Guest Post: Social Media, Public Forums and the Freedom of Speech – II

[This is a guest post by Praharsh Johorey.]

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About eighteen months ago, I had written an essay on this blog asserting a constitutional right to free speech on social media, with a focus on Twitter. In that essay, I had contended that the freedom of speech under Article 19(1)(a) could be asserted against social media companies, and premised this on two distinct grounds:

• Twitter is imbued with the constitutional character of the State because by giving the public a platform for speech it performs what is a ‘public function’, and therefore, is constitutionally liable for overbroad censorship; but that in any event:
• Article 19(1) and (2) of the Indian Constitution do not textually require that freedom of speech can be claimed by citizens exclusively against the State, who can also assert such freedoms against private parties (like Twitter) who unconstitutionally limit such speech.

Therefore, I concluded that:

“Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.”

Much has transpired in the last eighteen months – Mr. Sanjay Hegde (a Senior Advocate in the Supreme Court of India) has filed a Writ Petition against Twitter before the Delhi High Court against the ‘illegal suspension’ of his Twitter account. More examples of Twitter’s growing censorial prowess have raised concerns about the impartiality of the Twitter platform in India, with people on both ends of the political spectrum claiming overbroad censorship on the platform – either in the form of the reduction of one’s Twitter followers (which limits one’s outreach online), or the disappearance of a user’s ‘likes’ and ‘retweets’ (which is an overt censorship of one’s ‘speech’ online).

Twitter’s conduct therefore continues to raise serious questions about what, if any, constitutional and/or legal recourse is available to someone aggrieved with their (in)ability to (I) access the Twitter platform (such as Mr. Hegde); and (II) communicate freely while on the platform (such as Mr. Kashyap). Because these questions are now pending determination before a Constitutional Court in India, it is as good a time as any to re-examine the constitutional questions involved, which can be framed as follows:

• Is Twitter, a private company, amenable to constitutional scrutiny?
• Is access to a public platform a facet of my freedom of speech?
• Once on a platform – can constitutional rights to free speech override private rules and regulations that govern speech on this platform?

Answering (i) will require a re-examination of my previously stated position (as reproduced above), and strikes at the heart of the maintainability of Mr. Hegde’s petition before the Delhi High Court. Accordingly, it is appropriate to address the question of maintainability in this essay – leaving open questions on the merit of Mr. Hegde’s petition to later posts.

It is not Mr. Hegde’s case that Article 19 is capable of being directly asserted against private individuals like Twitter. This is because the Supreme Court in P.D. Shamdasani v. Central Bank of India Ltd. declared that the rights under Article 19 cannot be asserted against private parties because ‘the language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.’ Therefore, to establish maintainability of a writ petition against a non-state party, Mr. Hegde has had to contend that Twitter is something analogous to the State. His legal basis for this (as stated in his petition here) is two-fold:

“… a Petition under Article 226 is maintainable against a private party which discharges a Public Function … by providing a means for dissemination of and access to information, social media agencies discharge a public function.”

Speaking generally, there is little doubt about proposition (b). It is unlikely to be Twitter’s case before the Delhi High Court that the services it provides do not correspond to a colloquial understanding of a ‘public function’, i.e. a function for the general public serving the public good – in this case being providing a means for the ‘dissemination of and access to information’. But this standard for imparting constitutional character, and consequently establishing maintainability, seems at first glance loose at best, and dangerously vague at worst. One could think of hundreds of Indian organisations (either supplementing or even entirely replacing the State in their respective fields) providing ostensibly ‘public’ functions: Airtel, in providing millions of Indians with the ability to telecommunicate and access the internet; Indigo Airlines, in providing access to affordable commercial flight; or even Ola Cabs, in filling significant gaps in the daily commute of millions across India. Would Mr. Hegde’s arguments equally apply to someone claiming a constitutional right to remain on Airtel’s network, despite breaching their terms of service?

In this view, it becomes necessary to examine proposition (a), i.e. the contours within which Indian constitutional courts have applied the ‘public function’ test, and assess Twitter’s amenability to this test.

