Freedom of Speech in the digital Era

Introduction

The realm of free speech and expression in the digital age is facing an unpleasant scenario. It is facing difficulties because of its complexity as well as advancements in this field. People now have the freedom to freely and widely express their opinions on a wide range of topics thanks to the evolution of numerous platforms, which have included news portals, social media sites like Facebook, Instagram, Twitter, and others, information platforms like Yahoo and Quora, and media sharing platforms like YouTube and Spotify. The propagation of false information and widespread propaganda that equates to hate speech is one of the many dangers associated with this freedom. This article explores in further detail Article 19 of the Indian Constitution, how it safeguards people’ freedom of speech and expression, what reasonable restrictions it imposes, and the difficulties it has in light of the evolving nature of information dissemination in the digital age. This article examines how, under the protection of article 19, free expression may be preserved while striking a balance between the risks of misinformation, slanderous remarks and hateful speech and the unfettered flow of ideas.

Legislations on Freedom of speech and expression

The cornerstone of every democratic society on the world is freedom of expression. At its core, free speech is the ability to communicate openly and to receive information from others. It is regarded as the primary prerequisite for liberty.

The definition of freedom of speech and expression is found in Article 19(1) (a) of the Indian Constitution, which guarantees this right to all Indian citizens. This article derives its basis from the Preamble of the Indian Constitution, “where a solemn commitment is made to secure to all its citizen, their liberty of speech and expression.” 

However, under Article 19(2) of the Indian Constitution, reasonable restrictions for specific purposes may apply to the exercise of this freedom. 

Article 19-Protection of certain rights regarding freedom of speech, etc.:

1. Every citizen is entitled to the freedom of speech and expression
2. None of it in clause (a) of clause (1) will interfere with the enforcement of any currently in effect laws or prevent the State from passing new ones, so long as those laws appropriately restrict the enjoyment of the rights conferred by those subsections in the interests of public order, decency, morality, friendly relations with other states, sovereignty and integrity of India, defamation, contempt of court, or incitement to an offence. 

The advent of the internet era has expanded the scope of free speech, allowing persons to openly express their perspectives, thoughts, and beliefs. However, in this advanced era of digitalization, individuals are expressing thoughts, beliefs, and ideas that frequently amount to hate speech against figures, sects, and groups, or disseminating disinformation, which has dangerous consequences for the freedom they have been granted. As we can see, the digital era not only expands the opportunities for free expression, but it also introduces new obstacles such as online intimidation, cyber attacks, disinformation, and so on. A paradox arises here as a result of attempting to balance unrestricted free speech, or liberty, with digital accountability in order to avoid these risks. 

The article affirms the value of free speech, while digitalization serves as a stimulant for the transmission of public opinion. However, this article is a living thing that evolves in response to the state’s current conditions. It understands that it is not an absolute right because it may lead to digital strife, and that some concerns necessitate a cautious approach, as well as sensitive themes and locations that must be handled with sufficient prudence and the application of reasonable limits.

Reaffirming the constitutionality of the right to free speech and expression on the Internet

Shreya Singhal v. Union of India

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 communicates any of the following using a computer resource or communication device: 

1. Information that is overtly offensive or threatening;
2. Any information indicating he regularly utilizes a computer resource or communication tool to spread false information that he knows to be untrue in an attempt to annoy, inconvenience, endanger, hinder, insult, harm, criminally intimidate, or sow discord or hatred,
3. There is a fine and a maximum three-year jail sentence for sending any electronic mail or electronic mail message with the intention of upsetting, inconveniencing, or misleading the recipient or receiver about the communication’s origin. 

Misuse of Section 66A of IT Act, 2000

Ambikesh Mahapatra, a chemistry professor at Jadavpur University in West Bengal, was detained in April 2012 for uploading a caricature of West Bengal Chief Minister Mamata Banerjee on social media sites. In May 2012, the Mumbai Police detained two Air India employees for posting anti-trade union and political material on Facebook and Orkut. They were held in jail for 12 days.  In November 2012, Shaheen Dhada was detained for questioning the closure of Mumbai mourning the death of Shiv Sena supreme BAL Thackeray in a Facebook post that was “liked” and circulated through her friend Renu, who was also arrested by Thane Police in Maharashtra.

Due to the widespread misuse of Section 66A, a writ petition challenging the constitutionality of the section has been filed in the Supreme Court in the form of public interest litigation. The argument made in this petition is that the wording of the contested section is so ambiguous and wide that it cannot be judged according to objective criteria, making it vulnerable to willful abuse and in violation of Articles 14, 19 (1) (a), and 21 of the Constitution.

