Author: Kshiraj R, RV University, Bangalore
To the Point
In the ever-buzzing world of digital discourse, the greatest threat to your free speech may not be a fiery troll or an angry uncle it’s an algorithm with commitment issues. Shadow banning is the practice where your content isn’t deleted or flagged, but simply made invisible to the masses. Like whispering into a void or screaming into a pillow, your posts exist but are algorithmically hidden from timelines, search results, and sometimes even your own followers. This sneaky form of suppression poses serious questions under Article 19(1)(a) of the Indian Constitution, which promises every citizen the freedom of speech and expression. But how free is speech when no one can hear it?
Digital platforms like Instagram, and Facebook which are privately owned, but their role is unmistakably public. They’ve replaced tea stalls, campuses, and political rallies as the places where democratic dialogue flourishes or fizzles. While our Constitution binds only the “State,” there’s an emerging view that these platforms, by performing functions of immense public consequence, may be constitutionally accountable under Article 12 as entities discharging public functions.
Use of Legal Jargon
Shadow banning triggers the intersection of several important legal doctrines. First, we encounter “algorithmic opacity,” a fancy way of saying, “no one knows what the robot is thinking.” Content is suppressed based on inputs and weights that are not publicly disclosed, raising red flags for both transparency and due process. This lack of notice violates the principle of audi alteram partem. It also gives rise to what constitutional lawyers call a chilling effect, wherein individuals pre-emptively silence themselves to avoid unseen algorithmic penalties.
Then comes the three-step check laid down in Justice K.S. Puttaswamy (Retd.) v. Union of India. The test asks whether the restriction is sanctioned by law, necessary for a legitimate aim, and proportionate to the harm sought to be prevented. Shadow banning fails this test because there is neither legal sanction nor an open mechanism to evaluate the necessity or proportionality of the suppression.
Finally, we revisit the “public function” doctrine derived from Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. If an entity carries out functions akin to the government like regulating public discourse it can be treated as ‘State’ under Article 12. When Facebook decides who gets to speak and who doesn’t, it’s arguably acting in a quasi-sovereign capacity. Shouldn’t that come with constitutional responsibility?
The Proof
Users across the globe, and increasingly in India, have reported instances where their posts ranging from political satire to critiques of public policy receive zero engagement without explanation. It’s like throwing a party and watching no one show up, not even your mom.
While platforms claim it’s all part of algorithmic fine-tuning, the absence of transparency fuels the belief that these are deliberate attempts to stifle certain voices.
India’s Information Rules, 2021, emphasize platform accountability, but do not touch upon algorithmic content suppression. These rules talk about takedowns and traceability but stay suspiciously silent on shadow banning. And therein lies the danger: if something isn’t even acknowledged by law, how do you protect yourself from it?
Abstract
This article delves into the legally murky world of shadow banning, a form of silent content suppression by private social media platforms. While the Indian Constitution protects freedom of speech under Article 19(1)(a), this guarantee rings hollow when digital platforms use hidden algorithms to mute dissent or opinion without notification or explanation. Given their role in shaping public discourse, there is an urgent need to examine whether these platforms can be held to constitutional standards using the “public function” doctrine under Article 12. Through case law, doctrinal analysis, and a healthy pinch of sarcasm, this article argues for legal reform to ensure that free speech isn’t ghosted by the algorithm.
Case Laws
Shreya Singhal v. Union of India, this case famously struck down Section 66A of the IT Act for being vague and overly broad, which made it prone to misuse and arbitrary enforcement. Shadow banning, with its undefined boundaries and unaccountable application, echoes similar concerns.
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, this judgment broadened the definition of ‘State’ under Article 12 by including entities discharging public functions with pervasive government control. A useful precedent to argue for constitutional obligations on platforms like Meta and Google.
In Ajit Mohan v. Legislative Assembly of NCT of Delhi, the Supreme Court acknowledged that social media platforms like Facebook play an increasingly dominant role in shaping public opinion and influencing democratic discourse.
While the core issue in the case revolved around legislative privilege and the power to summon private entities, the Court took judicial notice of the outsized impact of digital intermediaries on political speech, communal harmony, and the dissemination of information. Although it did not impose direct regulatory obligations, the Court underscored the need for accountability and responsible conduct from platforms that function as gatekeepers of online expression. This recognition sets the groundwork for future regulatory scrutiny of AI-driven content moderation and platform governance in India.
Conclusion
Shadow banning may not look like your traditional brand of censorship it’s quieter, slicker, and dressed in the invisibility cloak of “community standards.” But the consequences are no less chilling. If freedom of speech means anything, it must include the right to be heard not just to speak into a void. As platforms increasingly assume state-like roles in governing public discourse, the law must evolve to catch up with the new speech curators because freedom of expression should not be an illusion in your notifications bar.
FAQS
Q: Is shadow banning real or just paranoia?
A: It’s very real. Ask any political meme page admin who suddenly went from 2k likes to 2 likes without changing a thing. The lack of acknowledgment from platforms only makes it harder to trace.
Q: Can I sue Instagram for shadow banning me?
A: Not easily. Since these platforms are considered private actors, your fundamental rights aren’t directly enforceable against them unless they’re found to be discharging public functions under Article 12.
Q: Do any laws in India regulate shadow banning?
A: Not directly. The IT Rules 2021 focus on takedowns and user grievance redressal but fail to include algorithmic suppression within their ambit.
Q: What are other countries doing about it?
A: The EU’s Digital Services Act and Germany’s NetzDG impose requirements for transparency and accountability in content moderation. India hasn’t caught up yet.
Q: What can be done about it legally?
A: Amendments to India’s IT Rules could include provisions requiring platforms to notify users about visibility suppression and offer appeal mechanisms. Courts could also be urged to recognize major platforms as quasi-public entities under Article 12.
