Jurisdiction – USA, India
Chilling effect is a phenomenon whereby legitimate exercise of rights – commonly free speech – is discouraged due to the threat of legal action. The Effect leads to indirect censorship by restricting freedom of expression even before the legality of the content has been determined.
For instance, user ‘A’ puts up the following post on Facebook – “All people of [a particular religion] are thieves and should be imprisoned.” Person ‘B’ is offended by this and sends a takedown notice to Facebook alleging that the post constitutes hate speech. Facebook removes the post because it does not want to risk legal action from person ‘B’. In this process, legality of the content i.e. whether the post actually constitutes hate speech, is determined by a private party (Facebook) and not by a court. Free speech is, therefore, “chilled” because content is removed due to the possibility of it being illegal without there being a judicial determination about the same.
Chilling Effect and Free Speech
The idea of how unwarranted restrictions “chill” freedom of speech was first observed by Justice Frankfurter in his concurring opinion in Weiman v. Updegraff. The issue in this case was whether the State had the power to obtain oaths from teachers that they are not a part of any subversive or Communist-front. The court held that joining such organizations was permitted under the rights of free speech and free inquiry. An oath would “chill that free play of the spirit which all teachers ought especially to cultivate and practice.”
In Walker v. City of Birmingham, a complaint was filed against the petitioners for participating in street parades without a permit which was required under an ordinance. The same was challenged on several grounds including that it restrained free speech. The court noted that it had a duty to protect individuals from the “chilling effect” upon their right to free speech guaranteed by the First Amendment.
In multiple cases, the Supreme Court of India has recognized the negative impact that the chilling effect has on the free speech and expression. In Rajagopal v. State of Tamil Nadu, the court relied on the American case of New York Times v. Sullivan to recognize that a chilling effect can be induced by a threat of legal action. The case concerned the freedom of the press to criticize public officials. Similarly, the Delhi noted in Ram Jethmalani v. Subramaniam Swamy – “The aim of the law was to see that there was no chilling effect. If a person is under a fear of being sued, he may not express himself freely on public issues and this would chill the public debate.”
In Khushboo v. Kanniamal, the appellant had expressed her personal opinion on pre-marital sex in an interview. Cases were filed against her under various sections of the Indian Penal Code, 1860. The court held that the complainants had the opportunity to express their views on public platforms. The law could not be used in a manner that had a chilling effect on freedom of speech and expression.
Finally, in Shreya Singhal v. Union of India, the Supreme Court took cognizance of the chilling effect created by the section 66A of the Information Technology Act, 2000. Section 66A punished people who electronically sent information that was offensive, false or caused annoyance or inconvenience to the recipient. The court struck down this section for its overbreadth and because it would have a chilling effect on protected speech.
Chilling Effect due to Intermediaries
An intermediary is a conduit that receives, stores or transmits data from one entity and makes it accessible to others. Examples of intermediaries are internet service providers (BSNL, Airtel), search engines (Google, Bing), online payment sites (Paypal, Paytm), online-market places (Flipkart, Amazon) and cyber cafes. Websites that host user-generated content like Facebook and YouTube are also classified as intermediaries.
Intermediary websites do not exercise editorial control over the content being shared on their platforms. What this means is that a website such as Facebook does not check every photos, video, comment and post that is uploaded on the website. It is practically impossible for intermediary websites to constantly check content that is being uploaded – for instance, over 400 hours of video is uploaded on YouTube every minute!
When something potentially unlawful is uploaded on these websites (e.g. hate speech, defamatory content, content infringing copyright), it becomes their responsibility to remove the said content after they receive knowledge of the same. Such knowledge is usually provided by users sending takedown requests or complaints.
Upon receiving this knowledge, intermediary websites must determine whether the content is actually unlawful. This leads to a chilling effect because websites prefer to err on the side of caution and remove content if there is a possibility of it being unlawful. They do this to avoid the risk of litigation. As a result, even content that is perfectly legal is likely to be removed thereby chilling free speech.
Post Shreya Singhal
In Shreya Singhal, the court recognized the chilling effect caused by intermediaries acting as arbiters of the content hosted on their websites. The court nullified this by holding that intermediary websites can only be provided with knowledge through a court order. A person wanting content to be removed has to approach a court and obtain an order declaring that the content is unlawful.
The burden of determining the legality of the content has thus been shifted from private party-intermediaries to the courts. This ensures that free speech is not unjustifiably curbed on intermediary websites.
I have co-authored a paper with Dr. Gargi Chakrabarti titled “Intermediary Liability and Hate Speech” published by the University of Washington which discusses the chilling effect in detail. It can be accessed here.
Featured image from here.
 A notice sent to the publisher alleging that the content published is illegal and hence should be removed.
 For example, see section 2(w) of the Information Technology Act, 2000.
 See paragraph 117 of the judgment.