This article is written by Devanshee Rai from NMIMS, School of Law, Bengaluru and is edited by Gitika Jain. This is an exhaustive article which focuses on internet censorship and misuse of freedom of speech and expression.
The Internet is the largest public platform which is used for various purposes such as data and information sharing, doing business, etc. It is a worldwide platform for various networks. With so many different opportunities and information coming on a single platform there should be a medium to control or prevent its misuse. To prevent misuse, the concept of internet censorship was introduced. Internet censorship can be defined as the control and/or suppression of what can be accessed, viewed and published on the internet. Mainly it is controlled by the governments of various countries, but this can also be carried out by private organizations and individuals for moral, religious or business reasons. The internet is censored just because it prevents any kind of outbreak in society, defamation, invasion of privacy, etc. The outbreak in society can be political, religious, or business-wise.
Earlier, the Internet’s informal name was ‘Information Superhighway’ because it was the way to provide limitless data to any person and any amount of data could be acquired. One of the many benefits of internet censorship is the prevention of children from adult content present on the internet that is very inappropriate for the children and their mental growth. The scope and intention of the authority is to attempt control over the nation’s access to information. According to Article 19(1)(a) of the Indian Constitution, all citizens have the right to freedom of speech and expression. Freedom of speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode. The following are the areas of censorship:
- A legal concept, copyright that deals with the rights of the original work and save it from plagiarism.
- Censorship looks after the prevention of defamation that could bring down a person or their product’s reputation in the market.
- Censorship makes sure that a person does not face any kind of harassment that could affect him mentally as well as physically.
- Censorship also looks after the inappropriate content that could raise uproar in society with respect to religion, culture, or traditional aspects present in society.
The primary purpose of internet censorship
In today’s times, the internet has a plethora of information that can be accessed by anybody and at any time. The data that is available on the internet provides information, home delivery services, data that is important to multinational companies. The data that is present on the internet is not only beneficial to teenagers or adults but also to elderly people. People can share their views and opinions on any platform because of the internet. People have been provided with a great amount of freedom of speech and expression. They can give their opinion on any topic related to any field (for eg, politics, arts, entertainment, sports, philosophy, etc.) unless or until their opinion or views do not affect another person mentally or physically. To handle such types of situations, Internet censorship is necessary. The amount of data that is present over the internet needs a check. One could not possibly keep a check on all the bad, obscene, dirty, and dangerous data that is present on the net.
Pros and cons of internet censorship
The pros of internet censorship are as follows:
- Internet censorship helps to eliminate misinformation present everywhere. Misinformation present online is basically fake because of the fact that people can easily give their opinions on the website without having proper knowledge about the particular topic.
- Internet censorship can help to limit trafficking activities and the adult content that is present on the net. In today’s times, privacy issues have reached an all-time high because many multinational companies have their eyes on an individual’s personal data for their respective beneficial purposes. A place on the internet is called a dark web where personal data(medical records, social security numbers, etc.) of people which are mostly stolen can be sold at a price. This place mostly contains child pornography, hate speech, sex trafficking, etc. Internet censorship can easily control and detect their place of origin.
- It plays a positive role in the security of an individual. The personal data that is available on the website can be sold at a certain price. Most of the data that is present online is not illegal but it can lead to more dangerous things but at the end of the day, it is still an invasion of privacy.
- One of the many advantages of internet censorship is that it limits the content that is below the moral standards. The content that is available on the dark web might be offensive and disturbing to some individuals. On 15th March 2019, Facebook live video was streamed in which two consecutive mass shootings were shown by an individual in New Zealand that showed his anti-immigrant moves. These videos could easily disturb any individual’s mental health. Posts like these have been steamed online since forever. One more such post was that of a sexual assault by three men on a private Facebook group. Posts that are available on social media platforms can be offensive to some people or offensive to some communities which can be reported which is another blessing of internet censorship.
- To cope up with today’s world, internet censorship guides us. As a part of the job of an international company, on the legal front, there are responsibilities that companies often try to comply with under the regulations of Internet censorship. To work according to the global norms, the companies should try to focus more on the local laws. For eg, in 2017 any website that was against national security and interest was banned in Egypt. These days even the popular social media platforms like WhatsApp are censored. There are certain rules for the message ‘forwards’ in these messaging apps. When it comes to national interest and security, freedom of speech and expression can be restricted.
- Internet censorship plays a very important role when it comes to national security. Nobody can really stop such activities because everyday hackers come up with new technologies but the least internet censorship could do is to make laws when a certain provision is broken. Government/regulators via internet censorship can easily make laws and provisions that everybody has to follow and if not followed then that could lead to penalties.
The cons of internet censorship are as follows:
- A group of people, i.e. the regulators, get power over another set of people. There should be an organization that looks after the internet censorship where things can be reported, otherwise, it becomes a situation of monopoly. The person who sets the criteria of internet censorship cannot be censored or one cannot censor their views. The defect of this kind of authority is that a set of people get authority over another and there is nobody to monitor the things they do and what their ideas of social control and moral standard are.
- Internet censorship is very costly. The countries that have internet censorship, it costs them a fortune to maintain it.
