Freedom Of Free Speech And Expressions In Digital Era
Author: LawSphereX
Category: Technology, Cyber & Privacy
Published:
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FREEDOM OF FREE SPEECH AND EXPRESSIONS IN
DIGITAL ERA
Taniya, LL.M., IILM Law School
1 INTRODUCTION
“Give me the liberty to know, to argue freely, and to utter according to conscience, above all liberties” - John Milton The essence of freedom of speech is very well depicted by the quotation of John Milton above. John Milton asserted that the knowledge and any other area of human activity couldn’t advance without self-determination. Human freedom means to be the free review of any opinion and the freedom of thoughts and opinions expressed. The Right enshrined in the Constitution of India signifies the ability of an individual to hold and communicate beliefs and opinions. Freedom in this particular sense entails the ability of an individual to communicate any aspect of his opinion in any way possible that may include talking, writing, printing, putting up banners, signs, or even choosing to remain silent.
The rise of technology companies into the core of media and communications has added new aspects to the long-running argument on the freedom of expression. Such social media has provided amazing features which traditional media did not have such as greater reach and engagement of the audience to the content shared by them, but they also come with some challenges. Free speech is guaranteed and secured by the national human rights law. Even considering the regulatory protection of free speech, the development of new technologies, particularly the Internet, poses the question of whether free speech can still be protected in the old way. It should be noted that the Internet and the transformation of media are already becoming a new space for the globalization of communication.
What needs to be stressed however, is the need for free expression and to address the hazards in the today’s digital era. The right of free speech and expression is also provided under international law. It has also been recognised under Article 191 of the “Universal Declaration of Human Rights” (UDHR) and Article 19(2) of the “International Covenant on Civil and Political Rights” (ICCPR). These clauses define this right as the “freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media, regardless of frontiers”. Freedom of Speech is also been provided under the Constitution of India, as do international statutes such as the Universal declaration of Human Rights (UDHR) (as on 10 Dec, 1948), the International Covenant on Civil and Political Rights, The European Convention on Human Rights and Fundamental Freedoms, and so on.
RESEARCH
METHODOLOGY
The research adopts a doctrinal methodology, focusing on the analysis of primary and secondary legal sources such as statutes, case laws, treaties, and academic literature. It will critically examine legal frameworks and find various challenges and opportunities in protecting freedom of speech and expression in the digital era.
RESEARCH
OBJECTIVES
To analyse the concept of Freedom of free speech and expression. • To find various challenges and opportunities in protecting freedom of speech and expression in the digital era.
RESEARCH QUESTION What are the challenges faced and opportunities given in protecting freedom of speech and expression in the digital era and how do social media algorithms influence the freedom of speech and expression?
2. HOW HAS FREEDOM OF SPEECH CHANGED OVER TIME?
In the United States, the concept of free speech has deep roots, shaped by a complex interaction of legal, social, and political forces. This historical path is critical to understanding the present arguments and issues surrounding fundamental freedoms in the digital era. The US origins of free speech and expression2 is way back to its period of colonial, which was characterised by opposition to British censorship and control over expression. The
1 INDIA CONSTI. Art. 19.
2 Behera, S. (2017). Freedom of Speech and Expression in 21st Century. Retrieved from
http://magazines. odisha. gov. in/Orissareview/2017/August/engpdf/36-41. pdf Constitution's authors, motivated by Enlightenment ideas and their own experiences with repression, acknowledged the critical necessity of free expression as a weapon for democratic governance and accountability. This recognition results in adopting the First Amendment in 1791, which says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”3. This concise still forceful statement has served as the foundation of American liberty, paving the way for unprecedented speech protection throughout history. As can be seen, this right is not a new concept.
It has existed since time immemorial, and its validity has grown with time. As democratic regimes prosper and evolve, the extent of this right will grow even more.
3. FREE SPEECH AND EXPRESSION AND SOCIAL MEDIA
Article 19(1)(a) of the Constitution of India guarantees the right of the freedom of speech and expression to all citizens. It is not an unrestricted right as it provides some restrictions also. This right has served as a foundation for many other rights that fall within its scope, as reaffirmed by the Supreme Court in numerous decisions over time. These include the Right to Freedom of Press, the Right to Free Expression and the Right to Information. The right to free expression is inherently binded to the principle of democracy stated in the Preamble of our Constitution. The Internet and social media provide individuals with the opportunity to share themselves freely and share their views with the global world. In the past years, there has been growth in the global movement advocating for Justice, Reform, Equality and Accountability for those in power, and human rights.