As a result, Shreya Singhal v. Union of India acquired the case name.
The Information Technology Act, 2000’s Section 66A was completely invalidated by the two-judge bench of J. Chelameswar and R.F. Nariman because it violated Article 19 (1) (a) and was not rescued by Article 19 (2). 

This was in contravention to Article 19 (1) (a) of the Indian Constitution, which guarantees the right to freedom of speech and expression.
The expressions such as ‘annoyance’, ‘inconvenience’, ‘danger’, ‘obstruction’, ‘insult’, ‘injury’, ‘criminal intimidation’, ‘enmity’, ‘hatred’ or ‘ill- will’ are a variety of words that fall beyond the definition of reasonable limits as stated in Article 19(2) of the Indian Constitution.
This demonstrates that Article 19 is given first priority protection, granting every person their freedom even in the event that it must deem some parts to be unconstitutional.
It does, however, also provide for the application of reasonable restrictions to ensure the right of recourse. 

Evolution of Article 19 of the Indian Constitution

1858-1947

Indians’ rights were completely in jeopardy throughout the colonial era. The Indian people’ freedom of speech and expression was truly restricted by the horrors committed by the British Empire. The British used every tool at their disposal to repress Indian opinion-forming, from the Sedition laws introduced by the English in 1870 to Section 295A of the Hate Speech statute, in an effort to quell the revolutionary emotions that were driving the people to wage an independence battle. The Seditious Meeting Act of 1907, which forbade open discourse and the creation of unions, was also the impetus for the citizens’ recent restoration of their fundamental right to free speech and expression.

1947-1950

Article 19 was introduced in Draft on December 1 and 2, 1948, as well as October 16 and 17, 1949, there was debate over Article 19, Constitution of India 1950. It established the restricted liberties that one is entitled to.

1950-1978

Article 19, the Indian Constitution’s fundamental right, has undergone a thorough evolution that mirrors the social, political, and economic development of the country. There have been significant changes to Article 19 since its inception. These adjustments were brought about by recent amendments, judicial rulings, and societal developments. Finding the ideal balance between personal freedom and governmental authority was difficult at first. However, important rulings aided in the development and expansion of the fundamental rights. Fairness in society is the goal of the law and legal proceedings. Later, fresh concerns like privacy also became more significant.

1978-Present day 

The first step in evolution took place when The 44th Amendment Act, 1978, removed the right to property, one of the most significant and essential basic rights, through Articles 19 (1) (f) and 31. However, the same revision moved Article 31(1) outside of Part III of the Constitution to a new article, Art. 300A. Part XII’s “Chapter IV” on “Finance Property Contracts and Suits” was the title of this section. That being said, this is hardly a “fundamental right.” 

Precedent for free speech rights in India

State of Madras v. Romesh Thappar 

The primary question in State of Madras v. Romesh Thappar was whether the State of Madras’s prohibition of the publication “Cross Roads” violated the petitioner’s right to free expression as guaranteed by Article 19(1) (a). The petitioner might seek a remedy from the High Court first, the court concluded, and then proceed directly to the Supreme Court. Additionally, it was decided that Section 9(1-A) of the Madras Maintenance of Public Order Act, which gave the government the ability to impose limitations on speech and expression in order to protect public safety and preserve order, was unconstitutional since it went beyond what was permitted in terms of restrictions. An important precedent for India’s free expression rights was established by this ruling. 

Right to Information 

Significant modifications to the RTI Act in 2019 led to several adjustments that prompted questions regarding the independence and efficacy of the RTI framework. The modifications made it possible for the national government to set the tenure, pay, and conditions of service for Information Commissioners at the state and federal levels. Opponents said that by weakening Information Commissions’ independence, these changes prevented them from providing an unbiased decision on RTI appeals.

Freedom of Press

Press freedom in India: Although article 19 (1) (a) of the Indian Constitution implies journalistic freedom, it is not stated expressly. The Supreme Court ruled in Express Newspapers Ltd. v. UOI that “In today’s free world, freedom of the press is the heart of social and political discourse.” These days, the press plays the function of the public educator, enabling large-scale formal and non-formal education, especially in developing nations where not all segments of society still have access to television and other forms of contemporary communication. A democratic electorate [Government] cannot make responsible decisions if facts and opinions are not published. The press’s mission is to serve the public interest in this way. 

