Law · Society · Technology

Freedom of Speech on Social Networking Sites and Present Legal Complexities

Abstract

Laws are made for the protection of the society and they are bound to change with social change. In the modern era, with the social change, two very important aspects have come up in the society, firstly, technological advancement and its easy accessibility to people and secondly the ideologies of freedom and individuality. Although we live in a world where the democratic form of government embracing the principles of individuality, freedom, justice and equality is the most acceptable to people, one need to analyse the situation which comes up with the interface of technology and these ideologies and what role does law plays in such situations. Social networking has become the most popular and effective way for people to interact, share, connect with each other and can express their ‘ideologies’. However the recent trend of governmental interference in the social network sites and the people’s expressions on them has gained much controversy. The censorship on the networking sites, the arrests made by the police in relation to alleged ‘anti-government’ posts have been criticised by the public at large. In such a scenario the much celebrated principles of democracy- freedom and individuality are infringed. However one cannot make an impulsive conclusion and we should remember that we can never have any absolute rights even in the virtual space since it has become the new ‘public place’. Hence it is important to look into and analyse the take of law on this position. In this paper the researcher has made an effort to analyse:

  1. How the networking sites have become a part of our lives,
  2. The current controversies,
  3. The laws dealing with it and
  4. Evaluate the problem and finding out a fine balance between freedom and limitations to the same in the virtual space of social networking sites.

Freedom of speech and expression in the liberal world order

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

— John Stuart Mill, On Liberty, 1859

As human beings communication becomes part of our lives, without it the societies might as well cease to exist. To survive interaction becomes important. However not just mere existence but to lead a meaningful life the very freedom to speak one’s own mind becomes important and necessity as such. Political theorists, philosophers have time and again laid emphasis on the freedom of speech and expression. One of the most distinguished supporters of freedom of speech has been John Stuart Mill. In his most famous work On Liberty[1], he raises the proposition of Harm Doctrine. According to this doctrine the actions of individuals should only be limited to prevent harm to other individuals. Applying that principle to communication we could say every person is free to express his views unless it is against the public policy or in general, harms others.

With the new era of liberalism and individualism people have become more sensitive about their freedom of speech and expression. It has becomes important for democracies to give enough space to their citizens to speak their mind and opinions. It is a cornerstone of democratic rights and freedoms. Democracy thrives when the citizens are heard and have the freedom to express themselves. A true democracy values its citizen’s opinions and views and gives them a full chance to express them. Hence we find that almost all the democracies have recognized the right of their citizens to speak their minds, raise their opinions. However the nations have dealt with this particular freedom in their own ways and social contexts.

Not just the nations individually have taken steps to protect the freedom of speech of their citizens but also at the world level the democracies have together tried to recognize this essential freedom. The UN in its various declarations has time and again reiterated the principle of freedom of speech and expression. Article 19 of the Universal Declaration of Human Rights[2] lays the basic standards for freedom of speech. It reads as follows:

“Everyone has the right to the 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”.

According to this Article the freedom of speech is for everyone regardless of the countries and societies of which they are part of. Also the Article gives space to all kinds of media and extends beyond boundaries of the nations. The freedom of speech has been recognized in several other international instruments like: Article 19 of International Covenant on Civil and Political Rights[3], 1966, Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination, 1965[4] gives right to each and every race to share their views and opinions, similarly the right of women and children to air their views and opinions has been recognized in Convention on the Elimination of Discrimination Against Women, 1979[5] under article 3 and Convention on the Rights of the Child, 1989[6] under article 13 respectively. Hence steps have been taken to extend this right to each and every section of the societies regardless the physical boundaries of the nations. Right to express ones opinion now forms an essential part of liberal world order.

However the notion of speech and expression has underwent a change with change in time and technology. Communication has reached a new level with various technologies playing an important role. One of the fastest ways of communication has been the internet. The internet has become a part and parcel of our life. The world has become interconnected and everything is just a click away.

Growth and impact of internet and social networking sites in India and the World

The internet has grown from a technology with limited purposes like that of research to a service to millions of people worldwide. With change in the users the purpose of internet has also changed and has widened. Internet has become both- a result and a facilitator of globalization. It has become a platform for communication among people, within and outside a nation. With modernization and globalization the ideas are not any more country specific. We live in a world where the ideas flow like rivers, from one country to another, to the entire world and regardless of physical boundaries of nation states. In the age of globalised world the technologies like internet have made communication among people around the world easy.

