India is one of such paradises on earth where you can speak your heart out without the fear of someone gunning you down for that, or, it has been until now. Even if the situation of Indians is a lot better than that of their fellow citizens of other nations, the picture is not really soothing or mesmerizing for Indians any more. This observation is being made with regard to the exercise of the right of freedom of speech and expression in the context of social media and the hurdles placed on that by the arbitrary use of the so called cyber laws of the nation, particularly Section 66A of the Information Technology Act, 2000.
Before delving into the issue in details, it is but desirable to first understand the concepts of social media and freedom of speech and expression.
What is Social Media?
Social media comprises primarily internet and mobile phone based tools for sharing and discussing information. It blends technology, telecommunications, and social interaction and provides a platform to communicate through words, pictures, films, and music. Social media includes web- based and mobile technologies used to turn communication into interactive dialogue.
Social media can be defined as any web or mobile based platform that enables an individual or agency to communicate interactively and enables exchange of user generated content. Andreas Kaplan and Michael Haenlein define social media as “a group of internetbased applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of user- generated content.” “Web 2.0” refers to Internet platforms that allow for interactive participation by users. “User generated content” is the name for all of the ways in which people may use social media. The Organization for Economic Cooperation and Development (OECD) specifies three criteria for content to be classified as “user generated:” (1) it should be available on a publicly accessible website or on a social networking site that is available to a select group, (2) it entails a minimum amount of creative effort, and (3) it is “created outside of professional routines and practices.”
Another variant of social media is mobile social media i.e. when social media is used in combination with mobile devices it is called mobile social media. Due to the fact that mobile social media runs on mobile devices, it differentiates from traditional social media as it incorporates new factors such as the current location of the user (location-sensitivity) or the time delay between sending and receiving messages(time-sensitivity).
Freedom of Speech And Expression:
Freedom of speech and expression is broadly understood as the notion that every person has the natural right to freely express themselves through any media and frontier without outside interference, such as censorship, and without fear of reprisal, such as threats and persecutions.
Freedom of expression is a complex right. This is because freedom of expression is not absolute and carries with it special duties and responsibilities therefore it may be subject to certain restrictions provided by law.
The term freedom of expression itself had existed since ancient times, dating back at least to the Greek Athenian era more than 2400 years ago. The following are some of the most commonly agreed upon definitions of freedom of expression that are considered as valid international standards:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
“Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” .
Similarly, Article 19 (1) (a) of the Constitution of India also confers on the citizens of India the right “to freedom of speech and expression”. The freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. It also includes the right to propagate or publish the views of other people
The term ‘freedom of speech and expression’ includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Based on John Milton’s arguments, freedom of speech is understood as a multi- faceted right including not only the right to express or disseminate information and ideas but also including the right to seek, receive and impart information and ideas.
Freedom of Speech And Expression And Social Media/ Internet
The Internet and Social Media has become a vital communications tool through which individuals can exercise their right of freedom of expression and exchange information and ideas. In the past year or so, a growing movement of people around the world has been witnessed who are advocating for change, justice, equality, accountability of the powerful and respect for human rights. In such movements, the Internet and Social Media has often played a key role by enabling people to connect and exchange information instantly and by creating a sense of solidarity. The UN Human Rights Committee has also tried to give practical application to freedom of opinion and expression in the radically altered media landscape, the centre stage of which is occupied by the internet and mobile communication. Describing new media as a global network to exchange ideas and opinions that does not necessarily rely on the traditional mass media, the Committee stated that the States should take all necessary steps to foster the independence of these new media and also ensure access to them. Moreover, Article 19 of the UDHR and Article 19(2) of the ICCPR also provides for freedom of speech and expression even in case of internet and social media. Thus, it is seen that freedom of speech and expression is recognized as a fundamental right in whatever medium it is exercised under the Constitution of India and other international documents. And in the light of the growing use of internet and social media as a medium of exercising this right, access to this medium has also been recognized as a fundamental human right.
Restrictions on Freedom of Speech And Expression
The freedom of speech and expression does not confer on the citizens the right to speak or publish without responsibility. It is not an unbraided license giving immunity for every possible use of language and prevents punishment for those who abuse this freedom. Article 19(3) of the ICCPR imposes restrictions on the following grounds:
(a) For respect of the rights of reputations of others
(b) For protection of national security, or public order, or public health or morals. As per Article 19(2) of the Constitution of India, the legislature may enact laws to impose restrictions on the right to speech and expression on the following grounds:
(a) Sovereignty and integrity of India
(b) Security of the State
(c) Friendly relations with foreign States
(d) Public order
(e) Decency or morality
(f) Contempt of court
(h) Incitement to an offence
Cyber Laws of India And Social Media
Although there is no specific legislation in India which deals with social media, there are several provisions in the existing so-called cyber laws which can be used to seek redress in case of violation of any rights in the cyber space, internet and social media. The legislations and the relevant provisions are specifically enumerated as under:
The Information Technology Act, 2000
(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and 67B contain punishments for computer related offences which can also be committed through social media viz. tampering with computer source code, committing computer related offences given under Section 43, sending offensive messages through communication services, identity theft, cheating by personation using computer resource, violation of privacy, cyber terrorism, publishing or transmitting obscene material in electronic form, material containing sexually explicit act in electronic form, material depicting children in sexually explicit act in electronic form, respectively.