TV Today network v. Capital TV

TV Today filed a lawsuit for defamation and copyright infringement against the digital news platform News Laundry Media Private Limited in the matter of TV Today Network Limited v. Capital TV and Ors in reaction to several videos and articles that News Laundry had broadcast on its own channels. Justice Asha Menon of the Delhi High Court rendered the verdict.
The Court took into account News Laundry’s capacity to use its defenses of “fair dealing” and “fair comment.” It cited the UK case Slim and Others v. Daily Telegraph Ltd. and Others, in which Lord Denning had said that “even if justification and fair comment are legitimate defenses, their foundation must be an absence of dishonest motivations and bad faith.”

“Even if the information was distorted, biased, or extremely poorly expressed, allowing the public to read all kinds of innuendos into the poorly expressed opinion, the defense of ‘fair comment’ would be a good defense,” the statement reads.

Reasonable Restrictions

The reasonable restrictions on the exercise of the right to freedom of speech and expression are detailed in Article 19(2). This right may be curtailed in specific situations, such as when it violates sovereignty, the integrity of the state, or other important considerations.
Nonetheless, it lies forth a crucial need for the imposition of these restrictions, namely that they must pass the reasonableness test. They should be prudent and serve the overarching goal of preserving democracy, with the least amount of restriction on the right being practicable.
It declares that restrictions on basic liberties must always be commensurate with the goals of the state. 

ALL INDIA BAKCHOD CASE (AIB)

In one instance, in the All India Bakchod case, the cyber police in Mumbai filed a FIR after discovering a meme that denigrates the office of the prime minister. The prime minister’s picture was covered in a Snapchat dog filter in the meme. Even though All India Bakchod (AIB) is most known for its comedic acts, its work has an impact on both the PM and the party. The use of applications like “Snapchat” is permitted by the government, but when this privilege is misused, it attracts term violations. Thus, section 67 of the IT Act and section 500 of the IPC were used to file this act. 

The aforementioned instance makes it very evident that while everyone has the freedom to express themselves freely through memes, doing so might backfire on them if it tends to hurt someone else’s feelings or interests.

Making fun of or insulting someone in person is permissible, but doing it on social media is inappropriate and falls under the category of online defamation.

MUNNAWAR CASE

A comedian was detained in Munnawar S/o Iqbal Faruqui v. State of Madhya Pradesh (2021) on the grounds that he had offended Hindus’ religious sensitivities and the Union Home Minister, Amit Shah. The petitioner said that he never said anything to offend Hindus’ religious beliefs or to disparage Amit Shah. 

The petitioner’s attorney argued that the arrest violated Section 41A of the Code of Criminal Procedure, 1973, and that the charges were unfounded, leading to the issue ultimately being heard by the Supreme Court of India on the petitioner’s request for bail. The petitioner was granted ad-interim bail by the Apex court, subject to the Trial Court’s approval and with an additional requirement that the applicant refrain from engaging in any actions that would disturb public order. 

Even though he wasn’t convicted in the aforementioned instance under 295A, the court did order him to refrain from engaging in such acts, indicating the nature of his actions and the possibility of a 295A IPC booking if they were carried out in an aggravated manner.

Information technology laws in relation to article 19 and contravention between IT laws and freedom of speech

Section 66A of the Information Technology Act, 2000 inserted vide Information Technology (Amendment) Act, 2008 provides punishment for sending offensive messages through communication service, 2008, etc.  

This section was invalidated and declared unconstitutional as it was in violation of the article 19(1) of the constitution in the case of Shreya Singhal vs. union of India 

The segment 66A has been bogged down for the past 7 years. However, even after this ruling in March 2017, in several states, police continue to detain people under this section. In Zakir Ali Tyagi v. State of UP, for example, an 18-year-old from Muzaffarnagar, Uttar Pradesh, was detained for 42 days in UP Jail after posting a comment on the state’s chief minister, Yogi Adityanath, under Section 66A of the Information Technology Act, 2000. 

PUCL v. UOI & ors.

In order to guarantee adherence to the ruling in Shreya Singhal, PUCL filed a Miscellaneous Application with the Hon’ble Supreme Court and hence the case of PUCL v. UOI & Ors.
Through the Application, PUCL has alerted the Supreme Court to the ongoing instances in which defendants are being tried in accordance with S. 66A. Among these instances is State v. Shekhar Rahul Nikam, which is now ongoing before a Nashik judicial magistrate. In this instance, on February 28, 2020, the accused was charged under S. 66A of the IT Act only on the basis of 2010 communications that were deemed “offensive.” The even more disturbing State v. Mohd. Shakir case, which is pending before a magistrate at Tis Hazari Court in Delhi, has also been brought up by PUCL. 

The FIR against the accused in Mohd. Sakri is only lodged under S.66A, and at one of the hearings, the prosecution even told the court that the Supreme Court had invalidated S.66A in the Shreya Singhal case. Nevertheless, the magistrate granted the accused a non-bailable warrant.