The internet developed and stayed in developed nations for some years. However such exclusive stay was a short one, as the internet spread to other developing nations. According to BBC report[7] in 1998 only a few nations like Iceland, Sweden and New Zealand had extensive usage of the internet. However by 2005 the world saw a great rise on the overall percentage of internet users worldwide. According to recent reports[8] China has become the nation with highest number of internet users, followed by USA and India. Hence it is quite clear that the developing nations have seen a great growth of internet. According to BBC’s research estimates there are as many as 121 million Indians logged onto the internet.[9] The technology is now within the reach of most of the urban Indian and slowly the accessibility is spreading to rural areas too. According to the same research there has been a growth of 25% in internet users in India over the past 12 months. Since India has marked its way to the top third position in the world having highest number of people using internet naturally legal complexities have also increased. Therefore India’s task to regulate the internet is an arduous one.

Such great growth of internet has lead to more inflow and sharing of ideas, knowledge, and news etc. Another phenomenon on the internet is that of social networking sites. The trend started with SixDegrees.com. However the developing nations like India became part of this phenomenon of social networking sites recently. The rise of other SNS, like Orkut, Facebook, and Twitter etc has been seen in majority of the countries in the world. Such social networking sites (SNS) have made communication easier and wider. These SNS provide a platform for people to interact with each other regardless of their geographical location. The social networking sites have become the common place for ‘hangouts’. The SNS have also evolved from just ‘making friends’ and ‘keeping in touch’ ideas to a platform for providing social awareness and voicing opinions and political ideas too. The world now lives on SNS more than the real world. We see people ‘sharing’ their every moment with the world via these SNS. The SNS are not used just by the common man. The politicians have also taken to these SNS. We can see politicians like Shashi Tharoor, Sushma Swaraj, Barack Obama, Hillary Clinton etc on Twitter, we can see legal luminaries like Justice Katju on facebook, and we can find innumerable actors on these sites. The networking makes people interconnected and no one is out of their reach.

The Arab Spring saw a great impact of these SNS. The people were mobilized and were brought together through such platforms. The ideas the share and express help the people to stand for a common cause. Similarly a mass movement against corruption was faced by India too. This time unlike other movements lead mostly by the ‘privileged’ the movement got huge support from all sections of the society and particularly the middle class people. The movement got support from internet users. Awareness, ideas and support flowed from every part of the nation through SNS like the Facebook. The recent uprising in Turkey is witnessing the same phenomena.

However there are many problems also that arise due to these SNS. There are serious concerns about privacy of people online. To deal with such issues the SNS have taken steps to ensure the privacy policies are made tough and that people may feel safe in their virtual homes. However the burning issue arising is that of the control and regulation of these SNS. Do we at all need to put law in our virtual homes? And if do need law what should be its limitations? Moreover the problem is how exactly can law deal with regulation of these SNS and the large population online with different identities and nationalities?

Freedom of Speech and Expression under Article 19(1)(a)

Part III of the Indian Constitution talks about the fundamental rights granted to the citizens of India without any discrimination. Article 19 talks about various freedoms granted to the citizens of India. Article 19 (1) (a) provides the citizens with freedom of speech and expression. Hence a citizen is free to air her views.

Though the Article gives this right it is through various cases that the scope of this article has widened to include various other aspect like right to remain silent, freedom of press, freedom to express oneself through electronic media too. The Chief Justice of India in Romesh Thapar v. State of Madras[10] observed: Freedom of speech and of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential to the proper functioning of the process of popular government, and is possible. It has been held that the right to communication is built on other rights like right to be informed, right to inform, right to privacy and right to participate in public communicative system.[11]  The right has been extended to raising ones opinions and views in public without fear of prosecution. A person has a right to express herself through any medium, the words spoken by mouth, written, printed, banners, signs etc. This freedom of speech and expression has been seen by the Supreme Court as an essential part of Article 21 that is Right to Life and personal liberty. Hence the freedom of speech and expression has been considered to be vital in survival of people and hence the citizens of India should not be stopped from exercising their right.

However this right is not an absolute right. Article 19 (2) is the proviso to Article 19(1) (a). Although citizens have a right to express themselves, the right is subjected to certain limitations specified in Article 19 (2). Article 19(2) reads as follows:
Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law as far as such law imposes reasonable restrictions on the exercise of the right in the following situations:

  1. Sovereignty and integrity of India.
  2. Security of the State
  3. Friendly relations with foreign State
  4. Public order
  5. Decency and morality
  6. Contempt of court
  7. Defamation
  8. Incitement to an offence

Citizens have freedom to communicate their ideas and the public has a right to know, synthesize and prevail over public media. In L.I.C. v Manubhai D. Shah[12] the court held that “Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagations of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lie what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.”

Hence a person has to be aware while exercising her right to speech and expression. In the any of the eight conditions stated above the state can restrict a person’s right under article 19 (1) (a). Though right to speech is a basic right as stated before, the need to maintain order in the state is rather more important choice. The limits to free speech become important to maintain harmony and balance in the society. No society can ever exist providing absolute freedom of speech to people.

