Authors : Sanjana Dayal and Alankrita Katiyar
Year, Course and College : 3rd yearBBA LLB (corporate laws)University of Petroleum and Energy Studies, Dehradun.
Article 19 of the ICCPR deals with freedom of expression to see, receive and impart information of all kinds through any social media of individual choice. The right to freedom of speech and expression is available to the citizens of India under Article 19(1) (a) of the Constitution of India.Social media is a platform that enables an individual to communicate, interact, share opinions, etc. or enable the exchange of user-generated content. People use their right to freedom of speech and expression to raise voices to abolish racism in trending Blacklivesmatter. On the other hand, people use this platform for several cyber-crimes, including defamation, invasion of privacy, racist remarks, incitement of offences and many more that happens in the case of “Boys Locker Room”.The article will also highlight some of the landmark judgements related to social media and freedom of speech and expression that had created an impact. At the last specific legislations are required to keep a check on social media to establish clarity and transparency
Keywords: ICCPR, Article 19 of Constitution of India, Freedom of speech and expression, Social media, boys locker room, governments, Blacklivesmatter.
The first principle of a free society is the free flow of words without any circumscription. The right to express ideas and information freely through social media is safeguarded by various international organizations such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) . Article 19 of the ICCPR deals with freedom of expression to see, receive and impart information of all kinds through any social media of individual choice. The right to freedom of speech and expression is available to the citizens of India under Article 19(1) (a)of the Constitution of India. Freedom of speech and expression means the right to express one’s opinions, views, ideas etc., freely through any mode of expression, including writing, oral, printing, painting etc. However, it is not an absolute right. It can be subject to reasonable restrictions. Article 19(2) provides reasonable restrictions on the right to freedom of speech and expression. The reasonable restrictions mentioned under the Article 19(2) includes restrictions in the interest of the following:
Sovereignty and Integrity of India
Security of the State
Friendly relations with foreign states
Decency or morality
Contempt of Court
Incitement to an offence
The contents falling within these parameters could be considered as “objectionable” by the law. In a recent case of Anuradha Bhasin v. Union of India, where the newspaper ‘Kashmir Times’ was not distributed for a week and the internet was suspended after revocation of Article 370 of the constitution of India; the central government stated that reason for the shutdown of the internet was to prevent the propaganda of fake news. The court held that the restriction upon the fundamental right of freedom of speech and expression must be in consonance with the mandate under Article 19(2). The right to use the internet as a medium for free speech and expression and trade as well as commerce is protected under Article 19(1)(a) of the Constitution of India,1950, and such a right can only be restricted if there is a threat upon sovereignty and integrity of India. In another case of Faheema Shirin R K v. State of Kerala & Ors., the court held that the Humans Right Council of the UN has found the right to access the internet as a fundamental freedom. Thus, any rule or instruction which impairs the said right cannot be permitted in the eyes of the law.
Further,we are well-versed in the fact that social media is a platform that enables an individual to communicate, interact, share opinions, etc., or enable an exchange of user-generated content. Social media has the power to reach the masses and distribute information within no time. Every coin has two sides; therefore, with the several benefits of social media, there are banes as well.
Many people use this platform for a good cause, such as the recent trending #blacklivesmatter; people are showing their rage towards the custodial killing of an African-American George Floyd, in Minneapolis, U.S. People are using their right to freedom of speech and expression to raise voices to abolish racism. On the other hand, people use this platform for several cyber-crimes, including defamation, invasion of privacy, racist remarks, incitement of offences and many more. Recently, an Instagram page named “Boys Locker Room” was brought to light where a group of South Delhi boys aged 17-18 were objectifying and morphing pictures of girls. There were some screenshots where the boys were planning to rape a girl. They took the defence that they have right to freedom of speech and expression, and thus, they are allowed to speak whatever they want to. Therefore, it is evident that people end up misusing their right due to a lack of legal knowledge.
Another such example can be trolling. Trolling is a menace in the age of social media and the internet. Lack of legal knowledge leads them to think that trolling is protected under their right to speech and expression. These trolls assume that they own the account, which they have created on the social platform. It is important to note that the people who create an account on social media are not their account owners but are mere licensees. They are allowed to speak about themselves. However, when speaking about others, they need to abide by the limitations imposed by the Indian Constitution, as the right to freedom of speech or expression is not absolute.
In a very recent instance, the social media sites were flooded with a trend of Tik Tok V. YouTube. People were making racist remarks on the tik-tokers, sexualizing them and much more in the name of exercising their right to freedom of speech and expression. The right to freedom of speech and expression does not allow anyone to violate the rights of others. Every person has the right to post anything they want but these people’s rights are not absolute and are subject to restrictions. In the Secretary, Ministry of Information and Broadcasting, Govt. of India and others v. Cricket Association of Bengal & Ors., it was held that the regulation of social media to protect the rights of the citizens is desirable rather than censoring and banning of the same. However, leaving no room to doubt the importance of activities undertaken mindlessly on social media, the court in the case of Carla Gannon and Another v. Shabaz Farukh Allahrakhia and Another, accepted the posts made on Facebook as evidence to decide the matter. Therefore, we can say that the Indian Judiciary has also started to recognises also started to recognise the expressions on social media. Hence, one should be very careful while exercising his right to freedom of speech and expression. Crossing the prescribed limits might land them in trouble.
The COVID-19 pandemic has given fertile ground for government censorship of speech and expression. In the case of Dr. Indranil Khan v. State of West Bengal & Ors.,a FIR was lodged regarding the expression of opinion on Facebook related to the pandemic. The Court opined that a person could not be subject to prolonged interrogation only because his expression of opinion brings the government into disrepute.
The major question is what the current position of the laws is meant for specifically dealing with COVID-19 on freedom of speech and expression? Currently, National Disaster Management Act 2005 (NDMA), The Epidemic Act, 1897 along with Section 144 of Criminal Procedure Code, 1973are used by the states as a tool to put restriction on citizens’ free speech. These acts do not go into details regarding the freedom of speech and expression but Section 6(1) of National Disaster management act, 2005 allows national authority to lay down policies, plans and guidelines for disaster management from time to time. Further, it is important to keep in mind that restrictions made under section 144 of the Criminal procedure code cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights. However, these acts have some loopholes and without proper clarifications, it empowers the government to take and exercise sweeping measures. Proportionality and reasonability are the touchstones on which government actions should be measured.
To conclude, we can say that social media is a powerful means to exercise the right to freedom of speech and expression. However, it is worth noting that social media platforms are also used for acts, which forces the government to censor social media. On the one hand, the misuse of social media gives rise to the need for legal censorship, whereas on the other hand, there is fear of violation of civil rights of citizens as an inevitable consequence of censorship. Moreover, existing information technology is unaccountable because it gave inexplicable power in hands of the government. Hence, specific legislations are required to keep a check on social media in order to establish clarity and transparency.
The only way to ensure the adequate harmonization of the principles of free speech and expression guaranteed under Article 19(1)(a) is the reasonable restrictions prescribed under Article 19(2), and the doctrine of proportionality that has become a legal standard for protection of civil liberties and rights of citizens. With growing time, the right to freedom of speech and expression has widened its ambit. Social media is now one of the main sources to express one’s opinion. Therefore, keeping all the above-mentioned points in mind, the government should protect the fundamental right to freedom of expression and speech in the world of social media.