- The information is controlled. According to a survey done by the World Economic Forum, internet censorship is common to one out of four people in the world who are using the internet. Many people face penalties because of their online conduct. If the nation has stricter laws with respect to internet censorship, then the people of that country face penalties for trivial actions also.
- Economic availability and opportunities get hindered by internet censorship. Any country that follows internet censorship, requires an individual to undergo the process for approval of their content so that it can get published. This means that any creative or business mind has to get approval for his project from a government official. There are chances that the official may not understand the work of the person.
- Freedom of speech and expression gets restricted. In the context of internet censorship, the freedom of speech and expression comes on edge when the government sometimes makes internet censorship laws that are just beneficial for their party which leads to dictatorship. Political parties in order to politicize and promote their agenda, they snatch the freed44om of speech and expression from its citizens.
- The intelligence level of the citizen gets lowered. When people are accustomed(which basically happens when they consume the same content again and again) to think in a particular way, a new normal is created which is what the regulators want the citizens to believe in. Society would become numb to the information they see all over the internet.
- Citizens tend to behave in a certain manner that is just because they are socially controlled. In order to control citizens and want them to behave in a manner so that they would follow a standard social control, internet censorship comes in handy.
One of the many examples of negative usage of internet censorship when Saudi Arabia made a request to takedown a certain show because it was not fit for society. Now it is the government who gives permission as to what type of content their citizens would consume and whether the show stands up to their societal norms or not. This is just a sheer way how a government controls its citizens and their mindsets. They are doing this just to be in power.
After going through the pros and cons of internet censorship, societies need to understand that freedom of speech is just like a shell without a substance. Most of the time, the abuse of freedom of speech and expression can be a double-edged sword. There are numerous cons of internet censorship but for the pros, any cost is payable.
What are the restrictions on freedom of speech and expression
Owing to the restrictions that should be imposed on the freedom of speech and expression so that we can prevent unrest in the society, clause (2) of Article 19 lays down the required restrictions. Pertaining to these restrictions, the tool of internet censorship can be used to remove or alter the content available online.
With respect to Article 19(2), when it comes to the security of the state, the freedom of speech and expression can be restricted. ‘Security of State’ means war against the State, rebellion, insurrection excluding any riot and unlawful assembly. This concludes that when it comes to the safety of our nation then freedom of speech and expression can be restricted.
Incitement to an offence
Through the Constitution (First Amendment) Act, 1951, this provision was added. The right to incite people to commit offense cannot be protected by Freedom of speech and expression.
Friendly relations with foreign states
This criterion was added by the First Amendment itself in 1951. This was added so that people cannot misuse their right to freedom of speech and expression which may hinder the country’s relation with other foreign states. In India, the Foreign Relations Act(XII of 1932), provides punishment for libel by Indian citizens against foreign dignitaries. However, the interest of friendly relations with foreign, would not justify the suppression of fair criticism of the foreign policy of the government.
In the First Amendment Act itself, ‘public order’ was added. ‘Public order’ has a wide scope when it comes to the foundations of meaning. The resultant of internal regulation that has been enforced by the government is public order. Public order is not just the maintenance of law and order, it is much more than that. Civil peace, security, and tranquility are synonymous with public order. The test for certifying whether the act is up to the standards of public order is by monitoring whether the act is hampering the current life which the society has established or if it disturbs merely an individual then its not disturbing public order.
Anything and everything that disturbs the functioning of society or disturbs public peace is disturbing public order. The absence of violence and in which people can lead a normal life peacefully is a mere implication of public order. Public safety is a subset of public order. ‘In the interest of public order’, it basically includes utterances as are directly intended to lead to disorder along with those that have the tendency to lead to disorder.
Therefore, certain laws are made so that they could restrict the intention to hurt the feelings (religious, social, etc) of other people. Such laws restrict freedom of speech and expression of certain people or communities but are underdone to maintain public order.
Defamation is basically when a person’s reputation comes to a stake or is triggered, that leads to defamation. It can be in a written or oral form.
Contempt of court
Contempt of court is basically when you insult or degrade the order of the court except when you analyze the judgment passed by the court. There are two types of contempt: civil contempt and criminal contempt as mentioned in Section 2.
Decency or morality
From Section 292 to 294 of the Indian Penal Code, many restrictions have been laid down in the name of decency and morality. The word decency and morality have a bigger scope in terms of its meaning. These words have a particular standard that prevents the spread of obscene and questionable content.
It is not mentioned under clause 2 of article 19 as a criterion for restriction on freedom of speech and expression. But in English Law, whenever a person or a group of people through their writing or action tries to subvert the government, then the community faces the penalties as per law for not abiding by the restriction on freedom of speech and expression.
Social media: a battleground for reckless use of free speech
Social Media has been a blessing when it comes to sharing views, opinions, and photos but few people have been misusing this platform. The victim of this misuse has been mostly women who face regular trolling which is mostly based on gender, religion, caste, or marital status. The problem of trolling is more problematic in India than in the United States and the United Kingdom. The trolling faced by Muslim women are 55% more.