These social media platforms and the Internet have been crucial to these movements as these are very easy for people to share their views and interact. UN Human Rights Committee has encountered many challenges while trying to make the idea of free expression a reality. The Committee gave the idea that governments must take immediate steps to ensure the media to be independent and also guaranteeing the people to have access, the Internet's emergence as an
3 Bills of Rights 1791 United States First Amendment.
international network for the exchange of ideas and ideas is not reliant on traditional mass media. Social media can be used for a number of cybercrimes, such as defamation, breach of privacy, inciting criminal activity, and racist remarks, in addition to its positive uses. Once released, such offensive content spreads quickly and is difficult to stop. In this regard, social media regulation by the government is essential. An unrestricted4 right to free expression is not something that India supports. Reasonable limitations on this right's exercise are allowed under the Constitution where they serve the interests of public order, security, sovereignty, morality, or decency.
Information that violates the rules and regulations of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021; can be removed by a social media intermediary, (including many popular social media platforms like Facebook, Instagram, TikTok, and X (Earlier known as Twitter). This contains details that: • is offensive or harassing based on gender, offensive to race or ethnicity, vulgar, pornographic, paedophilic, invading another person's privacy, including bodily privacy, or inciting animosity between groups based on caste or religion violence.
; • is dangerous to children; • violate any trademark, copyrights or any other property rights; • misleads the recipient about the message's origin or purposefully and knowingly disseminates information that is obviously false, untrue, or misleading, or that the Central Government has determined to be fraudulent, false, or misleading about any of its business; • endangers public order, country’s unity, defence, security, or sovereignty and also its cordial ties with other countries; • violates any law in force at that time.
4. RESTRICTIONS TO FREE SPEECH AND EXPRESSION IN DIGITAL ERA
Residents do not have the right to freely express themselves without consequences5. No matter how people choose to use language, it's not a free-for-all that protects everyone from
4 MdNurul Momen, Threats to Free Expression in the Digital Age, Research Gate, July 2020.
5 Aleena Rose Jose & Anagha O, FREEDOM OF SPEECH AND EXPRESSION AND SOCIAL MEDIA
AN EXIGENCY FOR BALANCING, Indian Journal of Integrated Research in Law, Volume II Issue I. consequences. ICCPR provides restrictions for the following reasons: • To safeguard the freedoms and reputations of citizens. • To protect health, safety of the public, order, or morality. 'Seven freedom' given in Article 19 of the Constitution of India which now summarize only six freedoms including Article19(1)(a), known as 'freedom of speech and expression'. The foundation and important condition for almost all other forms of freedom. It is the life blood of civilization and would wither away without the freedom to think. The limitations that are given in Article 19 (2)6 are appropriate limitations as the rights guaranteed are for:
1. the sovereignty and integrity of India.
2. The security of the state.
3. Maintaining friendly relation with foreign states
4. Public order
5. Decency or morality
6. Defamation
7. Concerning Contempt of court
8. Incitement to an offence.
Therefore, regardless of the medium—print, digital, or social—these impose limitations on the Freedom of speech. In the democratic nation, Speech and Expression Freedom must be protected. Additionally, in order to preserve social order, this freedom must be limited; otherwise, some people may abuse it.
5. FREEDOM OF PRESS
To sustain in the democratic way, people must be free to express themselves and their views in the general public. According to Article 19(2) of the Constitution of India, freedom of expression allows individuals to express themselves through print media, radio, and television, with reasonable constraints. Although freedom of the press is not stated in Article 19 of the Constitution of India, Supreme Court judges have recognised it as part of freedom of speech
6 Indian Consti. Art. 19(2).
and expression in various cases.
6. FREEDOM OF PRESS IN INDIAN CONTEXT
Trevor Timm, an American lawyer, says that "an independent press is one of the most important pillars of democracy." The press has historically been used to discourage covert regimes, tyranny, and authoritarianism. The press shows the real side of the political groups and anything that has not been shown to the citizens. The press was the one who revealed the real faces7 of some of the dhongi Babas like Ram Raheem and many others. The media has the capacity to incite public against a political group by reporting or displaying the facts.
7. CAUSE OF DECLINE OF FREEDOM OF PRESS
Jawaharlal Nehru's thoughts on the press during the early stages of its freedom were that he wanted the press to be free of all odds as well as all types of danger associated with the inappropriate use of the freedom. However, Indira Gandhi was opposing the ideas given by Jawaharlal Nehru. She had little faith in the press, and her concerns were stated in the Assembly in New Delhi, blaming the press for giving widespread coverage to the country's student turmoil. The press has gradually lost its prominence in India. Many politicians use the press to win elections by inciting public disagreement. The legislature has often repressed press freedom.
