Facebook judgment: A peek into how courts are likely to deal with government attempts to regulate social media

Over the last decade, we have seen our political system get savvy with social media and simultaneously social media get some of its most popular content, dedicated active users, and high advertisement revenue from the political system.

But over the last couple of years, we are also seeing wariness in the political class towards the power of social media, resulting in attempts to exercise legal and administrative control over social media. The Supreme Court recently exposited on one such attempt in Ajit Mohan and Ors. v. Legislative Assembly of the National Capital Territory of Delhi and Ors.

North-East Delhi was rocked by communal violence late last February. Apart from the prosecution launched by the police, the Legislative Assembly of the National Capital Territory of Delhi constituted a “Committee on Peace and Harmony” ostensibly to find and document facts, complaints and narratives and recommend action to prevent recurrence of such incidents and to promote social harmony.

This Committee received complaints and also noted media reports that Facebook had been used as a platform for hateful messaging that incited the violence.

Separately, the Parliamentary Standing Committee on Information Technology, comprising members of both Houses of the Union Legislature, summoned the Managing Director (MD) of Facebook India seeking his views on preventing the misuse of social media. The MD duly attended and gave his views.

The Chairman of the Committee of the Delhi Legislature then made statements in the press regarding the possibility of affixing criminal responsibility on Facebook and then summoned the MD of Facebook India and later both Facebook India, and Facebook Inc, the global entity of Facebook.

Facebook India, Facebook Inc, and the MD of Facebook India challenged the summonses by way of a writ petition in the Supreme Court saying that these summonses weren’t a mere unsolicited 'friend request', but rather a misuse of legislative privilege, and that legislative privilege at any rate could not be used to curtail free speech.

The political angle in the matter was unmissable, with Facebook contending that it was being made a scapegoat in the tussle between the ruling parties of the Delhi and the Union governments. The Court also did not miss the divergence in the stands taken by the Delhi government and the Union government on some aspects, and ascribed the same to the political differences between them.

The Court held that the legislature had the power to compel attendance of members and non-members alike and initiate proceedings for breach of privilege where necessary, though with the caveat that, in doing so, the legislature could not exceed its legislative competence. The issues of clash of parliamentary privilege and fundamental rights were deemed to be premature. Anyway, the Court noted, those questions were pending adjudication by a larger bench of the Supreme Court since 2005.

Apart from this, the judgment holds that the role of the legislative assembly goes beyond merely legislating and that it has many other essential functions.

In the last few years, there have been laments from many expert commentators that Parliament and the legislatures do not enjoy the centrality in public discourse that they once did. It remains to be seen whether Parliament and the legislatures will regain their importance in public discourse with the Court's recognition that their role extends beyond merely legislating and with the acknowledgment of the role of parliamentary inquiries in initiating truth finding exercises and being drivers of debate on important questions of the day. Mirroring this, it would also mean that public discourse finds a new platform in these parliamentary inquiries.

It is not that the parliamentary committees have been inactive in any way. While there may be room for improvement in the mode of their functioning, the number of reports that they bring out and the wide diversity of the issues covered in these reports is available for all to see on the Parliament website. These reports are often drawn up after extensive interviews of experts and bureaucrats in charge of the government action on the relevant issue. But these reports do not seem to catch public imagination in the same way as say, pronouncements of the Supreme Court, or even off-handed comments of political leaders which find great play in the media and often face great criticism and ridicule on social media.

The judgment also gives a peek, through statements recognizing the power of social media and the possibility of social media being used to cause harm, into the likely treatment that will be meted out by the courts in the various challenges and issues that are likely to arise from government attempts to regulate social media and affix responsibility on the social media companies.

There has also been comment on the prolix nature of legal argumentation, and consequently the lengthy judgments that result from them. While the postscript to the judgment spells out these problems expressly, the whole body of the judgment makes for interesting reading, especially for those in the know, for its subtle and not so subtle jibes at the vagaries of adversarial litigation.

The author is an advocate practicing at the Supreme Court of India.