According to Glanville Austin[13] the major reason to put such limitations may be that greater priority was given to social revolution to bring about equalities than to provide democracy. He summarized that such restrictions have three strands-

  1. Protecting and enhancing national unity and integrity,
  2. Establishing the institutions and spirit of democracy, and
  3. Fostering a social revolution to better the lot of the mass of Indians.

These three strands were mutually inter-dependent and inextricably intertwined. Democracy and social revolution were both equally important and one could not out weight the other and hence were complimentary to each other. Also looking at such large diversity without national unity democracy would be endangered and there could be little progress towards social and economic reform.

Another argument could be that state interventions are justified because once we do away with such a control or intervention we would slowly be moving towards anarchy, the state of nature, and a life that Hobbes described in Leviathan[14] as “solitary, poor, nasty, brutish, and short.” Again if we look from a legal point of view another argument can be that promotion of order in society is more important. In a country like India limitation to free speech becomes important due to social complexities. India in itself faces multiculturalism and law has to make sure that the interest of each and every group is accommodated. With such wide divisions in society at every level maintaining law and order is a difficult task. In the modern age with new technologies the task gets more intricate. The recent issues surround free speech on the internet.

Recent controversies over freedom of speech and the internet

The freedom of speech and expression is used and misused on the social networking sites every now and then. Problems like bullying, stalking etc are common. People express their views on certain issues but the tendencies of getting abusive are very much there. People put anti- women, racist, religionist, regionalist posts and comments and this ultimately goes against the values of those groups. Hence various countries put censorship on social media.

Years 2011 and 2012 have witnessed various controversies involving free speech on the SNS. Later in 2011 there was a recommendation by the then Telecom minister Mr. Kapil Sibbal and internet firms like Google and Facebook were aked to ‘screen’ the material before it is uploaded. The contention was that some of the content on the internet are found to be objectionable and could hurt religious sentiments; also there were lot of obscene and defamatory content being uploaded. Furthering the argument Mr. Shashi Tharoor, in an interview, said it wasn’t a censorship but looking at the social complexities present in India such content can actually cause problems of order in the nation as such content may hurt religious sentiments of people and also the government has to control the way people should act online.

Former Supreme Court judge Justice Katju supported the screening of the material for the same reason further substantiating it with article 19(2) the state has the power to restrict people’s right to free speech to maintain public order and decency and morality. However there were protests and the netizens believed that such screening is taking away their freedom to speech and expression. There have been instances where the free speech may actually seem to be a hate speech.

Not just ‘screening’ or censorship but most recent cases involve common people being arrested for posting posts on SNS which are alleged to be against the harmony and peace in society. The Information Technology Act of 2000 has been amended in 2008 and recently in 2011. However the act still remains obscure. Most recent controversies surround Section 66A of the IT act. The section reads as follows:

66A.Punishment for sending offensive messages through communication service, etc.: 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; or

(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 purpose 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.

The Information Technology Act is serving as a convenient tool to curb free speech. Due to it unclear and ambiguous language is leading to misuse of the law by the authorities. Many people have been charged under this section and have been arrested. It becomes difficult in such a situation to see how and when a situation does become grossly offensive. The section is flexible enough to be used as and when felt like using. Some terms used in the section are not legal standards; they are subjective indicators of personal sensitivities, while still others though legal do not figure in Article 19 (2). With such ambiguity it becomes hard for the common people to actually use their free speech on the internet. Law works on the principle of ignorantia juris non excusat but when the law itself is so unclear it is unreasonable to expect the people to know the law because. It could plausibly be argued that Section 66A, as it stands, is unduly restrictive of free speech. The recent cases underline the weakness of the section further.

Recently a Puducherry activist was arrested for alleging on Twitter that the Union Finance Minister’s son had “amassed more wealth than Vadra”. A mere email complaint from Karti Chidambaram was received and the police arrested the activist. Again in November 2012 two Air India cabin crew members were arrested for sharing lewd jokes about politicians, made derogatory comments against the Prime Minister and insulted the national flag in their posts. However the accused contended that they had merely shared content easily available on the Internet. That prompted a past-midnight police raid at their homes and arrest under 66(A) and 67 sections of the Information Technology Act.

The problem came to lime light with arrests of two girls for the facebook status against the shut down in Mumbai on the occasion of the death of Mr. Bal Thackeray. The status was liked by the other girl. The girls were arrested under section 66A of the IT act allegedly for hurting religious sentiments of people. There were protests against the arrest and the matter was taken up by the Maharashtra government which finally lead to dropping of the case against them. Looking at such frequent arrests and such obscure law a PIL has been filed in the Supreme Court of India and the judges have shown support for the same.