1. The Emergency and Press Censorship (1975-1977)- Indira Gandhi serves as a cautionary
story about the fragility of free expression. This episode, veiled under the guise of national security and public order, effectively silenced the press. Journalists were imprisoned, influential newspapers were closed or forced to self-censor, and media outlets were targeted for intimidation. The despotism of the time had a chilling impact on dissent and criticism, suffocating the basic democratic core. Indian judiciary which is a shield of civil liberties, was not immune to the strains of the emergency. However, in the years after the emergency, the judiciary shown a commitment to restore trust in constitutional guarantees. According to Justice P. N. Bhagwati, "If journalists are forcibly silenced, the role of the judiciary would be reduced to a nullity.
" This remark captures the symbiotic link between a free press and a functioning judiciary, with one supporting the other in upholding democratic norms. What 7 Douglas C. Youvan, Freedom of Speech in the Digital Age: A Critical Examination of Private Power and Public Rights, research gate, Dec 2023. makes this age significant in talks about free speech is its evidence of how quickly a democracy may devolve into dictatorship when free expression is guaranteed. The press, sometimes known as the 'Fourth Estate,' functions as a watchdog for democracy. In today's digital era, where social media is the new battleground for free expression, the lessons of the crises are even more relevant. The growth of internet channels allows news and ideas to spread quickly, but it also increases the risk of misuse.
While protecting against such abuse, the government must walk carefully to prevent reigniting the ghosts of the 1970s.
8. IT RULES 2021 AND ITS REGULATIONS
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules were published by Indian government in February 2021. The regulations are intended to monitor digital news media and OTT streaming services, presumably with the goal of reducing the spread of misinformation and protecting users from harmful content. However, the regulations have faced tremendous criticism. Critics argue that the new standards give the government disproportionate authority to restrict and alter digital information, undermining the values of free expression and creative innovation. Numerous digital media companies, as well as civil society organisations, have legally challenged the constitutionality of these restrictions, casting doubt on the future of unrestricted speech in the rapidly expanding digital domain.
The selected incidents demonstrate the difficult issue of safeguarding free expression in India who is known for its rich diversity and inclusive attitude. Act of achieving a balance of the unassailable right of free expression as well as the societal imperatives of communal harmony, religious reverence, and national security considerations has sparked heated discussions and legal decisions. This necessitates an ongoing conversation to judiciously protect this cornerstone right while also addressing the actual issues that arise from a varied society. NEW IT RULES:
The IT Rules are based on the Information Technology Act of 2000, which legally recognises electronic trade. • The Act offers a "safe harbour" for intermediaries who follow governmental requirements and use due diligence when performing their obligations. • Intermediaries are immune under Section 79 of the Act if they adhere to stateprescribed criteria and practice due diligence. Intermediaries include social sites such as WhatsApp, X, Facebook, and Instagram.
Amendments adopted in April 2023 empower the government to censor material and require intermediaries to remove fabricated or misleading content. • New restrictions in India limit free expression and civil freedoms through presidential orders rather than legislation. • The IT Rules do not prevent communication based on fake news or disinformation, and the revisions do not undermine the existing restrictions. • The Fact Check Unit has unrestricted authority to determine incorrect information and require social media intermediaries to act based on their conclusions, which are open-ended and undefined.
9. SOME CASES AND EXAMPLES OF FREE SPEECH AND EXPRESSIONS
1. Hamdard Dawakhana v. Union of India AIR 1960 SC 5548
“The Drug and Magic Remedies (Objectionable Advertising) Act”, which restricted drugs promotion in specific situations and outlawed the promotion of drugs with magical properties for the treatment of illnesses, was contested on the grounds that it restricted people's freedom. According to the Supreme Court, advertisements are unquestionably a type of communication, but they must all be related to trade or business and not the spread of ideologies. Therefore, the advertisement of the prohibited drugs would not fall under Article 19(1)(a).
