Freedom of Expression in Cyberspace

“I may disagree with what you have to say, but I will defend to death, your right to say it.”

Evelyn Beatrice Hall

Introduction:

John Milton said,“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. The unique virtue of human beings is that we can speak, communicate and convey our opinion, thoughts, and sentiments with each other. This is not just a personality trait of us humans, but also the exceptional and singular gift of nature; maybe that is why the formal recognition of this quality under our Indian Constitution is referred to as “freedom of speech and expression” rather than “right to speech and expression”.

We are born with the ability and liberty to communicate and the State also recognizes the same. With the growth of technology platforms like social media and cyberspace, this right has become multidimensional. It has given rise to numerous academic debates like whether cyberspace also facilitates autonomy of speech and expression, its restrictions, and other complications involved. Therefore, in the present article, we shall attempt to understand the legal dynamics of freedom of speech and expression in cyberspace.

“Human Rights” and “Freedom of Speech and expression in Cyberspace”

Freedom of speech is one of the civil rights recognized by most of the countries as set out in Article 19 of the Universal Declaration of Human Rights (UDHR Universal Declaration of Human Rights). This Article highlights that everyone has the right to freedom of opinion and speech, including the right to express opinions without intervention, and to seek, convey and exchange information and ideas through any media, regardless of boundaries (region).[1]

As far as freedom of speech and expression in the cyber world and human rights are concerned, some provisions on the rights and principles of internet freedom are available on the official website of Internet Rights & Principles Coalition[2] explaining the Human Rights principles on the Internet.

1. Universality and Equality: All human beings are born free and equal in liberty and dignity, which must be valued, secured, and respected in the cyber world.
2. Rights and Social Justice: The Internet is an area for the promotion, preservation, and fulfillment of human rights as well as the advancement of social justice.  All of us have the responsibility to uphold the human rights of each other in the cyber world.
3.  Accessibility: All of us have the same level of freedom to connect and use the secure and open Internet.
4. Expression and Association: All of us have the freedom to openly seek, receive and exchange information on the Internet without censorship or intervention. Everyone also has the freedom to interact associate freely on the Internet, for social, political, cultural, or other objectives.
5. Privacy and Data Protection: Everyone has the right to privacy on the Internet. This includes freedom from monitoring, the right to use cryptography, and the right to anonymity. Everyone also has the right to data privacy, with control over the collection, storage, disposal, and dissemination of personal data.
6. Life, Liberty, and Security: The rights to life, liberty, and protection must be respected, protected, and recognized over the cyberspace. These rights must not be infringed or used to infringe any other rights in the online setting.
7. Diversity: Cultural and linguistic plurality on the internet must be embraced and technological and policy innovation must enable diversity of expression.
8. Network Equality: All shall have universal and unrestricted access to the content on the Internet, free from arbitrary prioritization, censorship, or traffic regulation on commercial, political or other grounds.
9. Standards and Regulation: The infrastructure, networking structures, document and data formats of the Internet shall be built on common standards that ensure full interoperability, inclusion, and equitable opportunities for all.
10. Governance: Human rights and social justice must form the ethical and moral basis on which the Internet works and is regulated. This is achieved in a transparent and multilateral way, based on the values of transparency, inclusive cooperation, and accountability.[3]

“Freedom of Speech and Expression” in India

Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, photographing, or any other means. It is widely accepted in modern times that the right to freedom of speech is the essence of a free society and must be safeguarded at all times. The first concept of a democratic society is the unbridled exchange of information in an open forum.[4]

Freedom to express thoughts and ideas without hindrance, and particularly without fear of retribution, plays a significant role in the growth of that particular society and ultimately for that State. It is one of the most essential basic freedoms granted from the suppression or control of the State.[5] Article 19(1) (a) of the Indian Constitution guarantees the fundamental right of speech and expression.

Justice Bhagwati in the case of Maneka Gandhi v Union of India emphasized that democracy is essentially based on free debate and discussion and it is the only corrective of government action. He added that if democracy signifies a government of the people by the people, then the citizens are rightfully entitled to participate in the democratic process, and to facilitate the same they must exercise their right of making choice, free and general discussion of public matters.[6]

Freedom of the press is another facet of Article 19(1) (a) in Sakal Newspapers v Union of India the Supreme Court regarded freedom of the press as a “species of which freedom of expression is a genus”.[7] Justice Patanjali Sastri in the case of Romesh Thappar v State of Madras held that freedom of speech and press is the foundation of democratic organization and for the proper functioning of the government it is essential to provide free political discussion.[8]

“Freedom of Expression” in “Cyberspace” (India)

The Supreme Court in 2013 while deciding the case of Shreya Singhal v Union of India[9] wasposed with the question concerning the extension of the ambit of Article 19(1) (a) to cyberspace. Section 66A of the Information Technology Act, 2000 was struck down for reason of its vagueness. This for the first time required the Indian judiciary to ponder upon the question of cyberspace and freedom of expression.

