General

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This Blog is written by Vidur Thanawala from Bennett University, Greater Noida. Edited by Prakriti Dadsena.

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ABSTRACT:

The world in the 21^st century is considered to be moving more and more towards the globalization, in today’s world everything is accessible on the internet. This is considered to be a bane for the world but one of its aspects is also considered to be boon for the world. This is with everyone turning towards the online platform to express their opinions, especially the youth taking the social media to raise their voice on political issues, against any kind of injustice that they see or experience.

This brings us to an important question, with most of the democratic countries that guarantee freedom of speech and expression as a constitutional right, would it be feasible for the countries to impose net neutrality and starting moderating the content that one is trying to access and stop the other person from uploading it.

In today’s world, the content that is uploaded on the internet can shape or influence the public policy of the government, certain opinions over a topic can create a wave of protest and violence among the people, thus where should the government draw a line as to what content is visible to the general population of the country. The government is right to moderate any information placed on the internet that may go against the public interest of the country on the larger picture.

INTRODUCTION:

The online platform transformation that has evolved over the years has altered the social conditions of speech [1].  The online platform by lowering the cost of generating and sharing information has expanded the scope and diversified access to both the thing content and online conversation.

In today’s world, the online platform has offered the world population a unique chance to interact with people globally, and not only this it has also allowed people to pass information freely without any interference throughout the world. These platforms at the same time have come up with some unique methods that serve as to what kind of information is accessible to the population in their everyday life.

Until recently, the online platforms were inclined to disavow the extent to which they govern speech [2]. This is because platform moderation is not a static process but a progressing negotiation between a pluralities of actors [3].

Many of the online platforms nowadays have a specialized department known as the policy teams who are responsible for moderating content online on basis of certain criteria’s which are as follows content that can lead to profit maximization, or content that can influence corporate philosophy, and lastly moderating or restricting that can result in a public outcry.

One of the reasons why governments of many countries are pushing for the moderation of content that is posted online is to curb hate speech and curb the spread of fake news that could create problems in any manner.

Social interest in free expression is based on the idea that without expression, there is no society at all because communication is the very essence of social life [4].

The right to freedom of speech over the online platform is important for the following reasons

1) To find out the truth:

Historically the toughest contention for a free speech guideline has been founded on the significance of open conversation to the revelation of truth. It is clear from the well-known burial service address given by the pedicels as dated back as in 431 B.C. Athenians, he perciles out, didn’t consider open conversation just something to be endured; rather they accepted that it is the best interface of the city couldn’t be presented with the full conversation of issue before the assembly.

If restriction on speech was tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. The best truth is power of the thought to get accepted in the competition of market [5].

2) Non self- Fulfilment:

Free speech and expression plays a pivotal role in a democratic country; it is believed that for a democratic country to process and advance it is necessary that each and every citizen of the country has the right to express their opinion. Hence, for an undeniable improvement of character, the right to speech and expression and articulation is exceptionally fundamental.

3) Democratic Value:

Freedom of speech is the bulwark of democratic Government. This freedom is essential for the proper functioning of the democratic process. It is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of the liberties giving succor and protection to all other liberties. It has been truly said that its mother of all the liberties [6].  In a democratic country, the right to speak freely and express one’s opinion without any restriction or interference from the government facilitates open discussion on issues which may pertain to social, political and economic issues of the country.

4) To ensure pluralism:

The right to speak freely of speech reflects and fortifies pluralism, guaranteeing that various sorts of lives are approved what’s more, important is that it promotes the confidence of those people who follow a specific life.

The French Council and the courts in Italy through judicial pronouncements have decided that free speech and expression of media organizations might be constrained to guarantee that the constitutional estimation of pluralism is defended.

In this way, it is very well inferred that the right to speak freely and express opinion empowers the disclosure of truth, which is pivotal to the working of a just and a fair democracy.

THE POSITION OF FREEDOM OF SPEECH AND EXPRESSION AROUND THE WORLD

There are many nations around the globe that ensure that their citizens are guaranteed the right to express their opinion in a free manner lets us have a look at some.

