The Internet offers extraordinary opportunities for “speakers,”. Political candidates, cultural critics, students — anyone who wants to express an opinion about anything — can make their thoughts available to a world-wide audience far more easily than has ever been possible before. A large and growing group of Internet participants have seized that opportunity.
Pornography, hate speech, threats flourish debates over the future of the Democratic Party and exchanges of views. This phenomenon has provoked various efforts to limit the kind of speech in which one may engage on the Internet or to develop systems to “filter out” the more offensive material. The Internet has reduced barriers to communication. It is a great enabler of the fundamental right to freedom of speech and expression. This needs to be protected for everyone.
There is no way that Internet should be discussed disregarding the major tenets of free speech/freedom of expression. Questions like how to strike a balance between freedom of expression and regulation of hate speech on the Internet in order to avoid internet censorship forms the underlying thesis in this paper and is core to the discussion. The debate shall be limited to whether regulation of the Internet (including regulation of hate speech) should be kept to the minimum in order to empower individuals to make up their own minds on important issues which increases the likelihood that they will become active participants in democracy as opposed to regulation of the Internet which may result into total curtailment of freedom of expression on the Internet and thereby create Internet censorship.
What is Social Media?
Social media basically comprises of internet and mobile phone-based tools for sharing and discussing information. It aims at blending 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 that is 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. “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 ought to be available on a publicly accessible website or on a social networking site that is available to a selected group, (2) it entails in it 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 understood as the notion that every person has natural rights to freely express themselves through any media and frontier without outside interference, such as censorship, and without fear of retaliation, such as threats and persecutions.
Freedom of expression is a complex right. This is because freedom of expression is not absolute and carries special duties and responsibilities therefore it may be subject to certain restrictions that are provided by law.
The term freedom of expression had existed since ancient times, dating back to the Greek 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. Freedom of speech is understood as a multi- faceted right including not only the right to express information and ideas but also including the right to seek, receive and impart information.
Freedom of Speech and Expression on Social Media/ Internet
The Internet and Social Media has become very important and critical communication tools through which any individual can exercise their right of freedom of expression and can also exchange information and ideas. In the past years, a growing number 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 vital role by enabling people to connect and exchange information instantly. The UN Human Rights Committee has also someway tried to give practical application to freedom of opinion and expression in the media landscape, the center 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 exactly rely on the traditional 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 importantly recognized as a fundamental human right.
Restrictions on Freedom of Speech and Expression
The freedom of speech and expression does not grant the citizens the right to speak or publish without responsibility. It is not a smooth license giving immunity to all the possible use of languages 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 are no specific legislations in India which deals with social media, though there exist several provisions in the cyber law which can be used to seek redressal in case of violation of any rights in the cyber space, internet and social media. The legislations and the relevant provisions are specifically briefed as under:
1. 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 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.
2. Section 66A of the Information Technology Act, 2000
Of all these provisions, Section 66A has been in news in recent times, although for all the wrong reasons. 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 offensive or has menacing character;
(b) any information which he actually 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.
To add to the fear that this provision could be hugely misappropriated and misused, several incidents in the recent past bear testimony to the same.
A chronological order of such events is as follows:
- AMBIKESH MAHAPATRA & ANO..PETITIONERS V. THE STATE OF WEST BENGAL & ORS.
In April 2012, Ambikesh Mahapatra, a chemistry professor in Jadavpur University in West Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on social networking sites.
- MAYANK MOHAN SHARMA V. AIR INDIA LTD AND 3 ORS
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 the face of widespread abuse of Section 66A, a writ petition had been filed in the form of a PIL i.e. public interest litigation in the Supreme Court challenging constitutionality wherein it has been submitted that the terminology of disputed Section is so wide and vague and incapable of being judged on objective standards, that it is likely to be abused 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.”
Is it censorship for a website to delete my comment?
Most of us will never attempt to slander someone/anyone, or will never try to willingly spread wrong information on the internet. We will use the comment systems on websites to ask for information, agree or disagree with the post, open a dialogue, or even have some fun.
And yet, anyone can write a comment with “acceptable” comment, and either never see it published, or have it later deleted.
Does this constitute censorship? If the comment didn’t contain slander, libel, or misinformation, was it wrong for the website to remove it?
The answer is a categorical “no.” The “why” it has to do with who owns the medium on which we post the comments.
An example outside of the Internet
For eg, we went to a restaurant, and we did not like the food at all. So do we have the right to climb up on the table and start shouting “THIS IS THE WORST FOOD I HAVE EVER EATEN”?
In this case, if we are repeatedly disruptive, the restaurant has every right to call the police and remove us from the establishment. If the restaurant thinks that our behavior is causing discomfort to the other customers, it has every right to take the necessary action.
Supreme Court Upholds Freedom of Speech on the Internet
Shreya Singhal v. Union of India, 24March 2015
Bench: J Chelameswar, Rohinton Fali Nariman
In its decision in Shreya Singhal v. Union of India, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 on the grounds that the Section has a chilling effect on the right to freedom of speech and expression over the Internet. At the same time, the apex court also read down some of the harsher provisions of the Intermediary Guidelines that dealt with the takedown of illegal content posted on the Internet. Both for its jurisprudential content as well as the immediate effect that it will have on companies operating on the Internet in India, this decision will have a significant impact on the way in which the Internet is used in India.
On 24 March 2015, the Supreme Court of India issued a long-awaited judgment on the constitutional validity of various provisions that had been newly introduced into the Information Technology Act, 2000 (IT Act). The 122-page judgment is exhaustive in its analysis, carefully reasoned and will have far reaching consequences on the jurisprudence relating to the freedom of speech and expression in the country. To the extent that this judgment also deals with the liability of intermediaries for content published on their platforms it will have a significant impact on e-commerce entities, social media companies and all other commercial enterprises whose business model is largely dependent on the internet.
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.
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