Early last year, the Supreme Court in Ramakrishna Mission and Anr. v. Kago Kunya and Ors. was seized of an appeal from a judgement of the Gauhati High Court, which had declared that the ‘Ramakrishna Mission Hospital’ (a hospital in Itanagar) while not the ‘State’ within the meaning of Article 12, performed a ‘public duty’ and was consequently amenable to writ jurisdiction under Article 226.

The NGO which operated the hospital strongly resisted the broad interpretation sought to be given to the term ‘public function’, while the State of Arunachal Pradesh – which supported the judgment of the Gauhati High Court – submitted that it was only because of the unique status of the hospital as (i) a monopoly in Itanagar; (ii) a beneficiary of grants/subsidies from the State Government; (iii) a provider of the public function of healthcare, that rendered it subject to Article 226. Therefore, it was neither party’s case before the Supreme Court that any organisation providing a ‘public’ function could be subject to Article 226. The specific attributes of the hospital itself, as a beneficiary of State largesse, were therefore a crucial factor in this determination.

Here, the Court, in ascertaining the scope of the term ‘public function’ substantially relied upon G Bassi Reddy v. International Crops Research Institute, which held:

“28. A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty…ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.” (emphasis supplied)

Relying upon this precedent, the Court found as follows:

“Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.” (emphasis supplied)

Therefore, in establishing that an organisation is discharging a ‘public function’, the following factors establish the threshold that needs be proven:

• whether the function/service provided is closely related to that which is provided by the State in its sovereign capacity;
• whether the nature and extent of governmental control over the management or day to day functioning of the organisation is sufficient to render it a State authority;

It is therefore apposite to discuss only (i) in the context of Twitter, as proposition (ii) is ex facie inapplicable to private social media companies.

Mr. Hegde does not argue (i) directly – instead, he contends that “Twitter serves as a medium for citizens…to communicate their grievances and concerns with elected officials and government representatives. It serves as a source of news and information – as the “marketplace of ideas”…it therefore performs a public function and is amenable to the jurisdiction of this Court under Article 226.” This, I contend, does not meet the threshold under (i). Admittedly, Twitter is used by the Government, Government Officials and politicians of all stripes to make policy pronouncements, disburse information about government programs, campaign for elections and even engage directly with citizenry. However, this is distinct from the principle required to be proven in (i) – which is whether the primary service provided by Twitter, i.e. providing a platform for digital micro-blogging, is closely related to a sovereign function of the Indian Government.

In Balmer Laurie & Co. Ltd. v. Partha Sarathi Sen Roy, the Supreme Court differentiated between ‘governmental functions’ and ‘sovereign functions’ of the Government as follows:

“Every governmental function need not be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the State’s essential functions, which contribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, corporates and companies. Thus, considering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon, etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would not render an enterprise sovereign in nature.” (emphasis supplied)

The threshold for an organisation’s services to be analogised to a ‘sovereign’ ‘inalienable’ function is high. Twitter is certainly a social good, a modern ‘public square’, where people communicate, disseminate ideas and share information.

However, it is difficult to reasonably contend that the provision of a social media platform by a private organisation is ‘closely related’ to examples of these sovereign ‘primarily inalienable’ functions (as elucidated by the Court), i.e. legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security or grant of pardon. Allowing people another medium or forum in which to communicate and/or disseminate information is not tantamount to performing a function that is, or has ever been considered to be, a function that is exclusively within the domain or competence of the Government. It has always been free for citizenry to collect and participate in private platforms that permit communication and/or the spread of information (digital or otherwise) – whether in the form of social clubs, radio shows, telecommunication, instant text message groups or now, on social media. The Government, while certainly an enabler (in that it does not prohibit such forums from proliferating in the private sphere) and even an active participant in such platforms, is not obligated to provide and/or maintain these platforms for its citizens in the discharge of its sovereign functions, as enumerated above. Consequently, the conclusion that social media companies are not discharging a ‘sovereign’ ‘inalienable’ public function is inescapable.

It might be asked: how then did the Board for Cricket Control in India (BCCI) – which regulates the sport of cricket in India – find itself subjected to the jurisdiction of Article 226 in the Supreme Court’s decision in BCCI v. Cricket Association of Bihar and Ors. by application of the same ‘public function’ test? Surely it is not the government’s prerogative (and certainly not its sovereign function) to administer sports for its citizens either?

