SOUTH CALCUTTA LAW COLLEGE

MOOT COURT SOCIETY GROUP:- C

FREEDOM OF SPEECH AND EXPRESSION

IN THE ERA OF INTERNET
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INTRODUCTION

“I disapprove of what you say, but I will defend to the death your right to say it.”1
India is one of such paradises on earth where you can speak your heart out without the fear of
someone gunning you down for that, or, it has been until now. Even if the situation of Indians
is a lot better than that of their fellow citizens of other nations, the picture is not really
soothing or mesmerizing for Indians any more. This observation is being made with regard to
the exercise of the right of freedom of speech and expression in the context of social media
and the hurdles placed on that by the arbitrary use of the so called cyber laws of the nation,
particularly Section 66A of the Information Technology Act, 2000. Before delving into the
issue in details, it is but desirable to first understand the concepts of social media and
freedom of speech and expression.
NATURE OF STUDY

The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been
witnessed who are advocating for change, justice, equality, accountability of the powerful
and respect for human rights. In such movements, the Internet and Social Media has often
played a key role by enabling people to connect and exchange information instantly and by
creating a sense of solidarity. The UN Human Rights Committee has also tried to give
practical application to freedom of opinion and expression in the radically altered media
landscape, the centre stage of which is occupied by the internet and mobile communication.
Moreover, Article 19 of the UDHR2 and Article 19(2) of the ICCPR3 also provides for
freedom of speech and expression even in case of internet and social media. Thus, in the
present paper we will see that freedom of speech and expression is recognized as a
fundamental right in whatever medium it is exercised under the Constitution of India and
other international documents. And in the light of the growing use of internet and social
media as a medium of exercising this right, access to this medium has also been recognized
as a fundamental human right.

OBJECTIVES OF THE STUDY

1. TO OBSERVE THE DEFINITION OF SOCIAL MEDIA

2. TO OBSERVE THE STATUS OF FREEDOM OF SPEECH IN INDIAN

CONSTITUTION

3. TO OBSERVE THE RELATION OF FREEDOM OF SPEECH WITH

DEFAMATION.

1 S.G. Tallentyre
2 Universal Declaration of Human Rights, 1948
3 International Covenant on Civil and Political Rights, 1966
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4. TO OBSERVE THE ROLE OF INTERNET AND SOCIAL MEDIA IN THE

FREEDOM OF SPEECH AND EXPRESSION.

5. TO OBSERVE THE REASONABLE RESTRICTIONS RELATED TO FREEDOM

OF SPEECH AND EXPRESSION AS LAID DOWN BY THE CONSTITUTION OF
INDIA.

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1. What is Social Media?

Social media comprises primarily internet and mobile phone based tools for sharing and
discussing information. It blends technology, telecommunications, and social interaction and
provides a platform to communicate through words, pictures, films, and music. Social media
includes web-based and mobile technologies used to turn communication into interactive
dialogue. Social media can be defined as any web or mobile based platform that enables an
individual or agency to communicate interactively and enables exchange of user generated
content. Andreas Kaplan and Michael Haenlein define social media as “a group of internet
based applications that build on the ideological and technological foundations of Web 2.0, and
that allow the creation and exchange of user- generated content.” “Web 2.0” refers to Internet
platforms that allow for interactive participation by users. “User generated content” is the name
for all of the ways in which people may use social media. The Organization for Economic
Cooperation and Development (OECD) specifies three criteria for content to be classified as
“user generated:”
(1) it should be available on a publicly accessible website or on a social networking site that is
available to a select group,
(2) it entails a minimum amount of creative effort, and
(3) it is “created outside of professional routines and practices.”
Another variant of social media is mobile social media i.e. when social media is used in
combination with mobile devices it is called mobile social media. Due to the fact that mobile
social media runs on mobile devices, it differentiates from traditional social media as it
incorporates new factors such as the current location of the user (location-sensitivity) or the
time delay between sending and receiving messages(time-sensitivity).
2. What is Freedom of Speech and Expression as according to the Constitution of
India?
Freedom of speech and expression is broadly understood as the notion that every person has
the natural right to freely express themselves through any media and frontier without outside
interference, such as censorship, and without fear of reprisal, such as threats and persecutions.
Freedom of expression is a complex right. This is because freedom of expression is not absolute
and carries with it special duties and responsibilities therefore it may be subject to certain
restrictions provided by law. The term freedom of expression itself had existed since ancient
times, dating back at least to the Greek Athenian era more than 2400 years ago. The following
are some of the most commonly agreed upon definitions of freedom of expression that are
considered as valid international standards: # “Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers.” #
“Everyone shall have the right to hold opinions without interference. Everyone shall have the
right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice.” Similarly, Article 19(1)(a) of the
Constitution of India also confers on the citizens of India the right “to freedom of speech and
expression”. The freedom of speech and expression means the right to express one’s
convictions and opinions freely by word of mouth, writing, printing, pictures or any other