Article 19(1) (a) and Cyberspace

The debate was whether cyberspace falls under the ambit of Article 19(1) (a). The court in this regard held that right to acquire and disseminate information forms a part of freedom of expression. Furthermore, the Court held that the acquisition or dissemination of information does not need to take place by any particular medium and that the constitutional right extends to any kind of medium.

In stating so the court referred to the case of the Cricket Association of Bengal wherein it was stated that ‘the right to communicate’ requires the right to communicate through any available medium, whether print or electronic, or audio-visual.[10] Additionally, Justice Nariman quoted that “the virtue of electronic media cannot become its enemies”. Therefore, this case established that the fundamental right of freedom of expression also extends to the internet and cyberspace.

Is Article 19(1) (a) Medium Neutral?

The next major issue was whether Article 19(1) (a) applies to cyberspace or is it medium-neutral. The consequence of Article 19(1) (a) being medium neutral is that the similar standards of freedom of expression would apply to all mediums. The case held Article 19(1) (a) extends to cyberspace while not venturing into the question and legality of medium neutrality. Therefore, 19(1) (a) cannot be said to be medium-neutral.

Intelligible Differentia

One of the contentions was that creating special offenses and lowering procedural safeguards for the internet as a separate medium attacks Article 14 for there is a lack of intelligible differentia between those who use the internet and those who by words spoken or written use another medium of communication.

The court in this regard held that the internet can be distinguished from other mediums and that there is intelligible differentia between the Internet and other mediums. In order to ensure that the Internet is a distinct medium, the court focused on the following factors: “global access to the internet”, “impossibility of pre-censorship”, “possibility of using new technologically advanced methods to modulate content”, “lack of ethical code of conduct” and “individualized production”.[11]

“Reasonable restrictions” on the “Freedom of Speech and Expression in Cyberspace”

Article 19 (2) mentions some grounds based on which the freedom of speech and expression can be curtailed, these grounds include-

1. In the interest of sovereignty and integrity of India;
2. Threat to security of India;
3. Threat to friendly relations with foreign states;
4. Protection of public order, decency or morality
5. In relation to contempt of court;
6. Defamation;
7. Incitement to an offense.[12]

Additionally, the court held that cyberspace is not like other media and that different standards can be applied to cyberspace speech, it opened the possibility of creating separate jurisprudence specifically with respect to cyberspace. This means that greater restrictions can be imposed on cyberspace speech as opposed to other media.  Thus when a clear restriction of cyberspace expression is questioned for constitutionality on the grounds of Article 19, the medium-distinction will play a part in deciding the “reasonability” and the extent of the grounds referred to in Article 19(2).[13]

Conclusion

It is essential to protect the right of freedom of speech and expression not just in letter but also in spirit, in all mediums from physical to digital. The justification to safeguard and promote this right stems from the fact that it helps in the discovery of truth by open discussion and it helps the citizens to express their beliefs and political opinions. This right not only ensures active participation from the citizens but is also crucial for the self-fulfillment and development of an individual. Freedom of expression in cyberspace helps to uplift the idea expressed in the Preamble wherein we the people of India declared our solemn resolve to secure to all the citizens liberty of thought and expression.

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References:

[1] Art. 19, Universal Declaration of Human Rights, 1948.

[2] 10 Internet Rights & Principles, Internet Rights & Principles Coalition, 2013 http://internetrightsandprinciples.org/campaign/, (Feb 5 2021; 5:09 PM).

[3] Diana Lukitasari, Freedom of Speech in Cyberspace in Human Rights Protection Perspective (Freedom of Speech in Cyberspace: Human Rights Perspective), International Journal of Business, Economics and Law, Vol. 2, Issue 3 (June) ISSN 2289-1552.

[4] Tanu Priya, Freedom of Speech and Expression, Lawctopus, https://www.lawctopus.com/academike/freedom-of-speech-and-expression/ (Feb 04, 2021; 8:08AM).

[5] Id.

[6] Maneka Gandhi v Union of India AIR 1978 SC 597.

[7] Sakal Newspapers v Union of India, AIR 1962 SC 305.

[8] Romesh Thappar v State of Madras, AIR 1950 SC 124.

[9] Shreya Singhal v. Union of India, 12 S.C.C. 72 (2013).

[10] Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236.

[11] Shreya Singhal v. Union of India, 12 S.C.C. 72 (2013).

[12] INDIA CONSTI. art 19 cl. 2.

[13] Shreya Singhal v. Union of India, 12 S.C.C. 72 (2013).