INTRODUCTION

Lord Salmon L.J., an eminent English jurist, in one of his judgements had stated the following –

The right to fair criticism is part of the birth right of all subjects of Her Majesty. Though it has boundaries, that right covers a wide expanse, and its curtailment must be zealously guarded against. It applies to the judgements of the courts as to all other topics of public importance.

News media and television journalism have been instrumental in propagating the volume of news and views in the world including India for most of the twentieth century. However, in recent years, social media platforms such as Facebook, YouTube, Twitter and blogs have grown in importance not only as an alternative news source but as an effective medium for individuals to post their own views and opinions. While Courts in India have always supported the cause of freedom of speech and expression, they have also emphasized the need for reasonable restrictions on this right to prevent misuse of such social media.

POSITION IN INDIA

FREEDOM OF SPEECH AND EXPRESSION IN INDIA

Article 19(1)(a) of the Constitution of India, 1950 (“Constitution”) provides that all citizens have the right to freedom of speech and expression. However, these fundamental rights are not absolute in nature and Article 19(2) of the Constitution imposes reasonable restrictions in the interests 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 offence.

Over the years, the judiciary in India has usually scuttled all attempts to hinder this invaluable right of freedom of speech and expression. However, they have simultaneously emphasized that the Constitution does not confer an absolute right to speak or publish, without responsibility. It is not an unrestricted or unbridled license that gives immunity for every possible use of language and provides punishments for those who abuse this freedom.

SOCIAL MEDIA AND CENSORSHIP

The act of censorship involves the suppression of speech or other public communication which may be considered objectionable, harmful, sensitive, or inconvenient as determined by a government, media outlet, or other controlling body. While censorship of online content is imperative to prevent obscene, indecent, defamatory and disparaging information being made available on the internet, imposition of unreasonable restrictions will be violative of the fundamental right to freedom of speech and expression.

In December 2011, India’s Union Communications and Information Technology minister Kapil Sibal had instructed internet service providers and social media giants including Google, Facebook, Microsoft and Yahoo amongst others to pre-censor online content uploaded by their users.

This move by the Government of India led to widespread dissent and condemnation in the country. The Government later issued a clarification stating that it was committed to freedom of speech and expression and would not take any steps in violation of this fundamental right.

DISSENTERS IN THE JUDICIARY

While pre-censorship of mass media has been held to be constitutionally valid by the Supreme Court in the past, the apex court has also observed, in L.I.C. of India vs. Prof. Manubhai D. Shah, (1992) 3 SCC 637, that to stifle, suffocate or gag the fundamental right of free speech and expression would sound a death-knell to democracy and would help usher in autocracy or dictatorship.

The judiciary in the recent case of R. Karthikeyan v. Union of India, W.P. No. 20344 of 2009, a decision rendered by the Madras High Court on April 01, 2010 and in the case of Janhit Manch and Others v. Union of India, PIL No. 155 of 2009, rendered by the Mumbai High Court on March 03, 2010 ruled against the blocking of websites. They refused to direct the Government to take proactive steps to curb access to and police online content, stating that this would place an excessive burden on the right to freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution.

In Secretary, Ministry of Information and Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others, (1995) 2 SCC 161, the Supreme Court of India held –

For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an ‘aware’ citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them. This cannot be provided by a medium controlled by a monopoly – whether the monopoly is of the State or any other individual, group or organisation.

The Supreme Court has held that the words ‘freedom of speech and expression’ must therefore be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities. It includes the right to propagate one’s views through the print media or through any other communication channel, L.I.C. of India vs. Prof. Manubhai D. Shah (1992) 3 SCC 637.

THE INTERMEDIARY RULES

In April 2011, the Government of India notified the Information Technology (Intermediaries Guidelines) Rules 2011 (“Intermediaries Rules”) that prescribe, amongst other things, guidelines for administration of takedowns by intermediaries. An intermediary has been defined under Section 2(w) of the Information Technology Act, 2000 (“IT Act”) as any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

Social networking platforms like Facebook, Twitter, search engines like Google and Yahoo, all of which have revolutionised the online space are included within this definition.

The Intermediaries Rules provide for the standard of due diligence to be exercised by intermediaries, in order to be eligible for an exemption from liability for content hosted on such intermediaries’ websites, in terms of Section 79 of the IT Act, which provides:

“For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation – For the purposes of this section –

“network service provider” means an intermediary.

“third party information” means any information dealt with by a network service provider in his capacity as an intermediary.

However, the IT Act also limits the liability of these intermediaries under Section 79 of the IT Act, which states that an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him if the intermediary exercises due diligence while discharging his duties under the IT Act and also observes such other guidelines as the Central Government may prescribe.

