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The Conundrum Of Protests In The Cyberspace

Somewhere in Khartoum (capital of Sudan), you wake up and grapple with the daily dilemma of deciding between putting food in your belly or reaching school on time via transportation which is going to rob you of 100 pounds. Your heart pangs with the realization that your missing father who has been declared dead may never be found again. You pray that you may be able to return home at the end of the day without being beaten, molested, harassed, imprisoned or shot. ‘Janjaweed’- the name of Sudan’s militia that embitters your heart and petrifies your soul is something that you cannot elude; try as you may[1].

This is the appalling condition which serves as the reality of millions of Sudanese. It is, perhaps, one of the most horrifying testaments of atrocity since the Rwandan Genocide. This is where no government, no law, no police, not even the constitution can offer protection. In that kind of hysteria, in those tumultuous times, the only tool that can aid people is that of protest. This is a point where revolution is not merely a word passively staring at you through history books, it is a lifestyle.

The Sudan crisis mentioned above is a pre-eminent example of the pertinence and potency of the tool which binds us across generations, across countries and across race: The Right to Protest. This has become even more accessible in the digital age, especially since the advent of the pandemic, digital tools have come to the forefront, as protesters have used these to construct a network of resistance in order to further their interests.

These digitalized logistics have assisted in broadening the horizon of transnational activism as it unlocks the doors to variety of political identities and ideologies that integrate to bring in positive solution and changes in the world. Protests have helped us in defining and protecting the civic space and provide an impetus to the advancement of engaged and informed global citizenry. Additionally, the digitalization of freedom of expression and right to protest has helped in forming a globalized network of cyberspace citizens, who not only express their grievance but also the interests of poorly represented, excluded and marginalized communities.

For instance, the symbolic interaction of cyberspace citizens under the banner of ‘LGBTQAI+ pride flag’ has helped in connecting people across the globe to take socio-political stance for the rights of the marginalized communities.[2] What started as a small scale protest in California in 1978, over the murder of a gay[3] has now taken the shape of an unstoppable wave that would not halt until its legitimate demand of getting equal civil and Human Rights are met.

This appreciable transformation of a local protest into a worldwide movement has compelled the Sovereigns to bring the neglected and excluded transgender community into mainstream. Moreover, pandemic has served to reinforce that function of online platforms which has often been overlooked and underappreciated.

That function is none other than that of transcendence. These platforms allow the people to transcend the limits imposed by the narrow borders of physical collaboration and join hands virtually. No longer is the internet just a tool for living vicariously by following the journey of those leading more extravagant lives. The current scenario is such that, if you are not making your presence felt on the internet by getting involved with at least some initiative or the other, you are not living.

One only needs to allude to the environmental protests to gauge the extent of truth of the statement. In that sense, COVID-19 has reiterated the importance of the internet and information and communication technologies in helping organize peaceful protests and extending to people the complete freedom to exercise their right to peaceful assembly and association online.

This right has especially come to limelight owing to the efforts of climate activist, Greta Thunberg[4], who organized a digital protest by raising an army of young activists who are at the forefront of admonishing the government for its lack of care towards the environment. This kills two birds with one stone: it opens up the eyes of youngsters to the myriad of possibilities that can stem from a platform they have grown up using, and it allows people to stay home while not allowing the mistakes of the government to elude the public eye.

This example is one in a multitude of examples that show the laser like potential of the internet, with its ability to cut through even the most impenetrable surface with the help of its beam, which is strengthened by people themselves. These are the people who gather to stand in solidarity against the wrong, access invaluable, and life saving information and allow others to do the same by spreading the word of forming assemblies and associations online.

The pandemic has witnessed a rise of hashtags, which are no longer limited to showing people ‘the outfit of the day’. Rather, some of the most prominent hashtags which have inspired a multitude of social movements are on the rise, which serve to reiterate the social value and outreach of this tool. Hashtags serve to foster a spirit of participation and are used to spread information relating to a particular theme, mobilizing popular support and increase accessibility.[5]

#ProtestatHome in Poland is a case in point. The Polish parliament was on the verge on passing laws that would almost completely ban abortion in the region. These bills had previously been withdrawn in 2016 following mass protests and angry public[6]. However, it did not deter the government from considering it again, as they knew this time the pandemic would be a deterring factor in organizing massive demonstrations on the streets.

