Critical Analysis on Existing Restrictions Imposed by Freedom of Speech and Expression on Social Media

Abstract

Social media is a modern media platform where now people get interconnected in a more integrated and lucid manner. In this cyber platform, the feasibility to express the opinions by the public has been widened, therefore forcing to put certain restrictions to ensure fair constitutional governance.

Freedom of speech and expression has been fairly guaranteed by Indian Constitution, but at the same time, imposes certain restrictions under Article 19 (1) (2), to prevent this freedom from having an absolute nature.

We have been witnessing several issues relating to opinion expressions by the public, as well as few public figures. Taking a case of the public; if you scroll through your Insta feed, sometimes you may come across a few dancing reels of some ladies, where many vulgar and obscene comments have been posted below such reels. Such comments can have a negative impact on others, and they get self-encouraged to post such comments and tarnish the image of the victim lady itself. Similar instances happen against public figures, who could be subjected to false accusations.

Although there exist some Legal regulations on social media imposed By Information Technology Act, and most recently, the intermediary rules 2021, whether these are in conformity with Article 19(1)(2) should be critically examined. Further through this Article. The Author tries to Analyse the effectiveness of restrictions imposed by Article 19(1)(2) upon social media.

Introduction

Freedom of speech and expression is one of the most essential kinds of freedom we all possess. An individual shall have the right to speech, and also the right to remain silent. Almost all the procedural laws as well as the Indian constitution have recognized this freedom, and have drafted various laws and rules accordingly.

However, the lawmakers felt that this freedom shall be detrimental if they are not restricted reasonably. By incorporating Article 19 (2)[1], they made sure that this freedom shall be restricted on certain grounds. According to Article 19(2), the exercise of this right can be restricted in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense. According to article 358[2],  during the declaration of national emergency also, 6 fundamental freedoms under Article 19 are also duly suspended; and this includes freedom of speech and expression.

Nowadays, social media is a thriving area of mass media communication, where people can freely express their opinions. Absolute expressions of opinions can pave the way to cybercrimes, such as online stalking, and misuse of private information, and also can be a trigger to false accusations. This is where Article 19 (2) comes into play.

Apart from Indian constitutions, there are other legislations that regulate social media, which mainly are put under the control of the IT laws. But however, these legislations are silent about crimes such as defamation, false accusations, etc.  Also, whether these legislations are in conformity with the restrictions imposed under Article 19 (2) is also to be rechecked.

Through this article, the author intends to critically analyze whether the social media legislations are in conformity with Article 19 (2). The effectiveness of restrictions imposed by Article 19 (2) upon social media, and whether these restrictions on social media during the time of national emergency period are also critically examined.

Social media Legislations and Freedom of speech and expression

Chapter XI of the Information Technology Act, 2000 enlists a series of punishable offenses related to cybercrimes. Section 66A prescribes the punishment for sending an offensive message through communication service. Social Media can be categorized as one of the modes of communication service, although the word ‘social media has not been explicitly mentioned in the section.

The urgency for addressing cyber crimes such as video voyeurisms, Phishing, identity theft, and offensive messages through communication services in the legislations such as the Code of Criminal Procedure, and Indian Penal Code has been mentioned in Shreya Singhal’s case[3]. In this case, whether Section 66A infringes the fundamental right to free speech and expression and whether it is saved by any of the 8 subjects covered in Article 19(2) is questioned. The Hon’ble Supreme court hereby has quoted the decision in Whitney.v. California[4] “fear of serious injury Cannot alone justify the suppression of free speech and assembly”.

But here the question again arises; what constitutes the ‘Fear of serious injury. The eight subject matters mentioned in Article 19(2) envisage the interest of the state as a whole and have fewer concerns about individual rights. As far as social media is regarded, individual rights are affected rather than collective rights. Therefore, if the Supreme court ought to protect individual rights, it shall reconsider its decision in Whitney.v. California, and shall categorize what constitutes the fear of serious injury, in which the suppression of free speech and expression shall be justified.

There was a recent incident in Kerala, where a girl’s reputation and her dignity were tarnished when a man came live on Instagram and showered obscene and vulgar comments about her. Since such an incident is related to defamation, and affects decency, these kinds of actions shall be monitored and strictly restricted. In fact, they can be categorized in the restrictions placed under Article 19(2), since it comes under defamation, intimidation of offense, and decency.