Fake news is one of the ‘curses’ of social media. Mob Lynching is also one of the results of fake news. It spreads fear among people and the government always tries to prevent it from spreading. Their methods of internet censorship include rebuttal, spreading awareness among citizens, fake news elimination, etc. Rebuttal basically means a method in which the authenticity of fake news is checked. If the news article is proven fake then the particular news is removed from the social media platforms. Companies such as WhatsApp, Facebook, Youtube, etc have been constantly pressurized to remove fake news from their platforms. One such effort was shown by WhatsApp when they introduced the concept of the forwarded message.
Social media is often used to promote political parties’ authoritarian agendas which are mostly used to convert it into a positive public opinion. These agendas are used in elections which put democracy at stake. The propagation of such agendas really affects the results of the election. Such a thing happened a few years ago when a company named Cambridge Analytica took personal information of Facebook users without their consent to influence their voting preferences.
Challenges against internet censorship
Internet censorship has been present for about 67% of all internet users in one form or the other. The number of social media users has been increasing since forever and so are their activities, and among these social media users around 27% of users have been arrested because of the content they have posted online. Due to the misuse of social media platforms, there are many government organizations who are monitoring the activities of social media users. For the past six years, there has been a decline in freedom of speech and expression on social media platforms. This has taken a step further by monitoring the voice and video calls. With the decline of such activities, there has been a decline in the digital economy as well.
The challenges against internet censorship are as follows:
There would be a decline in the digital economy
The digital economy can only grow when there is no fear of restrictions and backlashes and consequences to the business community. There should be a proper growth policy so that the companies can work without fear. Some countries have put forward some restrictions on the messaging apps so that the local telecom companies do not get affected. The fear is born from the thinking that the local telecom companies cannot progress with the old policies. But then they forget that these new apps can actually help these companies to grow because of their innovative ideas that are suitable for the new world.
Business innovation and technological innovation will face deterioration
The restrictions that are imposed to promote local companies, can actually lead to slower growth of other telecom companies. The restriction that is imposed on the new companies can actually harm the local companies as they will not be able to benefit from innovative ideas and do some progressive work. Maybe small businesses would not be affected by such restrictions but big businesses would be really affected and that would be shown by their hampered day to day work.
Access to information would be restricted
Due to internet restrictions, citizens would not be able to have access to information that would obviously affect their careers, business adventure, or even when they want to gain knowledge about any topic. People who have power and money can only be able to access the internet without any restrictions.
Globally, the freedom of speech and expression has a long way to go and we are at a crucial point when it comes to technological advancements, innovation, and development. Having an open market environment is helpful for many startups for their success.
Critical analysis of striking down internet censorship law
A judgment was passed by a two-judge bench in 2015 which struck down the Section 66A of the Information Technology Act, 2000. In Section 66A of the Information Technology Act, 2000, the terms used were vague which were being misused for personal and political motives. The freedom of speech and expression was completely at stake due to this section.
In Shreya Singhal v. Union of India, Section 66A of Information Technology Act, 2000 was struck down because it violated Article 19(1) of the constitution of India. The law was used by citizens for their personal and political motives to take advantage of its vague and broad meaning. This was a controversial law under which posting offensive comments, posts or messages could have led to jail. It was repeatedly used by police in a malicious manner. The term was approved by the president. One of many such cases was when a cartoonist was detained for making a cartoon of the Chief Minister of Bengal. In 2012, after the criticism of the shutdown of Mumbai two young women were arrested and one of them got arrested just for ‘liking’ the post. This type of law was a blot on the constitution.
Due to Section 66A, citizens of India were not able to criticize the government or disagree with the government. The two hundred page judgment deals with the issues of online censorship. Almost 200 million are there in the South Asian region which is the third-highest of the total internet users but there are no such adequate laws have been made to stop the misuse of the internet.
Internet censorship has been a roller coaster ride that has many ups and downs. Ups(pros) and downs(cons) have been discussed earlier. For a democracy, freedom of speech and expression is a very vital component. There should be a right balance between freedom of speech and expression and other components such as privacy, security, etc. So far, internet censorship has not been up to expectations and it is quite inadequate. Politicians and businessmen have always been benefited whether there is a law or not regarding freedom of speech and expression. Blocking of content for the political benefits or theft of personal information is also a violation of freedom of speech and expression. There should be a law that is transparent enough which citizens can trust with their personal information. Personal information of the citizens often gets stolen for their voting benefits, preferences, etc. To enable freedom of speech and expression properly in this country, there should be certain changes that a government should follow.
To allow proper functioning of freedom of speech and expression through internet censorship are as follows:
- Citizens who give genuine information about politics or any other controversial topics should not be prosecuted. They usually voice their opinions or views on the internet through debates, posts, and discussions.
- Posts that are about genuine and true content should not be taken down. This act is just violating the freedom of speech and expression in India. Mere disagreement with the government should not be a criterion for violating the freedom of speech and expression in India.
- The IT laws should be updated on a periodic basis to tackle the new issues.
- The government should not handle the takedown request without the order of the court. This right shall lie only with the court.
- Internet Censorship laws should be properly made after seeing the pros and how to tackle the cons.
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