However, the wit and virtue of the protesters could not be impeded, as they carried on their mobilization and active resistance from the comfort of their own homes, by taking aid of this hashtag to widen their outreach. Similarly, #BlackLivesMatter caused a furore over the police brutalities that led to the demise of an innocent black man.[7] “Black lives matter” has undoubtedly taken the legacy of Martin Luther King Junior’s resistance to ill treatment against people of color forward, but at the same time it raised many concerns.

As the governments legitimize the use of facial recognition techniques and new surveillance technologies during protest, it brings the institution of representative and trustee democracy into witness box. During the Black lives matter movement, artificial startup company Datamir which has firehouse access to all the tweets, was found to have sold the location data of protest organisers and participants, including those of peaceful demonstrations.[8] This is not the first incidence where government officials were observed buying private data without a warrant, which clearly violates the ethical and Human rights of the citizens[9].

Moreover, data from ‘Access now’ says that there have been several detected instances, where malware based phishing attacks were made to hack social media accounts of protest organizers and disrupt their legal tool kits. In Vietnam, the digital security helpline of Access now reported social engineering attacks on targeted accounts on journalists, artists and vocal influencers[10]. In June 2019, during the protests for demand of legitimate rights, under #IamTheSudanRevolution, within a week of internet shut down- 100 people were killed, 700 were injured and at least 70 rape incidents took place,[11] this shutdown on internet closed the door of genuine reporting and prevented journalists to voice out the concerns of people to the global community.

Moreover, the United States Government Accountability Office (by Steve Renderos) report says that the facial recognition techniques is used as a growing evidence in the court to prove the case of unlawful behavior during protest and sedition charges, disproportionately harmed the communities of color, who are already over policed. This creates orientational inequalities among people. Thus, advocation of free flow of information is essential, especially during the time of crisis, as it remains the only viable step to bring realization of moral obligation of the leaders towards free dissipation of information within a reasonable time frame.

The creativity of a virtual protester is perhaps one of the biggest advantages at his disposal. People are channeling their outrage at brutal policies and laws using the aid of popular video games like animal crossing.[12] Likewise, the fifth installment of Nintendo switch is simulation social game[13] where users experience life like situations and they are able to interact with anthropomorphic animals. As is evident from the aforementioned examples, social media has the potential to rejuvenate democracy and solidify civic engagement and has helped activism to transcend the narrow cage of physical mobilization to adapt itself to the virtual society.

Thus, one of the most brilliant effects of virtual protests has been the revitalization of democracy by bringing civic participation to the forefront. In this sense, the public discourse is formed and strengthened via virtual digital public sphere. Nancy Scola, an American writer and journalist perfectly summed up the omnipotence of social media sites by writing, “Social media sites are creating new outlets for youth to organize and resist. They have millions of members world wide”. According to a survey conducted by the Center for the Digital Future at University of Southern California's Annenberg School for Communication, 81% of members of online communities use the Internet to participate in social causes, up from 75% in 2007.

As stated before, the pandemic has only served to reiterate the importance of internet as a tool for online engagement and protests. It means that this is not the first instance of using the internet as a tool for growth. One only needs to remember the Arab Spring Revolutions in Africa and the middle east to gauge the extent of momentousness of the online protests, which were pertinent even a decade ago. In those protests, activists took it upon themselves to redefine the online civic space by carefully bridging the gap between the online and offline action and creating a link that has since then.