The Supreme Court in BCCI does not grapple with this standard. Instead, the Court lays emphasis on the nature of control exercised by the BCCI over the administration of cricket in India, assuming – without alluding to the standard discharging a ‘sovereign’ ‘inalienable’ function – that the administration of cricket is ex facie a ‘public function’. The only reasoning the Court gives for allowing the administration of cricket to be given such importance (in and of itself) is that it is a sport in which participants are ‘applauded by the entire nation, including at times by the highest dignitaries’.

What BCCI does is to reduce the standard of a ‘public function’ from being one of discharge of a ‘sovereign’ ‘inalienable’ function to a function that is seemingly of significant importance to the public. Arguably, social media, as a category of organisations, and all private sports regulators, would fit within this looser standard.

However, the reasoning in BCCI that simultaneously heightens this diluted threshold is the Court’s emphasis on BCCI’s monopoly over this function, noting – at the outset – that “the respondent-Board has complete sway over the game of cricket in this country.” The Court elaborates:

“All these activities (i.e. of the BCCI) are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket…The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act.”

The Court lays significant emphasis on the BCCI’s exclusive right to control and regulate the game – to the exclusion of all others – with the overt support of the Government of India. This, the Court makes clear, is the fundamental reason why the BCCI is amenable to writ jurisdiction:

“The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action…BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.” (emphasis supplied)

Therefore, it is insufficient to rely on BCCI to contend that discharging a function that is of importance to the public would be tantamount to discharging a ‘public function’. After BCCI, it falls on those seeking to impart constitutional character to private individuals/organisations to prove that such organisations not only discharge a function of significant public importance, but also discharge this function exclusively, with the government’s tacit (non-interference with its functioning) or overt (conferment of state subsidies, grants, permissions etc.) support.

As alluded to earlier in this essay, it can be no-one’s case that Twitter, and other social media companies, do not provide a service that is of importance to the public. Social media companies have hundreds of millions of active users per day, and have given rise to important social movements and allow seamless conversation with like-minded individuals across borders. However, does Twitter discharge this function exclusively?

The answer, quite simply, is that it does not. The core service, that of providing a digital platform for communication online, is not the exclusive reserve of Twitter. While Twitter does have features that set it apart from other similar social media companies (particularly on the ease with which one can ‘follow’ topics/people of interest), its primary ‘function’ of providing and maintaining a digital platform is also undertaken by various other private organisations, not least Facebook – which after the acquisition of Whatsapp and Instagram operates atleast three known platforms of similar fundamental utility. Mr. Hegde’s concedes this:

“Social media agencies enable individuals to participate in a free flow of information and ideas with others across the world. Twitter users can create communities to share information, ideas, personal messages etc. Unlike any other medium of communication (such as radio, television and printed publications), which are based on one-way transmission of information, platforms such as Twitter, facilitate participatory information sharing and collaboration. Users are not passive recipients, but active publishers of information.” (emphasis supplied)

 

By accepting that Twitter is only one of several social media companies that ‘enables individuals to participate in a free flow of information’, it is clear Twitter is not alone in discharging its primary functions of operating a social media platform. While social media companies as a class operate to the exclusion of the government in this space (in that the Government does not provide/operate a social media platform itself), none of the companies individually claim a monopoly of this field in India. In fact, most users of these platforms use and participate in several platforms simultaneously, with your author having been an active user of Facebook, Instagram and Twitter at a given point in time. Therefore, it is clear that one’s inability to access Twitter (having fallen foul of its rules and regulations, for e.g.) does not hinder one’s ability to access either the internet or social media platforms generally, with seamless migration between different platforms being a key facet of the modern internet age. On this ground also, Twitter’s lack of monopoly renders it well short of the standards laid out in BCCI.

Conclusion

At the end, I find myself in the somewhat unfortunate position of having used 3000 words to argue against myself. My contention in my earlier essay, i.e. that Twitter performs a ‘public function’ rendering it susceptible to writ jurisdiction, is incorrect, as Twitter neither performs an ‘inalienable’ ‘sovereign’ function, nor does it exclusively perform a function of public importance as a monopoly in its field.

Regardless, Mr. Hegde’s arguments on the maintainability of his petition are likely to cause waves in constitutional law circles irrespective of the outcome. It is well worth following.