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mode. It also includes the right to propagate or publish the views of other people. The term
‘freedom of speech and expression’ includes any act of seeking, receiving and imparting
information or ideas, regardless of the medium used. Based on John Milton’s arguments,
freedom of speech is understood as a multi- faceted right including not only the right to express
or disseminate information and ideas but also including the right to seek, receive and impart
information and ideas.
The Indian legal system has special importance to Freedom of Speech and Expression. In the
case of Shreya Singhal v Union of India4 the said court struck down Section 66A of
the Information Technology Act, 2000, relating to restrictions on online speech, as
unconstitutional on grounds of violating the freedom of speech guaranteed under Article
19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by
virtue of being a 'reasonable restriction' on the freedom of speech under Article 19(2).
3. How Freedom of Speech and Expression is Related to Defamation?
The freedom of speech and expression is a constitutional right which is guaranteed in the
First Amendment of the U.S. Constitution and Article 19 of the Indian Constitution. It is a
privilege that demands the right to express one’s own convictions and opinions freely. The
main purpose of this fundamental right is to securing individual democracy by providing the
freedom of a citizen to express his opinions by words, writing, printing, banners, signs, etc.
According to the Law of Defamation, “Defamation is the publication of a false and harmful
statement by one person concerning another individual without lawful justification.
Defamation results the injury of the reputation of another individual.”
It is of two types- Libel & Slander.
 Libel is the publication of a statement which is untrue and harmful and amounts to
damage another person’s reputation and career unlawfully.
 Slander is stating of false and harmful statement through spoken words and gestures
tending to injure another’s reputation in society.
THE CLASH
In the field of Defamation Law, we can see a few cases of defamation where the Judges were
confused whether it was under defamation or freedom of speech. And in most of those cases
they gave a verdict for the right to speech and expression.
For instance:-
RAJ KAPOOR v LAXMAN :- In a famous case of ‘Raj Kapoor v. Laxman5 (1979)’ , a well
published film ‘Satyam, Sivam, Sundaram’ became the subject matter of a prosecution
presumably a pro bono public proceeding, by the respondent against the petitioner and others
i.e., producer, photographer and other casts of the film. The complaint alleged that the title
was misleadingly repugnant and amused the genuinity into corruption. The Magistrate, after
re-examining and cross-examining some witnesses, recognized the offence and issued notice
against the accused. Therefore, the producer who was the present petitioner, appealed before
the High Court on the grounds that the criminal proceeding was an abuse of the judicial
process and engineered by ulterior considerations and that no prosecution could be legally
sustained in the circumstances of the case, the film having been certified for public show by
the Board of Censors. The High Court, however, dismissed the petition, ignoring that the film

4 A.I.R. 2015 S.C. 1523

5 1980 S.C.C. (2) 175; https://indiankanoon.org/doc/749339

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had been given 'A' certificate by the Central Board of Film Censors and finding in the
prosecution neither frivolous nor vexatious nor any material to quash the proceedings. The
film producer has arrived in this Court hopefully. The Court held that, “Going to the basics,
Freedom of expression is fundamental. The censor is not the moral tailor setting his own
fashions but a statutory gendarme policing films under Article 19(2) from the angle of public
order, decency or morality. These concepts are themselves dynamic and cannot be whittled
down to stifle expression nor licentiously enlarged to promote a riot of sensual display.
Anyway, the appeal must succeed and we extinguish the prosecution by the order.”
LATEST JUDGMENT IN ARVIND KEJRIWAL CASE (2015):-
The Aam Aadmi Party Leader Arvind Kejriwal was accused of four defamation cases which
were tried by the Delhi Courts. The four cases were filed by Nitin Gadkari (Ministry of
Union Transport), Amit Sibal (Son of Kapil Sibal), Pawan Khera (Ex-political Secretary of
Sheila Dikshit) and Advocate Surender Sharma as Kejriwal made some statements which was
related about their corruption charges. Therefore, Kejriwal filed a petition before the Supreme
Court. In that petition, he asked for the de-criminalization of defamation and said that
‘defamation should remain only a civil wrong and its position in the IPC trampled upon the
fundamental right to freedom of speech’.
Therefore The Supreme Court suspended the proceedings of the Trial Court and held that
“Defamation is an offence under the Indian Penal Code, but we need to delve on whether it
finds any space under Article 19(2) of the Constitution as a reasonable restriction on freedom
of speech and expression, guaranteed under the preceding constitutional provision”.

