This article has been written by Nikara Liesha Fernandez, from School of Law, CHRIST (Deemed to Be University), Bangalore.

Introduction

‘We realize the importance of our voice when we are silenced’- Malala Yousafzai.

In an age where our generation, in particular, is experiencing a technology boom and where the fine lines between constructive criticism and ‘hate speech’ are beginning to merge, one begins to question whether we really have the right to exercise our freedom of speech and expression in a true sense. The digital era has brought along with it countless benefits, however, that is not to say it does not have its fair share of problems as well. Questions on issues such as accountability and traceability without invading one’s privacy in the digital ocean are trying to be solved by various countries through numerous laws including the employment of artificial intelligence tools which aim at regulating the digital cyberspace, though some questions still remain unanswered due to the dynamic and constantly evolving nature of the internet.

In the case of Indian Express Newspapers^[1], the Court highlighted that ‘the freedom of expression serves four broad social purposes:

1. It helps an individual to attain self-fulfilment;
2. It assists in the discovery of truth;
3. It strengthens the capacity of an individual to participate in decision making; and
4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. 

Freedom of speech and expression as stated in the Indian Constitution

Freedom of speech and expression is the very first fundamental freedom guaranteed by the Constitution of India to all its citizens under Article 19(1)(a). This is not an absolute right and is subject to certain restrictions which have been enumerated in Article 19(2). This right, however, has been the fountain that has given rise to many further rights which come under its ambit which have been reiterated by the Supreme Court in various cases over time such as the right to information, the right to freedom of the press and the right to freedom of opinion.

The right to freedom of opinion is inextricably linked to the principle of democracy enshrined in the Preamble to our Constitution. The digital era has provided for larger and faster circulation of a plethora of information presenting the different views, opinions, creativity and thoughts of people all over the world.

The significance of the same in our country in particular, has facilitated the circulation of productive criticism of the government and its policies as well political campaigns especially during the elections. The benefits of the same are immense but have also been seen in a negative light by many especially those in power as they often brand any comments against them as ‘anti-national’.

The discrepancies between an anti-national and a critique have become indistinguishable and this is a significant point of friction between the public and the government, especially in the digital era with users on many social media platforms such as Twitter, Facebook and Instagram, being able to find a common cause and voice to express their views.

Effect of the IT Rules, 2021

The recently released Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have caused a public furore and a lot of controversy with the majority public opinion being that these rules are unconstitutional on numerous grounds, fundamentally on the ground of violation of the right to free speech and expression. Through these rules, the government has brought OTT (over-the-top) platforms showcasing films and audio-visual programs published by online content providers as well as the platforms which showcase news and current affairs content on them under its wing.

Though the government defends this move by stating that there was a need for such rules to be made as there was an increased number of complaints regarding the content published on such platforms which hurt the sentiments and were offensive to individuals such as scenes containing violence, nudity, obscenity, indecent representation of women and child sex abuse material. Additionally, there was also content that hurt the religious sentiments of people. Prior to these rules, there existed no robust grievance redressal mechanism to effectively address the complaints of the masses.

Although the government expressly mentioned in its press release that these rules did not in any way seek to curtail the freedom of speech and expression of individuals as they recognized and respected the importance of the same including the need for government criticism in order to keep alive the essence of democracy, on scrutiny of these rules, the true motive of the government is questionable. For example, in certain emergency cases, on receiving direction from the government, intermediary platforms (such as Instagram, Twitter and Facebook) must take down the content of a particular user without any warning or giving them a fair hearing or opportunity to defend themselves.

The grounds on which the government can make such orders are not given either nor are the reasonable restrictions on the content which is permissible on these platforms clearly defined. This ambiguity leaves the free voices of the users of these platforms at the mercy of the government’s whims as any speech that the government remotely construes as directed towards them in a negative light can automatically be morphed into ‘hate speech’ or ‘fake news’.  

In a country of over 100 crore people, it is imperative for the freedom of press to prevail especially in the area of criticism of the Government to prevent totalitarianism. The rules, under the premise of catering to the safeguard of the people of Indus’ sensibilities and traditions, seek to ‘regulate’ this freedom however, by imposing such vague restrictions on such a broad area of categories, this seems more like an act of censorship which will have a chilling effect on the right to free speech and expression. Certain issues need to be depicted by these OTT platforms and intermediaries as this spreads awareness on certain realities and social evils which can only be prevented through circulation among the masses.