PUCL has urged the Supreme Court to take the following actions to stop the continued enforcement of S.66A: a) order the National Crime Records Bureau to gather information from district courts and high courts nationwide about FIRs and pending cases where S.66A has been invoked; b) order the Supreme Court Registry to notify all district courts nationwide to take cognizance of the ruling in Shreya Singhal in all proceedings where S.66A has been invoked; c) order the Supreme Court Registry to communicate to High Courts to collect information from all District Courts regarding the pendency of cases under S.66A within their jurisdiction and issue directives for compliance with Shreya Singhal; d) order Union of India to issue advisory to all police stations not to register cases under S.66A; and e) order the Union of India to notify the public that S.66A has been overturned in prestigious newspapers.

Supreme Court hears PUCL’s application
Before a three-judge Supreme Court bench made up of Justices Nariman, Joseph, and Gavai, PUCL’s plea was heard. With pleasure, the bench gave notice of the application and instructed the Union of India to submit a response within a fortnight. 

Criminal law provisions that contravene with article 19

Some of the criminal law provisions we will be dealing with herein in relation to Article 19 are defamation and sedition.

Defamation

Defamation is defined in section 499 of the Indian Penal Code as- With the exception of the circumstances specified below, anybody who knowingly harms another person’s reputation by disseminating false information about them by signs, written or spoken words, or other visual representations is deemed to have defamed that person.

In India, some meme publishing is considered defamatory. The government acknowledges that the development of memes is permissible in certain situations. Not many are:
A person’s personal matters should not be discussed in any meme that is made.
It can only contain accurate information so as to prevent defamation. 

Case of the Mamata meme

The lawsuit began in a West Bengal trial court when a 14-day judicial detention order was issued that resulted in the Mamata meme case. The uploading of a modified picture of Chief Minister Mamata Banerjee on social media is the subject of this lawsuit. Priyanka Sharma, the leader of the BJP’s Youth Wing, was the defendant. During the court procedures, the defendant’s side argued that Sharma did not really compose the aforementioned post; rather, she only shared it. The fact that Sharma’s post has already gone viral is noteworthy. When the case was appealed to the Supreme Court on the grounds of bail, Justices Indira Banerjee and Sanjiv Khanna’s vacation bench made it quite apparent that there would be no tolerance for any wrongdoing. Although it cannot be restricted at any point, the freedom of speech and expression comes to an end when it infringes upon the rights of others. Sharma was thus given an injunction by the court to apologize for the meme that was circulated at the time of its release.

Thus, Memes are just a picture form of visual communication, from the above case it is well clear that defamation not only includes the creation of interest affecting memes but also sharing of a meme that affects other people’s personal interest,

Humour is not sedition 

Section 124A IPC:

• It defines sedition as an act committed by anybody who, via spoken or written words, signs, visual representation, or any other means, incites or seeks to incite hatred or contempt toward the Indian government that has been formed by law.
• Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.
• Contested jokes are typically evaluated in light of general free speech provisions existing on a domestic level, following international standards such as  those laid out by Article 19 of the Universal Declaration of Human Rights and its regional counterparts in the European Convention on Human Rights (Article 10), the American Convention on Human Rights (Art. 13)

Marathe v. State of Maharashtra

In Marathe v. The State of Maharashtra (Bombay High Court 22), a political cartoonist was accused of sedition (under Section 124A of the Indian Penal Code) in connection with a number of cartoons that propagated anti-government sentiment and allegedly disparaged the Indian Parliament and the Constitution. The Court quashed the charges and issued guidelines for applying Section 124A, stating that a given expression must not only incite the government to “hatred or contempt,” but also “be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder” in order to be considered seditious. 

Kedar Nath v. State of Bihar

A landmark Supreme Court decision on sedition, Kedar Nath v. State of Bihar, examined the parameters of Section 124A in relation to the constitutional right to free speech. The High Court, in particular, emphasized that the only speech that falls under Section 124A’s jurisdiction is speech that incites hatred or disdain for the government and has the potential to cause public disturbance by encouraging or actually causing violence. “Any written or spoken words, etc., which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term ‘revolution’,” is how the Supreme Court interpreted the reach of the criminal legislation in the Kedar case. 

Using this interpretation, the High Court determined that the clause did not apply to “strong words used to express disapproval of the measures of governance with a view to their improvement or alteration by lawful means.”

Following the ruling, the High Court issued a series of directives for police officers to adhere to when implementing Section 124A.
Furthermore, the guidelines state that “comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above” are not covered by this clause. 

