Thickening the “Chill”: Expanding the Chilling Effect Doctrine through Kunal Kamra v Union of India
Introduction
The Bombay High Court’s judgment in Kunal Kamra v. Union of India (“Kunal Kamra”) held the 2023 amendment to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“impugned rule”), as unconstitutional under Article 19(1)(a). Justice Patel and Justice Chandurkar held that the impugned rule had a chilling effect on free speech, deterring individuals from expressing dissent or criticism due to fear of government reprisal. Justice Gokhale dissented, arguing that the rule contained sufficient safeguards; claims of a chilling effect were merely speculative.
A chilling effect occurs when individuals are discouraged from taking a specific action (X), such as speaking freely, due to the fear of a potential consequence (Y), like legal punishment or social backlash. Importantly, this deterrence is indirect. It is not from an explicit restriction, but from anticipating how a restriction might be applied. In other words, people self-censor to avoid consequences, even if the restriction does not penalise them immediately. This creates a climate of fear where the possibility of adverse outcomes limits free expression.
While Courts have traditionally viewed the chilling effect through the theory of “fear of legal harm,” this understanding may be too narrow in the digital age. This paper argues that the chilling effect stems from privacy concerns and social conformity pressures. The rise of surveillance technologies and algorithmic manipulation on social media contribute to a more pervasive form of chilling effect that is not just self-censorship; it is productive in as much as it creates and perpetuates the majority agenda.
By reassessing the Kunal Kamra case through these broader frameworks, we can better grasp how individuals are silenced by the threat of legal action and the subtle forces shaping behaviour in the modern digital landscape.
The paper first examines the Kunal Kamra case and how the chilling effect doctrine is understood in Indian jurisprudence. Next, it critiques this traditional view of chilling effect as legal harm by addressing its theoretical and empirical limitations. Following this, alternative theories centred on privacy invasion and social conformity are introduced to thicken our understanding of the doctrine. Finally, the paper revisits the Kunal Kamra case through these alternative lenses, demonstrating how these broader perspectives offer a more nuanced understanding of the chilling effect.
Kunal Kamra & The “Chilling Effect” Doctrine
The Kunal Kamra case challenged the impugned rule, which empowered a government-appointed Fact Check Unit (“FCU”) to determine whether any content related to the “business of Central Government” was “fake, false or misleading.”
The petitioners argued that the impugned rule violated freedom of speech protected under Article 19(1)(a). They argued that the amendment muzzles criticism and questioning of the Central Government as it goes about its “business” and stifles dissent from what the Central Government puts out regarding state affairs. By appointing the Central Government as the sole arbiter of what is “fake, false or misleading,” the entire amendment is overbroad, vague and without controlling guidelines. This uncertainty would lead to self-censorship, as individuals and media organisations would fear potential repercussions from the Government’s arbitrary judgment on content, producing a chilling effect on free speech.
The Government defended that the impugned rule does not target satire, political parody, or criticism, which remain constitutionally protected forms of speech. Satire is permissible unless deliberately false and misleading, even with dramatisation or occasional false elements. The rule, the Government argued, only applies to content that is patently false and communicated with knowledge of its falsehood. It argued that claims of a “subjective chill” are insufficient grounds for invalidating the rule without evidence of specific harm. Furthermore, it noted that the petitioners had not shown any actual chilling effect caused by existing fact-checking mechanisms like the PIB, and the fear of potential misuse of the proposed FCU was speculative at best.
Justice Patel held the impugned rule to be unconstitutional. In the context of the chilling effect, he argued that self-censorship occurs either directly when authors withhold their content for fear of adverse consequences or indirectly when intermediaries controlling the dissemination of content prevent it from being published due to the fear of government reprisal. In this case, the power granted to the FCU by the broad and vague amendment created a chilling effect by the creating uncertainty and fear among those who critique the Government. The possibility that their content could be deemed “fake” or “false” and removed with legal and reputational harm would lead to self-censorship.
