Welcome to our newest series. DemocraShe that will articulate changing idea of freedoms across the world through the eyes and voices of women. Our first featured talk is by cyber expert Nappinai NS based in Mumbai. Through this, she focuses on the outcomes in a Suo Motu criminal writ petition (3/2015) before the Supreme Court of India, dealing with the heinous crimes of uploading of child pornography and rape and gang rape videos and imagery online. The focus of the talk is on the balancing between the construct of liberties / freedoms with democratic guarantees. It highlights the importance of the need for protecting victim rights; to ensure that they are not further victimized and for use of technology enabled tools to help balance free speech with victim rights.
The Talk by Nappinai NS
I tripped and fell yesterday in San Francisco. I just tripped and fell – on my face – something I’ve never done till now. And with every word of commiseration on the train for my battered face I felt more ashamed. I was more concerned about hiding my face. It was then that the thought stuck me – if I with my inane reason for a bruise on my face wish to hide it, am ashamed of it for no fault of mine, is it any surprise that the multitudes of domestic violence victims hide? Is it so unbelievable that they would rather hide their faces in shame than come out in the open, bold and brave? Body shaming is one of the most effective ways that perpetrators keep their victims in control.
Transpose this situation to women online. All it takes is a threat of shaming to make the boldest amongst women hide. Trolling or bullying online across jurisdictions have women being called abusive names and facing threats ranging from rapes to televised gang – rapes! If the perpetrator has some content to use against women then nudity, body-shaming, morphing and uploading suggestive pictures or revenge porn (uploading videos or photos of victims, possibly nude or filmed during sexual acts, without their consent), as it is colloquially called, are par for the course.
Stalking is a pastime for many and the nemesis of women. Would you believe that a trip to the neighborhood shop to top up your SIM card is the first step for stalking? That the price for subjecting you to persistent torture of solicitation calls is probably less than one US dollar?
What social media requires to ensure, is deployment of responsible technology to ensure the very same balance between the rights of all to exercise free speech without impacting the rights of victims.
What is the level of depravity that humans are capable of? The US case of a friend live streaming a rape on Facebook? Or the likes she gets? What could be the mental fabric of persons who not just commit gang rape; who not just video graph it but actually give directions to ensure their role in the heinous crime is not missed out, knowing fully well that they themselves are going to upload it! Is it the conversion of an innocent picture of a child uploaded online probably by a proud but ignorant parent being used on child porn sites? Is it the pervasive perversion of many and their innovation in defying laws and evading law enforcement?
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I am an idealist who entered the world of law believing that I could make a difference. I believed myself to be the angel of redemption – of freedoms; the upholder of the intrinsic values built into the robust Indian constitution. One that encompasses Liberties in its Preamble and fundamental freedoms in constitutional guarantees. It was anathema for me to even think of supporting any fetters or limitations on such freedoms. My thoughts, speech and writings reflected such unbending belief in the right to freedoms.
It is not surprising when you, as a woman have had to probably fight your way through to obtain such freedoms and to continue to enjoy them. I may have been lucky on many counts but global trends demonstrate the similarity in restraints with respect to the girl child.
Artificial intelligence must be used for isolating content that is explicit - Nappinai NS
I, in a way tripped and became part of a matter before the Indian Supreme Court, which was dealing with the heinous crimes of uploading of gang-rape videos and imagery online. As Amicus Curiae in the matter (Prajwala v. Union of India), I espoused the cause of using Artificial Intelligence for identifying and isolating such content i.e., Child pornography and rape or gang rape imagery, in a preemptive manner. For real-time uploads to be identified and isolated and screened before allowing them to be disseminated for public consumption. A process tagged as “active detection”. If it could be done for copyright violation why not for crime, was my impassioned plea. I truly believed that there was a need for protecting victim rights at the stage of uploading – for once such content goes online there is no putting the genie back in the bottle. It is out there in the digital world that does not allow you to forget. The victim is then victimized a million times over. Her fear and shame of exposure, for no fault of hers, overrides her sense of right and entitlement. She is no longer concerned with justice for herself and punishment for the callous perpetrators. She just wants to forget and definitely does not want the world to indulge even in voyeuristic sympathy.
Through my journey in this matter including, as a part of the Government Committee formed to evaluate the technological suggestion I had initiated, the fear - of losing that one precious right all of us believe in; crave; and certainly, do not wish to lose, kept rearing its head. Is any form of filtration of online content scuttling free speech? Is it indeed the slippery slope that all libertarians warn us about? Can this be misused and should the possibility of misuse stop the deployment of effective remedies?
I am an idealist who entered the world of law believing that I could make a difference. I believed myself to be the angel of redemption – of freedoms
These are but just a few doubts that arose. This led me to evaluate constructs of Liberty and democratic rights in the perspective of victims. How intrinsically intertwined are the constructs of Liberty and democracy? Are they symbiotic or conflicting? Does not democracy by its very nature imply restraints on rights? Isn’t liberty itself only a measured dispensation and not an absolute unfettered right, which could be exercised at the cost of another?
Much as libertarians such as John Perry Barlow may seek to keep the Governments of the flesh out of the world of the mind, in his reference to cyberspace, the very space that Barlow occupies, defines the limitations on his rights. Drawing from Denning and Baugh, liberty or freedom is not an exemption from all restraints. It is the most effectual application of just restraint to all members of a free society equally. The word free in freedom does not mean “extra legem” or outside the law. That would merely lead to anarchy.
To sum up, the general construct of liberty itself is one of freedom within just or reasonable bounds. This is effectively incorporated in the Indian Constitution itself wherein freedoms may be curtained through reasonable restrictions enumerated under Article 19(2) of the Indian Constitution. Viewed as such, liberty and democracy may not be construed as contradictions. They are intrinsically intertwined.
Considering that we are neither living in a world of anarchy nor encouraging the same; given the measured liberties of the civilised world, it cannot be gainsaid that just or reasonable restrictions on social media platforms are in any manner scuttling of free speech. Restraints on illegal elements uploading child pornography or rape or gang rape videos or photos, is not contradictory to a democratic construct. In fact it is merely the enforcement of democracy, where citizens seek the protection from a Nation-State for the surrender by them to the rules and regulations imposed by such State.
Does not democracy by its very nature imply restraints on rights?
The striking of this balance between exercise of our liberty online, that which we wish to remain unfettered and complete, with the rights of others – to their privacy, dignity and mindful of their rights, ensures a true and robust democracy. My conscience was thus clear in what I was working towards and the genuineness of our consensual efforts had far reaching consequences. Many a change was brought in not only into the functioning of Government authorities but also of social media platforms. What we now need; what social media requires to ensure, is deployment of responsible technology to ensure the very same balance between the rights of all to exercise free speech without impacting the rights of victims.
This talk of Ms. N. S. Nappinai was delivered at Stanford Centre for Democracy and Rule of Law, in California. Views are the author's own.
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