This has come to serve as a monumental precedent in terms of forging new links between the online and offline civic space so as to allow citizens to have access to information, organize collective unions and ensure their grievances are not left unaddressed. This is especially important to ensure at a time when public services and educational structures have been shifted online, partly due to COVID-19 and partly to foster mass digitalization. The digitalization can be understood to mean mass privatization due to the monopolistic inclinations and unfavourable policies of tech giants which usher in an era of pre-mediated privatization due to their acts which impinge on the rights of individuals, especially the right to freedom of peaceful assembly and associations. [14]

Michelle Bachelet, UN High Commissioner for Human Rights effectively remarked that accusing journalists and activists with sedition for reporting on or passing remarks about the protests are basically impeding the growth and acceleration of human rights principals.[15] She also expressed her concern over the ongoing farmers protest, which has again highlighted the significance of consultation with stakeholders before formulation of any public policy.

It leads one to wonder, why does the sate go to such drastic lengths in order to ensure that the right to protest of the citizens has been infringed? In order to answer that question comprehensively, it is imperative that we carefully scrutinize both sides of the coin. It would be beneficial, at this stage, to allude to excesses and unfair measures that have been deployed by protesters which may have a bearing on the government’s willful suppression of online protests.

Firstly, one needs to understand the internet as a rendition of the Wild West, a place where there are no external sanctions or restrictions, for the most part. People are free to speak their mind; and the 21st century citizens who live amidst intolerance and new tactics of ostracization, namely, cancel culture, know better than anyone words can be explosive.

Thus, it should come as no surprise that article 19 of the constitution, which guarantees the freedom of speech and expression in India,[16] which is an integral part of protests, can also lead to sedition under Section 124 A[17], criminal conspiracy under Section 120 B[18] and has the potential to disrupt the peaceful atmosphere in the society and promote enmity between different groups based on religion and ethnicity.

The SC has held in the case of Ram Lila Maidan Incident v. Home Secretary, Union of India and bears, that a person cannot be barred from exercising his fundamental right to assembly and peaceful protest by an arbitrary action of the executive or legislature[19]. However, a somewhat different judgement was passed by Justice KK Sashidharan and Justice R. Subramaniam in the case of Govt. Of Tamil Nadu and others v. P. Ayyakannu, a division bench of Justice KK Sashidharan and Justice R. Subramaniam denied permission to carry out protests at marina beach[20].

After a writ appeal filed by the government of Tamil Nadu subsequently, against the orders of the court to carry out peaceful hunger strike at marina beach, the following principals were laid down: the prosecutors who felt entitled to make their cause publicly known often forget that:
their right to protest ends where the other person’s right to move around freely and right not to listen begins.[21]

The fundamental right of any citizen does not guarantee him the right to making his speech heard by a citizen who is not willing to do so. Likewise, a person cannot forcefully subject any other citizen to bear a witness to any procession that he does not want to be a part of or lend support to. Thus, based on these grounds, even a peaceful and non violent protest can be restricted by the law if the judges feel it necessary to do so. Thus, our right to protest and dissent in a democracy are subject to certain restrictions, and certainly do not cover within its ambit the right to obstruct the liberties of another person.

If one analyses the data presented by Access Now and the #KeepItOn coalition, it was observed in 2019 that one of the most commonly cited reasons (either explicitly or deciphered through the conduct) for internet shutdown were protests.[22] The fact was taken under cognizance by world communities and compelled the largest International Organization-United Nations to release official statements expressing their concern over threat to the essence of Declaration on Human Rights as such clamp downs on civil societies and activists seriously hampers the growth and progress of humanistic values.

Moreover, it is a direct infringement of the fundamental right to freedom of speech and expression, which not only leads to miscommunication between the protesters, but also restricts access to the vital information and supplementary resources. As has already been explained previously, the internet has served as a space for connecting and organizing activists and regulating their activities.

However, the court stated in the case of W.B. v. Subodh Gopal recognised the primacy of Article 19 of the constitution[23], as it explained that article 19 provides a guarantee for those basic rights which are recognized as the natural rights, which need to be bestowed upon and are endowed with the citizens of a free country. Thus, the free flow of ideas and dissent is essential to sustain, rejuvenate and strengthen democracy.

