Freedom of speech to slaughter? No; moderation is the art of the game

By V. Ramakanth

Freedom of speech or free expression is guaranteed by almost all democratic constitutions. As the celebrated journalist Walter Cronkite argues: “There is no such thing as a little freedom. Either you are all free or you are not free.”

The First Amendment to the United States Constitution provides the foundation for freedom of speech: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, or to petition the Government for a redress of grievances.”

In other words, the ruling power cannot pass laws that prevent people from expressing the ideas and opinions that they hold dear.

Article 29 of the Russian Constitution expresses similar sentiments, but contains some additions, such as propaganda, agitation and hatred that are not allowed when it comes to issues concerning national security.

Articles 5 and 220 of the Brazilian Constitution also guarantee freedom of expression and ideas, which shall not be subject to any restrictions.

Article 11 of the French Constitution expresses similar sentiments and balances freedom of expression with restrictions on hate speech.

It is understandable that the restrictions that apply to national security and law and order are found in virtually all constitutions.

Tsars of freedom of speech

Why have the czars of free speech, with huge followings on their platforms X (formerly Twitter) and Telegram, made headlines for all the wrong reasons this past week?

Using massive fiber optic networks and technological innovations, both giants have brought the entire world together on one platform, providing unprecedented access to free speech without bias or prejudice.

Telegram’s Pavlov Durov and Space X’s Elon Musk, X find themselves embroiled in legal trouble in countries where absolute freedom of speech is guaranteed.

Telegram CEO Pavlov Durov was arrested for lack of content moderation on his platform. As a result, law enforcement agencies claim it leads to money laundering, drug trafficking and sexual exploitation of minors. And the French president clarified that his arrest has no political connotations.

While this is so, another messaging czar – X, which has been banned in Brazil by a serving judge, is also facing increasing scrutiny in the European Union.

Telegram and X were hit by bad weather in Britain and were put under surveillance by the British government for allegedly inciting riots that stoked hatred against Muslims.

Pavlov Durov Arrested

The arrest of Pavlov Durov by French police in France sent tremors through X’s headquarters. CEO Elon Musk issued a travel advisory to his staff not to travel to Brazil and shifted all his trips to what he considered unfriendly destinations.

This begs the question: is it easy to strike a balance between free speech and privacy? The issue is complex. Both are fundamental to human rights as enshrined in their respective constitutions and can cause conflict.

It also leads to legal problems and must be assessed by the court on a case-by-case basis, which is an annoying and time-consuming process in itself.

It is a universal fact that as technology advances day by day, the task of monitoring individuals becomes increasingly complex. This is especially true when the ideas shared between two individuals are subject to end-to-end encryption.

You could argue that it would be very easy if the service providers shared the metadata collected by their servers and provided surveillance tools. But then it would not only jeopardize the privacy of users (as the social media application Facebook does when processing user data), but also call into question the credibility of the messenger applications. The czars of freedom of speech, both Durov and Musk, are not willing to give an inch in providing user data or surveillance tools that would jeopardize the privacy of their users.

Confusion reigns

There is no doubt that social media applications are developed by brilliant engineers. Governments around the world have no tools to track or decipher what is shared on these platforms. The battle now is to impose restrictions on messenger applications or to gain access to encrypted messages through a backdoor. Or to introduce laws that moderate content or remove within a reasonable time frame what is disagreeable to the ruling dispensations.

Given the encryption mode, governments have no other option than to track the users and the information they share on these applications. During World War II, it was a completely different technology stream and governments around the world used powerful shortwave broadcast signals to counter propaganda.

Back to the 21st century, chances are high. Pavlov Durov writes on his Telegram channel: “I was told that I may be responsible for the illegal use of Telegram by others, because the French authorities have not received any response from Telegram.”

He further argues that “if a country is unhappy with an internet service, the common practice is to initiate legal proceedings against the service itself. Using pre-smartphone laws to sue a CEO for crimes committed by third parties on the platform is a misguided approach.”

Brazilian president attacks Musk hard

Brazilian President Luiz Inacio Lula da Silva says: “The world does not have to tolerate Elon Musk’s ‘far-right’ ideology just because he is rich.”

Building such an innovative technology is hard enough. And the rich have invested huge amounts of money to make the platforms robust and easily accessible. Furthermore, it takes not only sheer genius, but also the speed at which the messages are sent in real time.

This brings us to the question: are the tech giants responsible for third-party abuse of their platform? How do we define what is misinformation or hate speech? These are always debatable questions. Didn’t the government use the same platforms to spread its ideology? Were there restrictions imposed by the platforms? The answer is a big NO. When insinuations are made against the service providers, Durov says: “No innovator will ever build new tools if they know that they can be held personally responsible for possible misuse of tools.”

Finding Balance

Agreed! Striking a balance between privacy and security is not an easy task. However, imposing restrictions or banning such popular forms of communication is against constitutional law. Instead of resorting to extreme measures, governments should engage in a continuous dialogue with service providers to find the right balance, while also using their intelligence and adapting to preventive measures instead of shooting down messenger applications.

What is acceptable to a regulator may not be acceptable to the service providers. The day users understand that their privacy is at stake, none of them will embrace the platforms.

In a free-market enterprise, both tech giants have been blunt: “We are prepared to exit markets that are not compatible with our principles, because we are not in this for the money.” A complete ban on such applications will undermine the principles of free speech.

It’s a new world and new technology, and governments need to find alternatives to catching the perpetrators of crimes instead of shooting the messenger. Or find ways to hold the service providers accountable with reasonable penalties.

Governments alone cannot build or provide platforms that deliver global benefits. Even if they do, users will be reluctant to share their views. Free media are essential for mobilizing social movements, building communities based on shared interests, and integral to modern real-time communication. After all, free speech is not just about speaking, it is also about listening.

Finding the right balance requires ongoing collaboration with service providers, and content moderation will be a win-win for everyone in the game.

V. Ramakanth is a senior journalist and former Addl. Director General of All India Radio & Doordarshan