Justice Patel used the “marketplace of ideas” to ground his understanding of the chilling effect doctrine. He argued that this metaphorical marketplace represents a forum for the free exchange of diverse and dissenting ideas. It is not a place for conformity or tranquillity but where disagreement, debate, and discourse thrive. Justice Patel argued that without such a space, Article 19 (1) (a) becomes hollow. He stressed that free speech is not merely about comfort or agreement but about dialogue, even if it leads to discomfort. By creating a scenario where individuals and intermediaries would pre-emptively censor their content to avoid potential harm, the amendment imposed invisible shackles on free speech.
Justice Atul Chandurkar, in his deciding opinion, agreed with Justice Patel on the chilling effect and traced the jurisprudence of the doctrine.
First, he referred to Anuradha Bhasin v. Union of India, where the Supreme Court acknowledged the concept of chilling effect as a recent development in Indian jurisprudence. The case held that while a chilling effect could serve as grounds to challenge state action that imposed an excessive burden on free speech, sufficient material must prove such a claim. The Court in Anuradha Bhasin introduced the test of “comparative harm” to differentiate between legitimate chilling effect claims and mere emotional arguments.
Second, he relied on Shreya Singhal v. Union of India, where the Supreme Court struck down Section 66A of the IT Act for being overly vague and broad, causing a “total chilling effect” on free speech. The Court had held that legal provisions which lack clear standards or guidance are unconstitutional due to their potential to induce self-censorship. Justice Chandurkar connected this principle to the impugned rule, arguing that vagueness and overbreadth could lead to similar outcomes.
Lastly, he referred to Mohammed Zubair v. State of Uttar Pradesh, where the Supreme Court rejected a request to prohibit the petitioner from tweeting while on bail, recognising that such a restriction would amount to a gag order and have a chilling effect on free speech.
In her dissent, Justice Dr. Neela Gokhale rejected the claim that the impugned rule would suppress free speech. She argued that the rule did not directly penalise intermediaries or users without recourse to legal remedies, differentiating it from the wording of Section 66A of the IT Act, which had been struck down in Shreya Singhal v. Union of India. Justice Gokhale argued that sufficient procedural safeguards were in place under the rule. She also noted that political satire, parody, and criticism would not be arbitrarily restricted, as the rule only targets misinformation shared with malicious intent. The mere flagging of content by the FCU would not immediately trigger action, and intermediaries would retain “safe harbour” protections, provided they adhered to due diligence guidelines. In her view, the petitioners’ fears of self-censorship and chilling effect were speculative at best.
Chilling Effect As Fear Of Legal Harm
From the previous section, it is evident that Indian courts have predominantly interpreted the chilling effect through the lens of “fear of legal harm,” looking at how the fear of prosecution or legal consequences drives individuals to self-censor. According to this understanding, “overbroad and vague” provisions lead to legal uncertainty, which in turn deters free speech and leads to complete self-censorship.
Frederick Schauer prominently theorised about the “fear of legal harm” theory in the context of the First Amendment in the United States. His theory had two dimensions:
First, chilling effects are grounded in deterrence theory, arguing that individuals refrain from speech or actions out of fear of legal harm. Individuals perform a rational cost-benefit analysis before avoiding specific actions to evade potential legal threats or harm. Schauer views chilling effect as a “branch of decision theory,” possibly coloured by the focus of law and economics at the time. Rational choice or decision theory assumes that individuals make decisions to maximise utility and minimise costs.
The second dimension of his theory is assuming that the primary manifestation of the chilling effect is self-censorship – a deliberate absence of speech or action. Faced with overbroad or vague laws, individuals exercise self-restraint, choosing not to speak up or engage in them. This self-censorship hurts the free expression of ideas and inhibits democratic discourse.
The normative foundation of this is liberal theory. This includes scepticism towards state intervention in free expression, as argued in John Stuart Mill’s “harm principle,” and a commitment to individual liberty and freedom. Mill links liberty to social “utility,” defining it as essential for individuals’ progress and permanent interests. Additionally, Mill asserts that liberty of speech is crucial to society for its role in truth identification and the advancement of knowledge. Schauer reinforces these arguments by examining speech’s “transcendent value” and its importance to “individual liberty.”