It is imperative that the citizens are able to freely express themselves without any fear of coercion or threat from the state. Part 3 of the constitution is fundamentally built upon three pillars without which it would collapse and be rendered useless. These three pillars are- self-governance, societal tolerance and autonomy. Going by these parameters, dissent and criticism becomes essential to curb the democratic institution from running amok. These pillars become the very basis on which the sustenance of this system prevails.

This is because the citizens themselves govern the nation through their representatives. Dissent, therefore, is inevitable. To imagine that every single citizen of the nation will be happy with the way things in the country are being handled is a utopian assumption that could lead to a dystopian nightmare.

The internet and its mammoth scope proposes a challenge to the first amendment of the US as well. The enigma lies in the fact that although the first amendment is supposed to have a moderating affect on the internet, it rarely does.[24] This is due to the inherent nature of the internet in terms of its ambit, which practically allows communication of people across geographical boundaries and with the click of a button.

This may seem conducive to foster a spirit of globalisation and cooperation, but in reality this makes people feel that they do not have to face the music if they are sitting behind the safe armour of their computer screens. Therein lies the paradox of this platform and the conundrum that the first amendment seeks to resolve but cannot. From the issue of the right to protest online, arise a plethora of other issues that demand urgent and immediate attention. The first one of these pressing issues pertains to establishing a balance between protection of those who are vulnerable and free expression and statement of dissent and opinion.

From this question of balance stem a myriad of other issues, specifically the issue of monitoring, regulating, curbing hate speeches and anonymous expression and whether the unorganised media should be restricted in any way, shape or form from spreading views that are considered undesirable or blasphemous by a specific section of people or by the public at large. It is obvious that screening and filtering should be allowed only to the extent that is necessary. But this statement, again, is a cause for bewilderment, as one poses the question, what exactly is “necessary” to be curtailed in the domain where freedom of speech is one of the main pillars of democracy?

Regardless of the conundrum that we are brought directly in conflict with pertaining to the balance between two seemingly contradictory goals, there exist mandates and treaties that serve to uphold the spirit of the protest and safeguard the rights of individuals in this matter. This is because of the realization that is slowly spreading and taking firm roots in the minds of people and higher authorities regarding the indispensability of the right to protest virtually.

Referring to the UN Special Rapporteur on the freedom of assembly and association, one finds that it legitimises the associations that are formed online by saying that associations can include even online associations[25]. It also recognised the role played by the internet in fostering a sense of civic participation and subsequently strengthening democracies. According to the Association for Progressive Communication (APC), online association refers to the act of forming any group (formal or informal) online, with or without moderators or group leaders. The UN Human Rights Council has also been in the forefront of advocating for the rights of the citizens online just as they have been protected offline.
 
Throughout the course of history, states have witnessed landscapes changing, territories and regions convulsing, managerial classes replacing the aristocracy and the economic and social structures undergoing an evolution; all due to the sheer perseverance and tenacity with which protestors throughout history have persevered and carried on, despite the seemingly insurmountable odds.

This piece of information alone should suffice in explaining the indispensable stature of protests and protesters. Fortunately for the people living in the twenty first century, the risks that were posed by the protests in the earlier times have been significantly reduced by shifting the platform on which they are conducted. No longer are people required to suffer in the scorching heat or shed blood on the streets nor are they required to incur the expenses of traveling and other resources.

The only major requirement for online protests is the will to lend support to and stand for a cause. Massive amounts of time and energy do not always need to be devoted to the cause one is supporting online. Sometimes a simple hashtag and repost or retweet is enough to advocate for the cause and lend support to it. Thus, more and more people have been able to stand up for what they believe in.

Thus, the States need to be mindful of the privacy and the rights of the protesters so that they do not get demoralised due to the undue restrictions placed upon them. The efforts on the part of various media outlets, including laymen should not be hindered or curbed, rather there should be a proper procedure established to ensure that no authority can arbitrarily impose restrictions on the footage, recordings or images so obtained.