1. The First Amendment and the Fourteenth Amendment to the Constitution of the United States.

2. The Common Law of England.

3. Section 40 (6) (1) of the Constitution of Eire, 1937

4. Section 18(1) (e) (f) (g) of the Constitution of Sri Lanka, 1972.

5.  Articles 50 and 51 of the Constitution of USSR 1997.

6. Section 298 of the Government of India Act, 1935.

The First Amendment to the Constitution of the United Nations states that the congress shall not make laws regarding the foundation of religion, or gain disallowing the free exercise thereof; or condensing the opportunity of discourse or the press; or the privilege of the individuals to amass serenely what’s more, to a request of the Government for a change of complaint.

THE POSITION OF FREEDOM OF SPEECH AND EXPRESSION IN ACCORDANCE TO INTERNATIONAL CONVENTIONS

The right to freedom of speech and expression is covered under various international conventions, which are as follows,

a)     Articles 13, 20, 23, 29 of the Universal Declaration of Human Rights, 1948.

b)     Article 22 of the International Covenant of Civil and Political Rights, 1966.

c)     Article 11 of the European Conventions on Human Rights, 1950.

d)     Article 6, 12 of the International Covenant on Social, Economic, Social, and Cultural Rights, 1966

e)     Article 19 of the Universal Declaration of Human Rights, along with Article 19 of the International Covenant on Civil and Political Rights, 1966 declares that the right to freedom of speech and expression is extended to the press as well.

Article 10 of the European Conventions on Human Rights, 1950 states that

Ø  Everybody has the option to the opportunity of articulation. This privilege will incorporate the opportunity to hold assessment, to get and confer data also, thoughts without impedance by the open power and in any case of wilderness. This article will not keep the states from requiring the authorizing of broadcasting, TV, or film undertaking.

Ø  The activity of this opportunity, since it conveys with its obligation and duties, might be dependent upon such customs, conditions, limitation or punishment as are recommended by the law is also essential in a democratic country, in the light of a legitimate concern for the national security, or to save the nation from a public outcry or for various other reasons.

FREEDOM OF SPEECH AND EXPRESSION VIS-À-VIS INDIAN CONSTITUTION

The individuals of India provided for themselves, the Constitution of India, with a perspective to make it Sovereign, Democratic, Socialist, Secular, and Republic. India is a democratic country whose constitution enables each and every citizen with the right to freedom of speech and expression. One of the primary objectives of the Indian Constitution in accordance with its preamble is to make sure about the liberty of thought and expression to all its citizens. Opportunities for expression are among the chief of human rights. It is the correspondence and down to earth utilization of individual opportunity of thought. Regardless of the arrangement of the Organization, different constitutions make notice of the opportunity of the freedom of speech and expression.

The right to free speech is absolutely indispensable for the prevention of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all even the most minorities. [7].

Article 19 (1) (a) of the Indian Constitution gives its citizens the right to freedom of speech and expression, but this right is not absolute in nature and is subject to a restriction which may be imposed by the government in accordance with article 19 (2).

In accordance with this article, every citizen has the right to express their opinions until this speech of delivered by them does not result in violence or is not in form of hate speech or is not defamatory in nature.

MEDIA AN INSTRUMENT OF EXPRESSION

The media world serves as the best communicator of information and the best instrument of expression. Exercise of rights of freedom of expression is the professional duty and the character work of media, whether it is print or electronic media. The Media gets as a mass communicator, it enjoys this freedom for promoting the public good and for informing people in general as to the state of affairs in every sphere of life and liberty [8].

In a democratic country like India, the media is considered the fourth pillar of the nations, the media plays a very pivotal role in communicating the information pertaining to the executive, the judiciary and the legislative, in other words, the media fills in the gaps between the people and the people who govern this nation.

“Mr. C. Rajagopalachari, the Governor-General of India, had led emphasis on the fact that “A free press is an essential limb of the democracy as a parliament freely elected by the people or an Independent judiciary”[9].

Justice Krishna Iyer in his article “Free press in a hungry Republic” stated “The philosophical basis for freedom of publication and circulation is the social purpose of supplying unadulterated information without tendentious presentation, readily and the right time. And the Constitutional rights stem from political philosophy [10].

