Media Law Column: Chilling speech in the age of social media influencers

A few weeks ago, a social influencer based in Punjab was murdered in cold blood for posting content on her social media handle that was regarded as vulgar by the moral police. The killing of Kamal Kaur that sent shock waves through Punjab, compels us to confront violent moral vigilantism that threatens the foundations of free speech in our society.

That the religious leadership in Punjab not only condoned the killing but justified it with impunity as the natural consequence of ‘depraving’ the youth of Punjab, only shows how far matters have gone. 

Instagram has made stars of hundreds of ordinary people including the likes of Kamal Kaur, who peddled risqué content for a living. Society and social mores have evolved rapidly and the pace of change is only accelerated by newer and noisier means of amplification of individual expression. Vulgar and crass as Kamal Kaur’s content was, it was not seriously actionable under the law.

Vulgarity and the use of expletives do not by themselves fall foul of obscenity laws. In Samaresh Bose v. Amal Mitra, the Supreme Court drew a distinction between vulgarity and obscenity and held that the use of vulgar language does not by itself amount to obscenity. More recently, in Apoorva Arora and Anr v. State (Government of NCT of Delhi) & Anr, the Supreme Court held, in the context of a web series, that the use of profanities and vulgar expletives, cannot automatically be equated with obscenity.

These rulings of the Supreme Court, among others, came in the context of books, television programs or web series. The question is, should the standards be any different for social media? The very nature and design of social media is fundamentally different from other avenues of expression, notably print, which includes books and newspapers, or even audio-visual media such as cinema and television. 

Social media is built on a business model deliberately designed to make it addictive. It thrives on the attention economy which treats human attention as a valuable monetisable resource. Big tech companies compete for user attention using sophisticated algorithms and data analytics to capture and retain human attention and to steer choices in a direction that is likely to yield higher profits for them. 

While users imagine they are consumers of information, they are actually treated as products offered to advertisers for revenue generation. It is advertising revenue that drives algorithmic maneuvering and tech companies that are able to capture the maximum data are the most powerful and sought after. The more absorbed and immersed users are on social media, the greater the commercial gain for both social influencers and the platforms on which they post content.

It is one thing to dip into a book replete with ‘objectionable’ content now and then or to watch a film with similar content once in a while. It is quite another matter to spend hours every day following social influencers who thrive on appealing to the baser instincts of a largely male audience in a repressed society. 

Kamal Kaur’s murder that followed several death threats by self-styled social cleansers is horrifyingly Talibanesque. The double standards requiring modesty and chastity from women but condoning, if not reveling in toxic masculinity from men, are stark. Men can continue to be vulgar, violent and hateful. They can parade guns and issue rape threats on social media, all so casually. But a woman who swears, defies social norms and earns a living from a bit of sleaze must be put to death.

Having said that, the gendered hypocrisy apart, the rise of a section of social influencers - men and a few women - are setting the benchmark for a new normal.

Social media is facilitating the ease of incivility, the rampancy of the risqué and drowning out freedom of thought in a deluge of misinformation and hate speech. Social media makes it possible for these trends to attain ubiquity of a nature that numbs ordinary society into its normalisation.

That the casual use of four letter words on a public platform by no less than the President of the United States of America on a matter of global consequence attracts little response is only a small symptom of what plagues society.

Free speech is the freedom to express one’s opinions and ideas without fear of censorship. It is a deeply valued fundamental right under our Constitution and that of liberal constitutions across the world.

The pervasive nature of social media, its amplification of individual expression, the virality and sheer breadth of its reach compels us to ask: is free speech a value in itself or only a means to an end, which is to arrive at the truth or to a more evolved social or intellectual idea?  

The truth is that speech is protected even where it may yield no higher benefits – social, artistic, literary or intellectual. Speech is protected even for speech’s sake. That includes the inane and the mundane, the crass and the distasteful.

In normal circumstances, this should bother no one. But the immersive nature of social media, its obsessive and addictive tendencies raise concerns about how it is impacting the human mind, society and human civilization as a whole. Are we stepping forward as a society or falling several steps backwards? 

While the killing of Kamal Kaur is deeply chilling and the response of community leaders even more horrifying, the tragic episode compels us to ask probing questions about the nature of free speech rights in the contemporary context.

Madhavi Goradia Divan is a Senior Advocate and former Additional Solicitor General.

She is also the author of the book "Facets of Media Law".

The author acknowledges the contributions made by Nidhi Khanna, Advocate–on–Record, Supreme Court of India and Aandrita Deb, Advocate.