necessary if they are themselves corrupt, and should only be removable by other judges.

If you have an effective judicial system — both, attached yet independent, within an effective constitution — then more times than not, they are quite good at ruling on cases within the context of laws as they exist. And if they make mistakes, that's what appeals are for.

The attacks on websites for the content created by "the masses" is a precedent that makes India look more like China. The only difference is the Indian approach might be completely reinforced by the courts.

Requests for Delhi Police and the Centre to join the case seems to be broadening out the case beyond its initial scope, and that could be drifting into "activist" territory. The counsel for both may argue the issue concerned millions in a "great country" like India.

But as the counsel for Facebook pointed out: "We have not seen a case where Centre has come rushing to the court to raise submissions in a private complaint case like this. We object to this."

The Supreme Court will have to eventually decide the balance of protecting the abstract "national integration" and "enmity between the classes" and the potential limitations on freedoms of expression, the right to equality and others.

Individual freedoms are embodied and represented in most online media now.

Expression comes out through Facebook or Youtube or blog postings. Protests online allow individuals to assert their religious views and fight against exploitation. All rights are inter-related. You can't assert your freedom of religion without the freedom to speak. Restricting the content of websites could, in fact, prevent national integration because everyone would be prevented from freely expressing opposing views, whereby you achieve dialogue and build up peaceful civil society. Everything has to be balanced.

Judges must test the laws for their capacity to balance, and their interpretations must be tested in turn. We have to let judges challenge free speech's protections, to ensure they are effective.

It is obvious from the High Court so far that there is a certain presumption of guilt being applied to the websites. They are being blamed, as hosts and facilitators, of all the views and opinions considered contrary to either Vinay Rai, or the courts, or politicians, or "integration". We must let this play out and hope that a higher court - a more wise court - will show the judicial activism necessary to balance the rights of the constitution that apply to all Indian citizens.

If, however, unrestricted censorship of the digital world is re-enforced by the Supreme Court, then it will fall to those very citizens to demand their government redress the balance in favour of those original free rights. Courts can, generally, only judge based on the laws on the books. We may yet need to change the books.

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