Before the passage of this Act, the specific number of complaints received by the Government was merely 171 complaints with 80 counter comments to the same. This is grossly disproportionate to the population of the country. The Government thus has not followed due diligence and held adequate consultations with the public to gain a justified consensus on the issue.  This is highly dangerous as it shows a rash move taken by the Government which begins to encroach upon the democratic essence encapsulated in our Constitution as well by not giving due importance to public thought and opinion.

Are the ‘reasonable restrictions’ on the freedom of speech and expression really all that reasonable?

The case of Shreya Singhal v. Union of India^[2] dealt directly with the freedom of speech and expression in the digital era. Through this case, Section 66A of the IT Act^[3] was declared as unconstitutional and invalid. In brief, Section 66A of the IT Act stated that ‘any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.’

The court, in this case. held that the above law was unconstitutional on substantive grounds and that as the terms in the above provisions were broad and undefined, it sought to cover ‘a very large amount of protected and innocent speech’ as terms like ‘annoyance’ and ‘inconvenience’ could not be deemed to fall under Article 19(2) which deals with reasonable restrictions on the grounds of issues of more gravity. It was concluded that this article sought to limit all forms of internet communication and thus the above restrictions from Section 66A of the IT Act, indeed had a ‘chilling effect’ on the right to freedom of speech and expression and were unreasonable in nature.

Importance of the internet in upholding the right to information

The case of Anuradha Bhasin^[4], led to the landmark judgment by the Supreme Court of India on whether the internet shutdown and restrictions on movement by the Government in the State of Kashmir where it dealt with whether the fundamental right to freedom of speech and expression extended to the internet as well and questioned the validity of the internet shutdown in light of the same keeping in mind the restrictions under Article 19(2).

The court enumerated Article 19(2) which deals with the ‘reasonable restrictions’ which can be imposed on the freedom of speech and expression, and how the right to information formed an integral part of the right to freedom of speech and expression. The essence of the court’s judgment in the above case was that indeed the right to freedom of speech and expression was to be exercised by every individual and the extent to which the restrictions on the same could be imposed could even be one of complete prohibition.

However, if complete prohibition was imposed by the state on the exercise of this right then the State would have to take absolute care to ensure that the prohibition should not excessively burden free speech and why lesser alternatives could not be employed. The proportionality test was established by the Court to assist the government in gauging the restrictions before imposing them in the future.

Online expression, being one of the main sources of information diffusion, the court even reiterated in its judgment that the freedom of expression guaranteed under Article 19 extended to the internet and thus a complete shutdown of the same would have a negative effect on the circulation of free speech and expression.

Conclusion

There is no doubt that fake news abounds in society especially through digital means such as Whatsapp forwards and morphed videos and pictures which urgently needs to be put in check by the authorities. However, the manner in which they seem to be going about the same might not be the best possible approach. The government needs to exercise its power cautiously so that it can avoid facing flak from society on its apparently arbitrary measures.

As stated by the Court in the case of Romesh Thappar^[5], the circulation of ideas through press media upholds Article 19(1)(a)^[6]. Like any situation, the era of digital media can be looked at in two ways- as a blessing or as a boon. For example, the recent ban of Chinese applications by the Central Government on the grounds that the applications were ‘prejudicial to sovereignty and integrity of India, defence of India, security of state and public order’^[7] have been seen in a positive light by some but others claim that it is a move that is violative of the right to freedom of speech and expression as the ban included various social media apps which had a major user base in India.

Therefore, along with the government keeping its powers in check we must also make the most of the digital era for positive purposes only and not take advantage of the freedom it gives us through a click of a button. In the absence of any data protection laws in our country, it is imperative that the legislature, executive and judiciary take steps to pass and implement laws which adequately make the digital world a safe space for the public while simultaneously ensuring that their freedom to speech and expression is not encroached upon in any way.

The first step towards the same would be to proactively garner the public opinion (which can be easily facilitated thanks to the digital era) as to what they, as the primary users who voice their opinions on the digital platforms find are areas where they feel their freedom of speech and expression are being inhibited so that the regulating authorities can meet their demands at the middle while simultaneously imposing truly reasonable restrictions on the same to maintain public law and order.  

References