The Information Technology rules, of 2011 have witnessed various criticisms, where these rules were ineffective in curbing the issues like abusive language, defamatory content, and hate speeches. These Rules were supposed to link these offenses with the restrictions imposed under Article 19(2), but they deliberately failed to address it. The algorithms used by these platforms to optimize views and advertisements often fail to distinguish between relevant or useful content and abusive content and fake news, thereby amplifying them in very little or no time[5].

The Recent Developments in the judiciary regarding the directions to the government to impose some restrictions on social media have been developed. In Tehseen. S. Poonawalla .v. UOI[6], the Supreme Court had directed the government to halt the dissemination of Explosive messages and videos on social media platforms, which are of the nature of inciting mob violence and lynching of any kind. In Re: Prajwala[7], the Supreme Court issued the order to the government to frame necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos, and sites in content hosting platforms and other applications. The Judiciary through these cases is trying to restrict the arbitrary freedom possessed by the media and tends to bring it under the purview of restrictions under Article 19(2).

On Account of the above developments, The Information Technology (Intermediary Guidelines and digital media Ethics code) Rules 2021 were released by the Ministry of Electronics and Information technology in February 2021. In these rules, special emphasis is given to women and children, to ensure protection from sexual offenses, fake news, and other misuses of social media.

Rules formed thus proves the conformity to the previous Supreme court observations. According to the new rules, the intermediaries are mandated to remove disabled contents that are against the safety and dignity of the individuals within 24 hours of receiving complaints. According to the government, knowing the “first originator of information” (also known as “traceability”) of messages that cause violence, riots, terrorism, rape, or threat to national security fall under reasonable exceptions to the Right to Privacy – which again is not absolute as per the Constitution[8].

The Rules also contained a regulation under Rule 4, which enlists Additional due diligence to be observed by significant social media intermediaries. Clause 2 specifies the requirement of enabling the identification of the first originator of the information on its computer resource, under an order passed by a judicial court, or an order passed under Section 69[9] by the Competent Authority as per the Information Technology (Procedure and Safeguards for the interception, monitoring, and decryption of information) Rules, 2009. If we observe the proviso clause, such an order has been strictly subjected to the purpose of Restrictions imposed under Article 19 (2). Although along with this proviso, offenses related to women and children are also mentioned, the restrictions based on Morality or decency are still lacking.

Section 499[10] of the Indian Penal Code construes the laws on defamation and through a recent amendment, its applicability is extended to “electronic documents”, where social media platforms are implied. This section can be said to be in conformity with restrictions imposed under Article 19(2).

Restrictions on social media during emergency

Under Article 358 of the constitution, on the proclamation of emergency, Article 19 can be duly suspended. This means that freedom of speech and expression of a person is not guaranteed and can be subjected to absolute restriction, which can even supersede Article 19(2).

The Influence of social media on today’s population has crossed the limits; there is not even a single person who doesn’t use social media in their daily lives. In such a situation, absolute restriction on social media is something unacceptable to the public.

Rule 16 of the IT rules 2021 states that in case of emergency, the Secretary of the Ministry of Information and broadcasting has the power to control the computer sources and block the information, after considering whether such information comes within the grounds referred to in sub section (1) of Section 69 A. This power to block internet content in an emergency situation had been there since 2009, under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, and no change has been made upon this since then. However, under all kind of emergencies where this rule can be invoked is not specifically mentioned in the rules.

This provision has been subjected to criticism from the Opposition Party, terming it as “dictatorial and “a Threat to Democracy”[11], thus infringing the privacy of individuals and free speech prescribed under Article 19 of the Constitution. Before contending it to be Arbitrary in nature, the constitutionality of such power is within the ambit of the restriction placed under Article 19(2) is to be critically examined. What this provision lacks are the clear specification of emergency situations where certain information can be blocked and what kind of information is also ambiguous. It is left to the discretion of the secretary to decide in which all situations and what all information can be blocked.

The General Principles of the rule subject the publisher to take into account the following factors before transmitting or publishing or exhibiting any content affecting the sovereignty and integrity of India that endangers or jeopardizes the security of the state. Detrimental to India’s friendly relations with foreign countries and the contents which are likely to incite violence or disturb the maintenance of public order[12]. This ensures conformity with the restrictions imposed by Article 19 (2) although, it lacks the inclusion of decency and morality factors into consideration.