The Government of India felt that giving the media too much leverage would result in people misusing this right by delivering hate speech or expressing their opinion about some other citizens which could be defamatory in nature thus, the government of India through Section 66, 66-A of the Information Technology Act 2000 wanted to criminalize hate speech over online content. The constitutionality of the above said sections were questioned before the apex court after many people were arrested without giving them the proper reason behind their arrest. Finally, in the year 2015 in the case of “Shreya Singhal v. Union of India, the court struck down the following section as it placed an arbitrary and disproportionate restriction on the freedom of speech. The court in this case also held the speech available online should be accorded the same level of constitutional protection as the freedom afforded offline. When the court examined section 66 and 66-A with article 19 (1) (a) of the Constitution of India, it found it to be inconsistent as it fell beyond the reasonable restriction as mentioned under article 19 (2) [11]”.

Hate speech on social media platforms has increased over the years, and this has been a topic of concern for many governments across the globe. In 2016, Facebook, Twitter, YouTube, and Microsoft signed the European Union Code of Conduct on Hate Speech. According to this code, social media companies have made “public commitments” to curtail hate speech online[12].

In 2017, Germany passed an anti-hate speech law, which imposes fines on social media companies for their failure to take down hate speech within a certain time frame[13].

Specifically, in the Indian Context, the Government of India may restrict an individual from accessing certain information which is available if the content posted falls under the 6 restriction as stated in article 19 (2) of the Indian Constitution, for example, if the content goes against public order, is against the national security of the country, etc.

CONCLUSION

Thus, to conclude this article the author would like to mention certain points, even though the right of the press is not directly mentioned under article 19 (1) (a) of the Constitution of India. The Apex Court through many of its judicial pronouncements had come to the conclusion that the right of the press would also be protected constitutionally under article 19 (1) (a). This means that no citizen or online platform should be held liable for passing information, unless and until the information is sensitive in nature or is in form of hate speech, or is defamatory in nature.

The Government before preparing any laws regarding the content that is posted over the internet should keep in mind the constitutional mandate and should make sure that that law is not beyond the ambit of reasonable restrictions in an attempt to curb hate speech, the government also needs to draw a line when it comes to mere criticism of the government by a citizen is not sedition as it’s the opinion of the particular city.

The government has to make sure that every person gets an equal opportunity to express their views through the online medium, as freedom of speech and expression of the media is an essential element of a democratic country.

REFERENCE

[1] Jack M. Balkin, Digital Speech and Democratic Culture: Theory of Freedom of Expression for the information Society, 79 N.Y.U Rev, 1,2, (2004).

[2] See Timothy Garton Ash et al, GLASNOST: Nine ways Facebook can make itself a better Forum for free speech and democracy, Reuters Inst. Stud. J., https:\\reutersinstitute.politics.ox.ac.uk/sites/default/files/2019

[3] On the characterization of online speech governance as “pluralist” see generally Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, 51 UC Davis L. Rev, 1149, 1186-93 (2018)

[4] Lon L. Fuller, “The morality of Law”, 184-186 (1963), [Cited in Dr. Madhubhusi Sridhar, The Law of Expression, An Analytical Commentary on the Law of Media 20 (Asia Law House, Hyderabad (2007)].

[5] Abrams v. US 250 US 616, 630-631 (1919).

[6] Report of the Second Press Commission, Vol 1, 34-35.

[7] Speiser v. Randall, 357 US 513

[8] Supra note at 4

[9] https:\\shodhganga.inflibnet.ac.in/bitstream/1063/36776/11/11_chepter%202.pdf.

[10] Justice V.R. Krishna Iyer, Law, Freedom and Change 68 (East West Press Pvt, Ltd, New Delhi, 1975.)

[11] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[12] Alex Hern, Facebook, YouTube, Twitter and Microsoft sign EU Hate Speech Code, The Guardian (31^st May 2016).

[13] Jefferson Chase, ‘Facebook slams proposed German ‘anti-hate speech’ social media law’ Deutsche Welle (Germany, 29^th May 2017.