Further, the “marketplace of ideas” metaphor is often used as a normative ground for understanding the chilling effect. Initially articulated by John Milton and Mill and adopted by Justice Oliver Wendell Holmes Jr, it envisions public discourse as a competitive arena where diverse ideas vie for acceptance, with truth emerging from the free and open exchange of perspectives. The “marketplace of ideas” argument is that by deterring individuals from participating in this discourse through overbroad or vague laws, the legal system effectively diminishes the diversity and robustness of ideas within the marketplace, weakening the democratic foundation that relies on free speech.
However, this theory has theoretical, empirical, and normative limitations. Many of these issues centre around deterrence theory, upon which legal harm theory is built.
Firstly, there is an overemphasis on legal sanctions. The focus on legal harm assumes that fear of prosecution is the primary driver of self-censorship. However, empirical research challenges this assumption. Experimental studies in psychology and other disciplines demonstrate that individuals do not consistently engage in the rational cost-benefit analyses that deterrence theory presumes. People often do not accurately assess legal risks before speaking or acting, and situational pressures can impede their ability to make rational decisions. Additionally, many individuals are not sufficiently aware of the law or state activities to perceive any potential legal harm. Therefore, the foundational premise of deterrence-based chilling effects is weakened.
Expanding on the same argument, there is limited empirical support for deterrence. Empirical evidence suggests that deterrence theory has limited effectiveness in practice. Studies have consistently found that fear of legal sanctions does not significantly influence behaviour, with effects often being modest to negligible. Even when deterrence effects are observed, they typically require particular conditions rarely met in real-world scenarios. This becomes important when we see the Government’s defence that no empirical evidence exists to show the chilling effect in the Kunal Kamra case.
Thirdly, the theory fails to explain chilling effects in contexts without clear legal harm. For example, let us look at the chilling effect associated with surveillance. Empirical studies have shown that the mere awareness of government surveillance can deter individuals from accessing or engaging with certain online content, even when there is no imminent legal threat. Surveillance-driven chilling effects operate through a different logic. Here, individuals are not calculating legal risks but altering behaviour out of fear that their actions are being monitored, recorded, or profiled, even when no legal consequences are imminent.
In a study examining behaviour post the Snowden revelations (when it became public knowledge that the U.S. government was conducting mass surveillance) people’s behavior on the internet changed, even though there were no legal consequences for accessing certain types of content. Specifically, the study found that there was a significant decrease in the number of views on Wikipedia articles related to “terrorism,” which are considered privacy-sensitive topics. This indicates that factors beyond legal harm, such as privacy concerns and fear of being under surveillance, play a role in inducing self-censorship, which legal harm theory cannot adequately explain.
Fourthly, the theory’s liberal or libertarian foundations prioritise individual liberty and scepticism towards state intervention but offer little to critique or regulate private sector activities that can also induce chilling effects, such as corporate surveillance or data collection practices. This omission is particularly problematic in an era dominated by “surveillance capitalism,” where private entities possess extensive capabilities to monitor and influence individual behaviour without legal sanctions.
Lastly, the theory fails to account for the significant impact of social and psychological pressures on self-censorship. Factors such as societal norms, peer pressure, and the psychological effects of perceived surveillance can lead individuals to self-censor independently of any legal fears. For example, the “watching eye” phenomenon, where individuals alter and censor their behaviour simply due to the perception of being observed, demonstrates that chilling effects can arise from non-legal sources. This aspect is crucial in understanding self-censorship in the digital age, where social conformity and the omnipresence of surveillance technologies influence behaviour.
Alternate Theories
Recognising the limitations of the legal harm theory, it is essential to explore alternative frameworks that offer a more comprehensive understanding of chilling effects in the digital age. Two such models are chilling effects, such as fear of privacy harm and chilling effects, such as social conformity.