The cases clearly show that there is misuse of the law. The people have been sacked because of their criticism to certain event or person on the social networking sites. However in L.I.C. v Manubhai D. Shah[15] it was held that giving an admirer the opportunity to express himself but denying the same freedom to a critic is to throttle the democracy. Also in S. Rangarajan v P. Jagjivan Ram[16] the court discussed at length the duty of the state to provide freedom of speech and expression to its citizens. The court held that “But he has a right to “think out” and put the counter appeals to reason. It is a part of a democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however, hateful to its policies. If one is allowed to say that policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support the governmental scheme, the other could as well say, that he will not support it…”. It was further held that freedom of expression cannot be suppressed just because there are threats of demonstration and processions or threats of violence since doing so would be against the principle of the rule of law. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State and hence the State cannot plead its inability to handle the hostile audience problem.

However it seems the arrests of common people in the recent cases give a very different picture of the State’s willingness to protect the difference of opinion that people hold. The judiciary may lay down the clearest guidelines but unless there is a mechanism for ensuring that the police adhere to them before setting the criminal law in motion it is feared that the right to free speech will continue to remain imperiled.

Conclusion

Although every person has a right to free speech it is important to draw a line. It is important to put restrictions because the complexities in the world in which we live are too much. In a globalised world like ours the social networking sites keeps the entire world interconnected. An action in one part of the world affects the entire world, for example Slut Walk was not a country specific movement but a movement witnessed in many parts of the world and got huge support and motivation over social networking sites. No doubt regulating such a space where there is a huge population, the people belong to different cultures, having different ideologies and interest and have different nationalities, is difficult and a labyrinth.  Speech on social networking sites is a comparatively new phenomenon for India to deal with. However there is a need to legislate a reasonable law for the purpose. One cannot be restricted to exercise her right to free speech on the social networking sites because it ‘may’ cause some problems.

The law cannot be arbitrary and do whatever it feels right at the moment. Law is a process in itself, it keeps evolving but the interest of the people has to be taken care of. The cyber space cannot be left alone to people’s discretion. The freedom of speech has to be regulated but not ambiguously. The sections concerned are vague and provide no concrete way to handle the problem. As commented by Justice Katju “we are living in a democracy, not a fascist dictatorship” hence such arbitrariness of law is not justified. The only way we have of preserving freedoms and removing ambiguity is to clearly distinguish ideologies from acts that are considered against the word of law. The need of the hour is to strike a perfect balance between citizen’s freedom of speech and expression and the state’s duty to see that this right is not being misused.

However problems like ‘hate speech and expressions’ have to be controlled. Since the internet has a larger audience the effect of any speech or expression made online is massive. Any ambiguity in the law should be dealt with and the definitions and limitations to the freedom of expression on the internet should be made very clear. The problem is not merely that of limiting the freedom of expression but also that the state is intervening in the ‘private space’ of the netizens since the internet has come to be used as a private cum public space by the people. Therefore there is also a need to mark a difference between these two spaces on the internet. The limitations as per Article 19 (2) of the Constitution of India should be applicable to the public posts on the internet, as these are the reasonable restrictions.

Freedom of any kind comes along with various responsibilities too. As the people cannot be stopped from exercising their rights these rights cannot be absolute. The state should have a responsibility to protect people’s rights and the people should use their rights responsibly.

By: Bhawana Tiwari

References

[1] Mill, John Stuart, On Liberty,  London: Longman, Roberts & Green, 1869

[2] As adopted by the member nations on 10th December 1948

[3] Came into force in 1967

[4] Adopted and ratified by General Assembly resolution 2106 (XX) of 21 December 1965

[5] As adopted by the UN General Assembly in 1979. It is also known as International bill of rights of women.

[6] Adopted by the UN General Assembly in November 1989 and came into force on 2nd September 1990

[7] http://news.bbc.co.uk/2/hi/technology/8552410.stm as visited on 20/11/2012

[8] http://www.internetworldstats.com/top20.htm as visited on 20/11/2012

[9] http://www.bbc.co.uk/news/business-16354076 as visited on 1/12/2012

[10] AIR 1950 SC 124

[11] Indian Express Newspaper v UoI AIR 1986 SC 515

[12] 1993 AIR 171

[13] Austin, Glanville, Working a Democratic Constitution: The Indian Experience, (OUP, 1999, Delhi) p.13

[14] Hobbes, Thomas, Of Man, Being the First Part of Leviathan, Vol. XXXIV, Part 5, The Harvard Classics, New York: P.F. Collier & Son, 1909–14

[15] 1993 AIR 171

[16] 1989 SCC (2) 574

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