(b) Section 69 of the Act grants power to the Central or a State Government to issue directions for interception or monitoring or decryption of any information through any computer resource in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States, public order, for preventing incitement to commission of any cognizable offence, for investigation of any offence.
(c) Section 69A grants power to the Central Government to issue directions to block public access of nay information through any computer resource on similar grounds.
(d) Section 69B grants power to the Central Government to issue directions to authorize any agency to monitor and collect traffic data or information through any computer resource for cyber security.
(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable for any third party information, data or communication link made available or hosted by him in the
Section 66A of the Information Technology Act, 2000.
Of all these provisions, Section 66A has been in news in recent times, albeit for all the wrong reasons. Before discussing the issue in detail, it is desirable to first have a look at Section 66A, the provision itself. Section 66A of the Information Technology Act, 2000 inserted vide Information Technology (Amendment) Act, 2008 provides punishment for sending offensive messages through communication service, etc. and states:
Any person who sends, by means of a computer resource or a communication device-
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
To add to the fear that this provision could be hugely misused, several incidents in the recent past bear testimony to the same.
A chronological order of such events is as follows:
In April 2012, Ambikesh Mahapatra, a professor of chemistry in Jadavpur University in West Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on social networking sites.
In May 2012, two Air India employees were arrested by the Mumbai Police for putting up on Facebook and Orkut content that was against a trade union leader and some politicians. They were in custody for 12 days.
In November 2012, Shaheen Dhada was arrested for questioning the shutdown of Mumbai following the death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was “liked” and shared by her friend, Renu, who was also arrested by the Thane Police in Maharashtra.
In the face of widespread abuse of Section 66A, a writ petition has been filed in the form of a public interest litigation in the Supreme Court challenging the section’s constitutionality wherein it has been submitted that the phraseology of impugned Section is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution. Admitting the writ petition, Division Bench of Supreme Court, comprising Chief Justice Altamas Kabir and Justice J. Chelameswar, noted that the “wording of Section 66A is not satisfactory. It is made very wide and can apply to all kinds of comments.”
It is clearly evident that social media is a very powerful means of exercising one’s freedom of speech and expression. However, it is also been increasingly used for illegal acts which has given force to the Government’s attempts at censoring social media. Where on the one hand, the misuse of social media entails the need for legal censorship, on the other hand, there are legitimate fears of violation of civil rights of people as an inevitable consequence of censorship.
What is therefore desirable is regulation of social media, not its censorship. However, the present cyber laws of India are neither appropriate nor adequate in this respect. An analysis of the existing IT laws shows that there is unaccountable and immense power in the hands of the Government while dealing with security in the cyber space. Even then, it is not sufficient to check the misuse of social media. Hence, a specific legislation is desirable to regulate social media.
Keeping all this in mind, it is suggested that the Government should form a Committee including technical experts to look into all the possible facets of the use and misuse of social media and recommend a suitable manner in which it can be regulated without hindering the civil rights of citizens.
Author, Neshapriyan N, Legal Service India.
1. Rohit Raj, “Defining Contours of Press Freedom in Backdrop of National Emergency of 1975”, All IndiaReporter (Journal Section), 2008, pp. 155-160, at 160.
2. Andreas M. Kaplan & Michael Haenlein (2010), “Users of the World, Unite! The Challenges andOpportunities of Social Media”, Business Horizons, vol. 53, 2010, pp. 59-68, at 61.
3. “Freedom of Expression Everywhere”, available on the Web, URL:http://www.ohchr.org/EN/NewsEvents/Pages/Freedomofexpressioneverywhere.aspx, accessed on 5/10/18.
4. Article 19, Universal Declaration of Human Rights, 1948 (UDHR)
5. Article 19 (2), International Covenant on Civil and Political Rights, 1966 (ICCPR)
6. Justice Rajesh Tandon, “Policing the Web: Free Speech under Attack?”, Lawyers Update, August 2011, alsoavailable on the Web, URL: http://lawyersupdate.co.in/LU/7/65.asp, accessed on 24/10/18.
7. “Censoring the Internet”, available on the Web, URL: http://barandbench.com/censoring_the_internet.html, accessed on 30/10/18