FACEBOOK JUDGMENT- PRIVILEGES OF COMMITTEE, 3JJ, 08.07.2021

Shubham Budhiraja[1]

There were riots occurred in North-east part of Delhi and as a result various people have lost their life and property. There were allegations regarding role of Facebook and its failure of control over the hatred content. The Parliament constituted a committee to look into this issue and as a result they summoned the Facebook India President & he appeared before it. The Legislative assembly of Delhi Govt. also constituted a committee name “Peace & harmony committee” and one of agenda of committee was to look into this issue and take proper actions so that this kind of riots not to be repeated in future. It also has an agenda to identify the culprit and find charge-sheet against them. This committee has also summon Facebook India President but he has challenged the summon before apex court citing that

(I)     The Peace & harmony committee of Legislative assembly of Delhi has no legislative competence because Law & order is matter of 3 exception list on which union govt. alone has competence.

(II)               Facebook is mere an Intermediary 

(III)     This committee has no power to summon the Facebook because committee is doing non-legislative functions & it cannot summon non-members.

(IV)         The scheme of privilege for Delhi is from GNCTD Act and is statutory and not constitutional source unlike any other state.

Brief Judgment

(I)                Facebook have active users which holds more than 1/3^rd of population of this planet. It holds extreme degree of influence and thus it cannot recuse itself from any responsibility over content on its platform. The balance between free speech & hate speech has to maintain through various safeguards and the platforms like Facebook cannot be allowed to disturb unity in diversity of India. They are absolutely accountable for their content.

(II)        The committees of legislature are of greater importance because there is active intelligent discussion among them. Their inquiry role is important to decide public interest issues and the inquiry process include power to issue summon. These summon can be issued to member as well as non-members.

(III)             There are various stages before exercising of power of punish for breach of privilege and it would be premature to decide breach of privilege at stage of summon itself. The proceedings before committee are not criminal or judicial in nature as there is no accused before committee. The person can choose not to answer for good reasons as per rules.

(IV)       The privilege available legislative assembly of Delhi & its committees are from constitutional source i.e. Article 239AA r/w GNCTD Act.

(V)             The Delhi Assembly is no different from any other state assembly except for Entry 1, 8 & 18 List-II & these entries are to be read liberally.

(VI)      The Summon issued by “Peace & Harmony” committee has an agenda of identifying the culprit & filling charge-sheet against them. This agenda r/w statement of chairman of committee in media infers that committee is dealing with law& order issue which is outside legislative competence of Delhi Legislative assembly. Hence, so far this, the summon quashed. However, remaining agenda do not attack restrictive entries because the title “peace & harmony” confer various facets of governance issues and it has to read liberally.

 

Detailed Observations

(I)                 Only a summons has been issued for appearance before the Committee. The question of any privilege power being exercised is yet far away.

(II)               Even if there was any breach of privilege recorded by the Committee, the Committee would in turn have to make a recommendation to the Assembly. The Assembly then would be entitled to consider whether it is a fit case to exercise the power of breach of privilege. In many cases, it may well be that the Assembly considers that it is not worthwhile to do so, even if the Committee was to prima facie opine so. The exercise by the Assembly is further dependent on the opinion of the Privileges Committee. Thus, there are various tiers of scrutiny before there is culmination of the exercise of power of privilege. None of those eventualities have at all arisen in the present case.

(III)      The real work is done in these committees - away from the din of the Parliament. These committees witness more vociferous reflection of the divergent view, slightly away from public gaze. It is said that there is a more reasonable and applied discussion in these committees. This is an aspect recognized all over the world qua the functioning of such committees. These committees are bodies which have the capability to undertake wide-scale consultative processes, engage in dialogue, and build consensus through intelligent deliberations. In fact, such an exercise is intrinsic to the legislative process where public policies would require detailed studies and concentration. These committees undertake deliberations and provide recommendations as precursors to legislative activities, and the effective working of committees is a prelude to the core working of the Assemblies. The committees are an extension of the legislature itself and do informed work.

(IV)       The inquisitorial role of the committee in the functioning of House is of great significance, and as recognized, the investigation of a complicated social problem prior to legislation often rests frequently on such legislative committees. This task involves the examination of witnesses and is helpful in dealing with matters of special and technical nature, wisened by insight into affairs of the workings of different aspects and the views expressed by different stakeholders. Intelligent legislative action and deliberation thereon rests on the power to investigate into questions of public importance and, thus, issuance of summons is key to this investigative exercise.

(V)    The work of the Committee could encompass several fields where organizations and individuals are expected to cooperate

(VI)     The proceedings are not criminal or judicial in nature as there is no accused before the Committee. Naturally, the Rules framed by the House under Section 33 of the GNCTD Act (which in turn draws strength from Article 239AA (7) of the Constitution) would be followed. Protection of proceedings before the Assembly or the Committee under Article 194 would include deposition of members or non-members. The option to not answer a question before the Committee cannot seriously be disputed qua certain aspects if so pleaded for good reasons, an aspect which would be examined by the Committee as per Rules

(VII)         The immense power that platforms like Facebook wield has stirred a debate not only in our country but across the world. The endeavor has been to draw a line between tackling hate speech and fake news on the one hand and suppressing legitimate speech which may make those in power uncomfortable, on the other. This delicate balance has thus far only been maintained by the intermediaries by being value-neutral. The significance of this is all the more in a democracy which itself rests on certain core values. This unprecedented degree of influence necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must sub-serve the principal objective as a valuable tool for public good upholding democratic values.

(VIII)     The sheer population of our country makes it an important destination for Facebook. India is more diverse than the whole of Europe in local culture, food, clothing, language, religion, traditions and yet have a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.          

(IX)      The role played by Facebook is, thus, more active than and not as innocuous as is often presented when dealing with third party content. Internationally, Facebook has had to recognize its role in failing to prevent division and incitement of offline violence in the context of the stated ethnic cleansing in Myanmar where a crescendo of misinformation and posts, somehow missed by Facebook employees, helped fuel the violence. The platform similarly apologized for its lack of serious response to evident signs of abuse of the platform in Sri Lanka, which again is stated to have stoked widespread violence in 2018 in the country and had to acknowledge its need to be regulated though the exact method is still unclear and a prerogative of law making authority

(X)               A recent example has been Australia’s effort to formulate a legislation that would require Facebook to pay publishers for using their news stories. The law was seen as a tool to regulate the platform’s unchecked influence over political discourse, society, and democracy. In response, Facebook blocked all news on its platform across the country with the result that there was some relaxation but ultimately a via media was found. The US has also seen heated debates arising from the 2016 Presidential elections with allegations of supposed interference by Russia allegedly facilitated by platforms like Facebook. Last year, the EU formulated legislative proposals namely the Digital Services Act and Digital Markets Act, setting out rules for platforms to follow.

(XI)         Facebook has about 2.85 billion monthly active users as of March; 2021.This is over 1/3rd of the total population of this planet. In the national context, Facebook is the most popular social media platform in India with about 270 million registered users. Such vast powers must necessarily come with responsibility. Entities like Facebook have to remain accountable to those who entrust them with such power. While Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and a means to escape state censorship, we cannot lose sight of the fact that it has simultaneously become a platform for disruptive messages, voices, and ideologies.

---

[1] Company Secretary, LLB Final Semester, BCOM(H)