Chilling Effects as Fear of Privacy Harm
The digital revolution has unprecedented surveillance and data collection levels by both state and private entities. This pervasive monitoring extends beyond the traditional fear of legal sanctions, encompassing concerns about how personal data is collected, processed, and potentially misused. Chilling effects arise when individuals, aware that their activities are being watched, refrain from expressing themselves freely or accessing certain information out of fear that their actions will be recorded, analysed, or disclosed without consent.
In his work on privacy, Daniel Solove provides a detailed taxonomy of how privacy harms looking at how modern technologies have transformed the nature of surveillance. Solove identifies several categories of privacy invasions, including information collection, information processing, information dissemination, and invasion of personal space. Each category contributes to a chilling effect by creating apprehension about personal data being used in ways that could harm individuals’ reputations, relationships, or personal security.
The philosophical foundation for this broader conception of chilling effects is further articulated by scholars such as Julie E. Cohen and Neil Richards. Cohen emphasises the concept of “informational capitalism,” where personal data becomes a commodity, leading to what she terms the “modulation” of individual behaviour. She argues that pervasive data collection practices can influence and constrain personal autonomy, causing individuals to self-censor and self-correct in anticipation of surveillance. Neil Richards introduces the concept of “intellectual privacy,” arguing that privacy is essential for free thought and expression. He argues that surveillance undermines the conditions for individuals to develop ideas and engage in open discourse without fear of reprisal. Further, Hannah Arendt emphasizes privacy as a space for autonomy and creativity, free from public scrutiny. In the digital age, surveillance erodes this space, stifling free thought and expression. Foucault’s Panopticon metaphor shows us how constant surveillance, real or perceived, leads individuals to self-censor, as they modify behavior to avoid potential consequences. This surveillance-driven self-regulation reshapes not only actions but also thoughts, as individuals conform pre-emptively.
Moreover, the private sector’s role in data collection amplifies these concerns. Companies engaged in “surveillance capitalism,” as described by Shoshana Zuboff, exploit personal data for profit, often without adequate transparency or consent. This commercial surveillance can also lead to chilling effects, as individuals may avoid certain online activities due to fears about how their data might be used, shared, or sold. The mix of state surveillance and corporate data practices creates a pervasive environment where privacy harms contribute significantly to self-censorship.
In Kunal Kamra’s case, the FCU surveillance infrastructure, individuals are uncertain about how their online activities might be monitored and used against them. The mere possibility of being surveilled can not only deter individuals from expressing critical opinions or accessing certain information, even if there is no threat of legal action; but also lead to a change in the very nature of their thoughts and speech.
This over-surveillance creates a chilling effect by inculcating a sense of insecurity regarding one’s personal data and online presence. The impact is particularly pronounced in politically sensitive contexts, where individuals may avoid expressing dissenting opinions or engaging in discussions about controversial issues, not because of the legal harm that could be attached to it but for fear that their activities will be flagged by the state or intermediaries and lead to further scrutiny.
Chilling Effects as Social Conformity
Another alternative theory focuses on the power of social conformity to induce chilling effects. Grounded in social psychology, this theory argues that individuals often conform to societal norms and majority opinions due to the innate human desire for social acceptance and fear of ostracism. Solomon Asch’s classic experiments demonstrated that people are willing to align their perceptions and expressions with group norms, even when they conflict with their beliefs.
In the context of chilling effects, social conformity arises when individuals self-correct to avoid social alienation or criticism. This phenomenon is particularly pronounced when dissenting opinions are discouraged or stigmatised. Governments can exploit this tendency by promoting dominant narratives and suppressing alternative viewpoints, shaping public discourse through indirect social pressures rather than direct legal sanctions.