As per the Intermediaries Rules, the intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature, about any objectionable information as mentioned above, shall act within thirty-six hours and where applicable, work with the user or owner of such information to disable such information that is in contravention.

Therefore, the Intermediaries Rules casts the onus of the intermediary to censor all material and information to be hosted and made available by them.

The Central Government can also block content under Section 69A of the IT Act. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 lays down the procedures, guidelines for blocking of the website or information generated, transmitted via internet for the general public.

RIGHT TO PRIVACY

The right to privacy has been interpreted as an unarticulated fundamental right under the Constitution. Privacy rights are protected under Article 21 of the Constitution. Article 21 states that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful.

Indian Courts upheld the right to privacy under Article 21 in the landmark case of Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295, where the Supreme Court held that the right of privacy falls within the scope of Article 21 and observed that the expression “right to life” was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. In this case, the Petitioner was charged in a case of dacoity but was subsequently released as there was no evidence found against him. Thereafter, he was subjected to surveillance under U.P. Police regulations, wherein the police constables used to enter his house during night hours and thereby disturb him. The Supreme Court held that the U.P. Police regulations which authorizes domiciliary visits is void and unconstitutional and upheld the right to privacy of the Petitioner.

Since the concept of privacy is closely connected to data protection, in 2011, the Government of India also notified the “Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011” (“Privacy Rules”) under Section 43-A of the IT Act. The Privacy Rules establish the standard of security practices and procedures to be observed by data collectors, and provides for the protection of the privacy of users disclosing data.

The Privacy Rules state that prior permission of the provider of information has to be obtained by the body corporate before disclosure is made to a third party and any third party receiving such information is not entitled to disclose it further.

However, they shall be obliged to share such information without obtaining prior consent from the provider of information, with Government agencies mandated under the law to obtain information including sensitive personal data or information for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences.

While some may argue that because of the above mentioned exception, the Privacy Rules exempt the Government from its obligations, it must be pointed out that the legislation simultaneously also provides safeguards for this right. During the exercise of this exception, the Government agency is required to send a request in writing to the body corporate possessing such sensitive personal data or information stating clearly the purpose of seeking such information. The Government agency is also under an obligation to state that the information so obtained will not be published or shared with any other person.

Social media has been facing a lot of criticism by the governmental authorities in India lately. While some of the actions of the government may be politically motivated, others are because there are a plethora of laws in India that cover a vast variety of issues. Many of these are so ambiguous in nature that any content put up by the social media will get affected by these laws. Some of the laws that may be of concern are as follows –

The Indecent Representation of Women (Prohibition) Act, 1986

This legislation prohibits the “indecent representation of women” through advertisements, or in publications, writings, paintings, figures, or in any other manner. It defines “indecent representation of women” as depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.

Warnings by the government to social media sites like Facebook and YouTube, court notice to Bollywood actors and cricketers for indecent dancing at the cricket IPL in April 2012, Indian MPs proposing a ban on indecent representation of women on television at a discussion in the Indian Parliament are some incidents in the social media where indecent portrayal of women has been condemned.

The Indian Penal Code, 1860

The Indian Penal Code contains provisions dealing with sedition, obscenity, blasphemy, and defamation, which may be used to sanction those who generate and circulate objectionable content.

The Emblems and Names (Prevention of Improper Use) Act, 1950

This legislation prevents the improper use of certain emblems and names for professional and commercial purposes. It states that no person can use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem or any colourable imitation thereof without the previous permission of the Central Government.

The Prevention of Insults to National Honour Act, 1971

The legislation states that whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof shall be liable to imprisonment.

CONCLUSION

Recent debates on internet censorship in India have focused on the allegedly free for all nature of the internet. There is no doubt that the above mentioned Indian laws prevail on the internet space as well and grants us our constitutional right to free speech and expression but with reasonable restrictions. While some may argue that the current mechanism of internet censorship in India is draconian and unconstitutional, they should also keep in mind that the internet should not be misused for their own private interests, which may be detrimental to the interests of others or the country as a whole. This dichotomy between rights of the people and the statutes in force has to be resolved by way of a harmonious interpretation of the provisions of these statutes. The government and the judiciary should take steps to provide clarifications to remove ambiguity in the above mentioned legislations, to prevent conflicting interpretations by different sections to suit their selfish motives.

Probir Roy Chowdhury is a Senior Associate and Garima Jhunjhunwala is an Associate with J. Sagar Associates, Bangalore. Their practice areas include work in the technology and education sector in India. They may be contacted at probir@jsalaw.com and garima.jhunjhunwala@jsalaw.com.

 

 

By Probir Roy Chowdury and Garima Jhunjhunwala