Coming to state emergencies, whether the state governments can restrict the social media platforms in the affairs of the state is still a debatable question. The complete internet shutdown in Jammu Kashmir, in 2019, before reading down Article 370, has created a lot of Chaos in the entire state, and the constitutionality of such an Act was challenged and subjected to huge criticisms. The Videos and images of women and elderly villagers confronting the military men, with their homes and the 155 mm Bofors artillery guns as a backdrop, began to circulate on social media. Mobile data services were immediately shut down in the entire district, through an emergency order issued by the IGP Kashmir, citing the standard grounds of the “likelihood of misuse of data services by anti-national elements for uploading inciting/objectionable material having the potential of disturbing the public order[13]. Although the justification provided for this restriction is to maintain the sovereignty and integrity of the state, it has already havocked the public order. Such kind of restriction shall be placed, only if the authorities are able to balance the sovereignty and integrity of the country and the public order.

The question of the importance of freedom of speech and expression in social media arises, mainly during times of emergency. With the advent of social media, people come to know about each piece of information, and restricting the use of social media by cutting off internet connection is an improbable attempt on the part of the Government. Whether to categorize the right to access social media as freedom of speech and expression or the right to life and personal liberty is still a debatable issue. In Faheema Shirin .v. Union of India[14], it was held that the right to use the Internet is associated with the Right to Privacy and education under Article 21 of the constitution. Therefore, in emergency situations, restricting internet access would place an indirect restriction on social media, which in turn leads to a violation of the right to privacy. This implies that the government cannot restrict social media on the suspension of Article 19, since accessing social media come under Article 21, which cannot be suspended even during a period of Emergency.

 Conclusion

The influence of social media has been growing day by day. It is an essential freedom in the 21^st century, but claiming it as an absolute right would be detrimental to society. Reasonable restrictions shall be placed upon them, and it can be done in compliance with Article 19(2). Social media has been a blend of various rights; it can be classified under the right to freedom of speech and expression, right to privacy, right to information, etc. each right is categorized under varied situations and whether placing restrictions upon these is reasonable or not is to be checked properly.

The inefficiency and flaws in existing social media legislations should be properly dealt with, mainly by giving clarification regarding certain terms, which remains ambiguous. Restrictions placed on social media shall be made sure that they are in conformity with Article 19(2). All social media legislations and ethics codes shall be reviewed and checked whether they are in strict conformity with Article 19(2). In the case of emergency situations, the government shall assure that an individual’s fundamental rights shall not be violated.

This article has been contributed by Swathi. Ashok. Nair, a student at the School of Legal Studies, CUSAT.

End Notes

[1] INDIA CONST. art. 19, cl. 2.

[2] INDIA CONST. art. 358, cl. 1.

[3]  Shreya Singhal v. Union of India, (2013) 12 SCC 73.

[4] Whitney v. California, 274 U.S. 357 (1927).

[5] Debopama Bhattacharya, The Information Technology (IT) Rules, 2021, MANOHAR PARRIKAR INSTITUTE FOR DEFENCE STUDIES AND ANALYSES, (Jun. 16, 2022, 9:30 AM), https://www.idsa.in/idsacomments/it-rules-2021-dbhattacharya-040621#:~:text=The%20IT%20Rules%202021%20aim,be%20a%20resident%20in%20India.

[6] Tehseen . S. Poonawalla .v. Union of India,  (2018) 9 SCC 501

[7] In Re: Prajwala E-Letter, Videos Of Sexual Violence And Recommendations, SMW (Crl.)No(S).3/2015.

[8] Sidhartha & Pankaj Doval, ‘Rules protect rights of users, were framed because social media giants failed to do so: IT and law minister Ravi Shankar Prasad’, THE TIMES OF INDIA, (2021).

[9] Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, § 69, No. 21, Act of Parliament, 2000 (India).

[10] Indian Penal Code, § 499, No. 45, Act of Parliament, 1860 (India).

[11] Poulomi Saha, Power to block internet content in emergency been there since 2009: Govt, INDIATODAY (Jun. 17, 2022, 11:00 AM), https://www.indiatoday.in/india/story/power-to-block-internet-content-in-emergency-been-there-since-2009-govt-1773806-2021-02-27.

[12]  Information Technology (Intermediaries Guidelines) Rules, 2021, § 3(i), Appendix rule II, No. 21, Act of Parliament, 2000 (India).

[13]  Shakir Mir, J&K Internet Shutdown Based on ‘Dubious’ Legal Framework: Report, THE WIRE, (Jun. 17, 2022, 1:00 PM), https://thewire.in/government/jammu-and-kashmir-internet-shutdown-jkccs.

[14] Faheema Shirin .v. Union of India,  No.19716 OF 2019(L).