Addressing hate speech and misinformation 

Hate speech is defined as “an incitement to hatred directed primarily against a group of people defined by their race, ethnicity, gender, sexual orientation, religious belief, or similar characteristics” in the Law Commission of India’s 267th Report.
Whether or whether a communication qualifies as hate speech depends largely on its context.
It can incite hatred, violence, prejudice, and intolerance, which can be harmful to the targeted individuals and groups as well as society as general.

The dissemination of false information and misinformation in the media is becoming a significant social problem. It is fueling riots and lynchings on the streets, as well as creating a toxic climate on the internet.
In the era of the internet (WhatsApp, Facebook, Twitter), this is a major issue as among India’s 35 core internet users, rumors, altered photos, click bait, motivated articles, unconfirmed information, and stories planted for different purposes spread quickly.
Online rumors have frequently resulted in the murder of innocent persons. 

Examples of misinformation from India –

• Muzzafarnagar riots of 2013: fake video fuelled communal passions 
• UNESCO has declared ‘Jana Gana Mana’ best national anthem in the world (WhatsApp)

The Indian Constitution’s Article 19(1) (a) declares that everyone has the basic right to freedom of speech and expression.
Article 19(2) sets appropriate limitations on this power in order to prevent abuse.
In the interests of public order, dignity, morality, integrity, security, cordial relations with other governments, contempt of court, defamation, or inciting a crime, restrictions are permissible. 

Thus article 19(2) addresses hate speech and misinformation in an effective way as they judiciously restrict the right of citizens to prevent hatred prejudice and disharmony.

Some examples of addressing hate speech and misinformation via legislations are:-

• IPC Sections 153A and 153B: Punish acts that incite hate and animosity amongst groups.
• The IPC’s Section 295A deals with penalizing actions that intentionally or maliciously offend a group of people’s religious sentiments.
• Another option to combat false information is to file a civil or criminal case for defamation. 
• Fake news hurts people and organizations. Defamation suits are allowed by IPC Sections 499 and 500, which provide that anybody who defames another person faces up to two years in simple jail, a fine, or both. 

Balancing freedom of speech and expression to prevent undermining of democracy

The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information.

This is not an absolute right. It empowers the government to pass laws that impose reasonable constraints in the interests of India’s sovereignty and integrity, security, cordial relations with other governments, public order, decency, morality, contempt of court, defamation, and incitement to an offense.

Thus reasonable restriction prevents spread of hate speech and misinformation which would ultimately undermine the true spirit of democracy and the ideals such as fraternity, peace, integrity.

However before applying these reasonable constraints the test of Reasonableness must be conducted.

Evaluations of Reasonable Limitations

The liberties protected by Arts. 19 (1) (a) to (g) are constrained by Articles 19(2) to (6). These limitations rise the broader question of how these limitations relate to the right that they are intended to curtail. It has been claimed that rights, not constraints, are what are essential. However, these remarks ignore the reality that the rights awarded are subject to legal limitations and are not unrestricted. Therefore, being able to talk freely does not imply breaking any laws against libel, sedition, blasphemy, and similar offenses. Once more, the right to assemble is contingent upon it remaining peaceful and not endangering the public peace. 

There is no standard or exact test to judge the reasonableness of any restriction. The nature of the right allegedly violated, the underlying reason for the restrictions, the severity and urgency of the evil sought to be remedied by the imposition, the disproportion of the imposition, and the circumstances at the time should all be taken into consideration by the courts when determining whether a restriction is reasonable. 

State of Madras v. V.G. Row

It was decided in the State of Madras v. V.G. Row case that reasonableness must be assessed using an objective criterion rather than a subjective one, meaning that consideration must be given to the perspective of the typical reasonable man. Furthermore, it was decided that each case must be examined in its whole in order to establish whether or not the restriction in question is reasonable. There are no set criteria or criterion for making this determination. 

Conclusion

Thus, we draw the conclusion that, in order to maintain the spirit of democracy and accord with other democratic norms, citizens’ rights should be balanced with the reasonable use of such rights. Free expression is vital, but we also can’t overlook the digital dilemma. In order to avoid causing strife, citizens must exercise caution and responsibility when using free speech. This is where appropriate restrictions come into play. But these resets should be applied sensibly and in the direction of the desired outcome. Any arbitrary use of these restrictions ought to be seen as a violation of the constitution. It is evident that judges have a responsibility to use extreme caution when utilizing their privileges and to apply restraints sparingly when those rights are abused. Maintaining this delicate balance between moderation and freedom is what will save democracy from imploding.

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This article is authored by Pravleen Kaur student at Maharaja Agrasen Institute of Management Studies, IPU.

Frequently Asked Questions (FAQ)

References

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