Blocking Twitter users: Can politicians be sued for violating fundamental rights?

Several political figures in India are social-media savvy, including Prime Minister Narendra Modi who often uses Twitter to communicate government policies.

By Gokul Bhagabati 

New Delhi, June 20: The growing use of Twitter and other social media platforms by world leaders to connect with their audience has given public discourse such a distinct direction that new legal and constitutional conundrums have started to emerge for democracies the world over.

One such question was recently raised by a group of lawyers in the US who contended that President Donald Trump cannot always make use of a simple Twitter feature that allows users of the microblogging site to block a follower.

There argument was: Trump’s Twitter account was a public forum and banning users from viewing or engaging with his tweets based on their viewpoints suppresses free speech guaranteed by the US First Amendment.

The lawyers from Columbia University’s Knight First Amendment Institute wrote a letter to Trump on behalf of some Twitter users who have been blocked by the US President after mocking him on the platform.

“The blocking of users from your Twitter account suppresses speech in a number of ways. Users who have been blocked cannot follow you on Twitter, and they are limited in their ability to view your tweets, find your tweets using Twitter’s search function, and learn which accounts follow you. They are also limited in their ability to participate in comment threads associated with your tweets,” the letter (dated June 6, 2017) read.

The move gives birth to a new question: Can social media be treated as a public free-speech forum?

Several political figures in India are social-media savvy, including Prime Minister Narendra Modi who often uses Twitter to communicate government policies. Like First Amendment, the Indian Constitution too guarantees freedom of speech. So do public officials at home have the right to block their followers?

“In case of a similar (real/hypothetical) action by our parliamentarians/public officers who use micro-blogging sites for communicating with the public or to announce policies takes place, the same could also be potentially challenged under the Indian Constitution,” Pavan Duggal, a leading cyber law expert and privacy advocate, told IANS.

Every person has been given a fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

Though reasonable restrictions can be imposed on freedom of speech, they can be done only in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

“The factum of disagreeing with somebody else and his opinion/views is not a ground on which the fundamental right to freedom of speech and expression can be restricted,” Duggal said.

Once the parliamentarians/public officers use micro-blogging sites — if used for the purposes of communicating to the public — the same would be presumed to be public facility and the same would also be presumed to be used for exercise of governmental/sovereign functions.

“In such a case, no person could be blocked. In case, if any person is blocked, the same would be seen to be violation of a person’s fundamental right to life under Article 21 of the Constitution of India,” Duggal said.

The issue raised by Knight First Amendment Institute highlighted the fact that people have right to talk back to their leaders.

According to a USA Today report, Trump has “basically turned” his Twitter feed “into a public forum,” such as a Town Hall meeting.

“I would suspect he could retain the right to block people who are abusive by commonly accepted terms, but just to block people for being critical, you could argue they are protected by the First Amendment. … We have the right to talk back to our leaders without penalty,” Gene Policinski, Chief Operating Officer at the Newseum Institute and First Amendment Center, told USA Today.

This case also serves as a signal to other local, state and federal officials to be inclusive on Twitter, added Katie Fallow, a senior litigator at the Knight First Amendment Institute.

However, some experts believe that blocking the right to block on Twitter may be stretching the legal parameters a little too far.

“People who work for or represent any government or organisation have two different roles — one of elected representative, officers or employee and another one of private individual,” Anoop Mishra, one of the nation’s leading social media experts, told IANS.

“Being an individual, one has full rights to block anyone on Twitter or Facebook to avoid interpersonal disputes and abusive conversations of haters,” Mishra added.

Duggal believes that if a person is blocked simply for expressing different opinions or disagreements, such an action could be challenged within the writ jurisdiction of the concerned High Courts or the Supreme Court under Articles 226 or Article 32 of the Constitution, respectively.

“Merely because a Twitter handle/user is targeting a particular Minister, the same is not a ground for the government to direct to block the said user,” said Duggal, also a senior Supreme Court advocate.

But should our public officials be stripped of the power to block their followers, could they be left at the mercy of trolls?

“Twitter needs to do far more to control trolling than what it is currently doing. It needs to have strong anti-trolling policies which need to be effectively implemented,” Duggal noted, adding that trolling should be made a serious offence punishable with imprisonment.

(Gokul Bhagabati can be contacted at [email protected])

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