2. The Padmaavat Controversy (2018)
Padmaavat9, a film directed by Sanjay Leela Bhansali, was enmeshed in a whirlpool of public outrage in 2018, led by the Karni Sena and some Rajput factions. Critics said that the movie desecrated historical accounts and diminished the honour of Padmavati, the famous Rajput queen. The clamour went beyond verbal protests and took the form of violent crimes, threats against the actors, and passionate calls for the movie to be banned. Despite the Central Board of Film Certification's approval for the film's distribution, several state governments attempted to ban it, raising questions about
8 Hamdard Dawakhana vs. Union Of India, AIR 1960 SC 554.
9 https://www.hindustantimes.com/bollywood/padmavati-to-padmaavat-and-a-long-trail-of-controversies-atimeline-of-obstacles-the-film-faced/story-MjHzviRwxD6sAiaPyEMSSK.html upholding law and order. The episode vividly illustrated the complex relationships between historical authenticity, artistic liberty, and social balance. Supreme Court of India, the last arbiter, intervened and uphold the importance of the freedom of expression and put the responsibility for maintaining public peace on state governments.
3. The Arrest of Comedian Munawar Faruqui (2021)
A well-known Indian stand-up comedian named Munawar Faruqui was arrested in January 2021 on charges of offending religious feelings. Humour directed at Hindu deities during a live performance was the accused offence. Faruqui was accused under “Section 295A of the Indian Penal Code” after being arrested along with five others. Interestingly, there was no supporting video evidence to support the claims. A passionate debate concerning the limits of comedy and satire in India's complex society was sparked by this incident. It also highlighted the possibility that legal frameworks could be abused to restrict free speech. The incident highlighted the complex obstacles that comedians and artists face while exercising their right, even after he was granted bail the very next month.
4 Case study
Surge in Vietnamese prisoners of conscience A third more prisoners of conscience were wrongfully imprisoned in Vietnam in 2019 as a result of an increasing assault on nonviolent dissent by bloggers, lawyers, human rights defenders, environmental activists, and pro-democracy protesters. The conditions under which the inmates are being detained are still terrible; there is proof that they are frequently kept incommunicado and in solitary confinement, tortured, and otherwise mistreated. They are also kept in filthy surroundings and are not allowed access to clean water, fresh air, or medical care. Many persons of conscience were jailed for making vague comments on social media. For example, Tran Hoang Phuc is a prisoner of conscience.
10 CONCLUSION
AND RECOMENDATIONS It is evident the digital media is very useful document for exercising the people freedom of expressing their views freely. But now-a-days it is mostly used for unlawful purpose, prompting governments to restrict social media sites. While misuse of social media requires legislative oversight, there are legitimate fears that filtering would violate people's civil rights.
As well as the government is controlling the powers, we also ensure that the digital method is only used for the lawful and positive purpose only and not for misusing the freedom which is provided to us. The Legislature, Executive and Judiciary must work together to implement laws which helps in protecting the data of the people if there is any deficiency in the data protection laws in the country along with ensuring that the right is not violated. Here are some recommendations to secure the Right of freedom of speech and expression: Technology Solutions: Government and other officials should invest in some digital solutions to tackle misinformation and the fake news. Example: Algorithms can be created to detect and flag erroneous material, and fact-checking websites can be pushed.
Self-Regulation: Intermediaries can take self-regulatory actions to prevent the fake news and misinformation. This includes forming internal committees to monitor content and flag any misleading information, as well as collaborating with fact-checking websites to verify accuracy. Public Awareness: It is critical to educate the public about the value of free expression and the perils of the censorship. It can be accomplished through workshops, social media campaigns, and conversations in schools, colleges, and other public settings. Collaborative Approach: The government, civil society organisations and Intermediaries should work together to build a joint strategy to combat fake news and misinformation. This includes forming a unified task force to identify and delete misleading material, as well as fostering media literacy among the general public.
BIBLIOGRAPHY
Behera, S. (2017). Freedom of Speech and Expression in 21st Century. Retrieved from http://magazines.odisha.gov.in/Orissareview/2017/August/engpdf/36-41.pdf • Dr. Rakesh Chandra, THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IN THE DIGITAL ERA: A STUDY IN THE LEGAL PERSPECTIVE, law Brigade group, Annual Volume 8, 2023. • Freedom of Connection – Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet” by UNESCO, 2011. • Aleena Rose Jose & Anagha O, FREEDOM OF SPEECH AND EXPRESSION AND SOCIAL MEDIA: AN EXIGENCY FOR BALANCING, Indian journal of Integrated Research in Law, Volume II Issue I. • Douglas C. Youvan, Freedom of Speech in the Digital Age: A Critical Examination of Private Power and Public Rights, Dec 2023. • Jack M. Balkin, The Future of Free Expression in a Digital Age, Pepperdine Law Review, Vol. 36: 427, 2009.