Social Media, Violence and the Law: ’Objectionable Material’ and the Changing Countours of Hate Speech Regulation in India

Abstract

With the advent of the internet and increasing circulation of hate speech, and material that has been linked to public order disturbances, there has been a shift in the legal discourse around hate speech. What has emerged, especially post the striking down of section 66A of the Information Technology Act, are categories such as ‘objectionable’, ‘provocative’ content. The focus has shifted from the content itself, what it says, and the intention of the author, to being able to pre-empt the circulation of such material. Law is increasingly invoked to prevent speech (through prior restraint) rather than post facto investigation and prosecutions. This in turn has given rise to a range of institutional mechanisms such as monitoring labs that are now part of policing practice. Additionally, civil society organizations are now collaborating with police to help trigger mechanisms to take content off internet platforms. Increasingly it is through keywords and algorithmic searches that the category of hate speech has been defined rather than traditional legal doctrine. In the words of Lawrence Lessig, code plays the role of law, and the architecture of the internet becomes policy. This paper will examine the issues outlined above relying heavily on a series of interviews with lawyers, policy analysts, journalists, academics, civil society activists, and police personnel conducted in Delhi, Bengaluru, Mumbai and Pune.