The documentation of protests should be regulated and responsibly done so as to strengthen the ethic of transparency. For this purpose, the States could deploy trained professionals who are adept at providing valuable and imperative information, which is pure and unadulterated. These experts should be allowed to be in proximity of the protesters so as to ensure that they are accurately representing that side of the story.

Also, in order to ensure that an inculcation of the ethic of independent research is promulgated, states need to take various steps in this direction. At the outset, the journalists and media outlets must be free to report on any issue without requiring an accreditation from the government. Besides this, full and necessary measures must be taken to ensure that the safety of the protesters and media outlets is given the utmost importance. This means that there should be safeguards against the illegal or pre-emptive detention or arrest of journalists or protesters on the pretext that they may cause harm or endanger the peace of the state.

Moreover, the officers who are entrusted with the responsibility of policing the protest sites to maintain law and order need to be made aware of the actual circumstances of a real protest site while they are trained for their job. Mirroring a real life setting during training includes the role played by the media, the protesters and the spectators who are present at a protest site.

This will not only make them adept at handling these situations, but will also allow them to simulate patience and restraint that are integral elements that an officer should possess. Therefore, it is imperative that the state fosters rather than hampers this spirit of participation, collaboration and mutual cooperation that has been made possible virtually. Only then can an engaged and effective democracy be established, which stands for what it preaches: active and direct participation.

End-Notes:
  1. Nesrine Malik, If you want to help Sudan, (January 16, 2019), available at https://www.theguardian.com/commentisfree/2019/jun/16/sudan-sudanese-people-killing-rape-revolution (Last accessed March 9, 2021
  2. Drissel, David, “Rainbows of Resistance: LGBTQ Pride Parades Contesting Space in Post-Conflict Belfast”, Culture Unbound, Volume 8, issue 3, 2016: 240–262, Linköping University Electronic Press, available at http://www.cultureunbound.ep.liu.se (Last accessed March 13, 2021).
  3. Ibid.
  4. Defending peaceful assembly and association in the digital age, access now, (July 2020), available at the website: http://www.accessnow.org/whyid/.pdf.
  5. Ibid.
  6. Anne Sophie, Lockdowns Push Protest Movements online around the world, (April 27, 2020), available at https://worldcrunch.com/coronavirus/lockdowns-push-protest-movements-online-around-the-world (Last accessed March 1, 2021).
  7. Supra note 4, pp. 33-34
  8. Supra note 4, p. 33.
  9. Johana Bhuiyan, Law enforcement turns to facial recognition, (2020), available at https://odihpn.org/magazine/continuum-suffering-violence- women- girls- south- sudan -conflict/ (Last accessed March 14, 2021).
  10. Supra note 4, p. 25.
  11. Lydia Stone, A continuum of suffering: violence against women and girls in the South Sudan conflict, ( 2019), available at https://odihpn.org/magazine/continuum-suffering-violence-women-girls-south-sudan-conflict/ (Last accessed March 13, 2021).
  12. Supra note 6.
  13. Supra note 6.
  14. Barry R. Schaller, The First Amendment in the Digital Age: Protecting Free Speech, (2009), Sacred Heart University Review: Vol. 25 : Iss. 1 , available at: http://digitalcommons.sacredheart.edu/shureview/vol25/iss1/7 (Last accessed February 26, 2021).
  15. UN High Commissioner for human rights raised concern over misuse of sedition law in India, (February 27, 2021), Live Law, available at https://www.livelaw.in/news-updates/un-high-commissioner-human-rights-misuse-sedition-law-curb-free-speech-170482 (Last accessed March 13, 2021).
  16. The Constitution of India, 1959, Article 19
  17. Indian Penal Code, Section 124 A.
  18. Indian Penal Code, Section 120 B.
  19. Ramlila Maidan Incident v. Home secretary, Union of India and Others, (2012) 5 SCC 1.
  20. Writ appeal 1042 of 2018, decided on 3rd September 2018.
  21. Ibid.
  22. Supra note 4.
  23. AIR 1954 SC 92.
  24. Supra note 9.
  25. Supra note 4, p. 28.

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