Let us analyse the Kunal Kamra case to understand how social conformity contributes to chilling effects. The impugned rules impose legal uncertainties and create social pressures that encourage conformity to the Government’s preferred narratives. By empowering the FCU to flag content, the rules signal to society that specific topics or criticisms are undesirable. This can lead to people following the narrative set up by the Government itself. This is not about self-censoring. This is a method of creating conformity where the “business of the government” is only to be discussed in the narrative that the Government itself will decide. Therefore, the chilling effect is not just restrictive but also productive in as much as it creates and perpetuates the majority agenda. Only when we understand this dimension of the chilling effect will we be able to tackle the empirical deficit in fear of legal harm theory.
To give an Orwellian analogy, similar to the authoritarian regime in 1984, the impugned rules create situation where the government enforces its version of truth through systematic control over what can be said or thought. Much like Newspeak restricted the range of thought by limiting language, these rules curtail freedom by shaping what can be publicly debated. The chilling effect, in this case, is when citizens begin to censor themselves not just out of fear of legal consequences but out of internalized obedience to the dominant narrative and surveillance by the Big Brother. The act of conforming becomes second nature, ultimately serving the state’s purpose of ideological control.
Additionally, the role of social media platforms and algorithms builds on the chilling effect of social conformity. Platforms often employ algorithms that promote content aligning with majority views or user preferences, creating “echo chambers” where dissenting opinions are less visible. This can discourage individuals from expressing divergent views due to the perceived lack of support or fear of backlash. Cass Sunstein’s work on “cybercascades” and “group polarisation” shows how online environments can intensify social conformity, leading to more extreme and uniform viewpoints within groups.
Revisiting Kunal Kamra
Now, with a thicker understanding of the chilling effect, we can revisit the Kunal Kamra case with a hypothetical.
Imagine a university professor who frequently writes blog posts on government policies. Typically, they offer sharp critiques on controversial issues, but with the advent of FCUs, they become increasingly aware that their posts might be flagged as “false or misleading.” The fear of being watched, the “watching eye” effect, subtly creeps into their writing process. Though not directly facing legal consequences, the professor now censors themselves out of fear that their critiques could invite unwanted surveillance or scrutiny.
Beyond the threat of legal harm, a pervasive sense of privacy invasion drives this chilling effect. Surveillance does not just target the illegal or harmful; it makes people rethink lawful, legitimate speech, reducing their autonomy over their ideas. The professor, uncertain about how the FCU might interpret their online activities, might avoid discussing or reading controversial topics. This erosion of intellectual privacy means that self-censorship becomes second nature, limiting the kinds of thoughts and discussions they engage in simply to avoid being flagged by the FCU.
Moreover, this chilling effect is magnified by social media algorithms, the “echo chambers” prioritise content that aligns with the majority’s views. In such a scenario, the professor notices that critical or dissenting content is suppressed or receives far less engagement than posts echoing government-friendly narratives. The combination of FCU surveillance and algorithmic biases narrows discourse, where only government-approved ideas circulate widely. This does not just create an environment of silence but actively breeds social conformity.
In this way, the chilling effect extends beyond legal concerns and taps into deeper social and psychological pressures, including fear of privacy harm, social conformity, and platform manipulation of discourse. The FCU becomes a tool for creating an environment where individuals alter their behaviour not just out of fear of legal harm but because they see no space for their dissenting voice. Eventually, all that survives is the dominant narrative.
Conclusion
The Bombay High Court’s decision to strike down the impugned rules recognises the dangers of vague and overreaching laws. At its core, the Kunal Kamra case reveals the chilling effect laws can have on public discourse as people begin to self-censor out of fear of government scrutiny, even when no direct punishment is in sight.
But the chilling effect, as this paper has explored, is much more than just a fear of legal consequences. It is a deeper, more insidious force that seeps into the everyday lives of people, especially in the digital age.
The fear of being watched and the subtle pressures of social conformity create a culture where self-censorship and self-regulation become second nature. It is not just about avoiding jail or fines anymore – it is about preserving one’s reputation, privacy, and even peace of mind in a world where every action online is monitored and judged. A thicker understanding of the chilling effect doctrine helps us grasp the full extent of how these pressures operate. Ultimately, by recognising and addressing these layered chilling effects, we can better protect free speech and democracy.