NEW DEFAMATION BILL

The drafted defamation bill, which was published in March 2011, provides solution to various
issues. The main object of the bill is to ensure a fair balance between defamation and freedom
of speech and expression. Under the provisions of the New Defamation Bill, the claimant will
have to show their amount of damage in order to file a suit for Defamation. According to the
Ministry of Justice, “The new bill will also ensure the threat of libel proceedings is not used to
‘frustrate robust scientific and academic debate’.” Therefore, the English Defamation Act came
into force in 2013.
4. How does internet and social media play an important role in Freedom of Speech
and Expression?
The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been
witnessed who are advocating for change, justice, equality, accountability of the powerful and
respect for human rights. In such movements, the Internet and Social Media has often played a
key role by enabling people to connect and exchange information instantly and by creating a
sense of solidarity. The UN Human Rights Committee has also tried to give practical
application to freedom of opinion and expression in the radically altered media landscape, the
centre stage of which is occupied by the internet and mobile communication. Describing new
media as a global network to exchange ideas and opinions that does not necessarily rely on the
traditional mass media, the Committee stated that the States should take all necessary steps to
foster the independence of these new media and also ensure access to them. Moreover, Article

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19 of the Universal Declaration of Human Rights (UDHR)6 and Article 19(2) of the
International Covenant on Civil and Political Rights (ICCPR)7 also provides for freedom of
speech and expression even in case of internet and social media. Thus, it is seen that freedom
of speech and expression is recognized as a fundamental right in whatever medium it is
exercised under the Constitution of India and other international documents. And in the light
of the growing use of internet and social media as a medium of exercising this right, access to
this medium has also been recognized as a fundamental human right.
5. What are the reasonable restrictions related to the freedom of speech and
expression as laid down by the Constitution?
The freedom of speech and expression does not confer on the citizens the right to speak or
publish without responsibility. It is not an upbraided license giving immunity for every possible
use of language and prevents punishment for those who abuse this freedom. Article 19(3) of
the ICCPR imposes restrictions on the following grounds:
(a) For respect of the rights of reputations of others
(b) For protection of national security, or public order, or public health or morals.
As per Article 19(2) of the Constitution of India, the legislature may enact laws to impose
restrictions on the right to speech and expression on the following grounds:
(a) Sovereignty and integrity of India
(b) Security of the State
(c) Friendly relations with foreign States
(d) Public order
(e) Decency or morality
(f) Contempt of court
(g) Defamation
(h) Incitement to an offence
A short analysis on Cyber Laws and social media in India and what role it plays in the
freedom of speech and expression.
Although there is no specific legislation in India which deals with social media, there are
several provisions in the existing so-called cyber laws which can be used to seek redress in
case of violation of any rights in the cyber space, internet and social media. The legislations
and the relevant provisions are specifically enumerated as under:
The Information Technology Act, 2000
(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and 67B
contain punishments for computer related offences which can also be committed through social
media viz. tampering with computer source code, committing computer related offences given

6 Cit. 2.
7 Cit. 3.

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under Section 43 of the said act, sending offensive messages through communication services,
identity theft, cheating by personation using computer resource, violation of privacy, cyber
terrorism, publishing or transmitting obscene material in electronic form, material containing
sexually explicit act in electronic form, material depicting children in sexually explicit act in
electronic form, respectively.
(b) Section 69 of the Act grants power to the Central or a State Government to issue directions
for interception or monitoring or decryption of any information through any computer resource
in the interest of the sovereignty or integrity of India, defence of India, security of the State,
friendly relations with foreign States, public order, for preventing incitement to commission of
any cognizable offence, for investigation of any offence.
(c) Section 69A grants power to the Central Government to issue directions to block public
access of nay information through any computer resource on similar grounds.
(d) Section 69B grants power to the Central Government to issue directions to authorize any
agency to monitor and collect traffic data or information through any computer resource for
cyber security.
(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable for any
third party information, data or communication link made available or hosted by him in the
Section 66A of the Information Technology Act, 2000. Of all these provisions, Section 66A
has been in news in recent times, albeit for all the wrong reasons. Before discussing the issue
in detail, it is desirable to first have a look at Section 66A, the provision itself. Section 66A of
the Information Technology Act, 2000 inserted vide Information Technology (Amendment)
Act, 2008 provides punishment for sending offensive messages through communication
service, etc. and states: Any person who sends, by means of a computer resource or a
communication device-
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill
will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages shall be punishable with imprisonment for a term which may extend to three years
and with fine.
Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
images, audio, video and any other electronic record, which may be transmitted with the
message. To add to the fear that this provision could be hugely misused, several incidents in
the recent past bear testimony to the same. A chronological order of such events is as follows:
(a) In April 2012, Ambikesh Mahapatra, a professor of chemistry in Jadavpur University in
West Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata
Banerjee on social networking sites.

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(b) In May 2012, two Air India employees were arrested by the Mumbai Police for putting up
on Facebook and Orkut content that was against a trade union leader and some politicians.
They were in custody for 12 days.
(c) In November 2012, Shaheen Dada was arrested for questioning the shutdown of Mumbai
following the death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was
“liked” and shared by her friend, Renu, who was also arrested by the Thane Police in
Maharashtra. In the face of widespread abuse of Section 66A, a writ petition has been filed in
the form of a public interest litigation in the Supreme Court challenging the section’s
constitutionality wherein it has been submitted that the phraseology of impugned Section is so
wide and vague and incapable of being judged on objective standards, that it is susceptible to
wanton abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution.
Admitting the writ petition, Division Bench of Supreme Court, comprising Chief Justice
Altamas Kabir and Justice J. Chelameswar, noted that the “wording of Section 66A is not
satisfactory. It is made very wide and can apply to all kinds of comments.”

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CONCLUSION

It is clearly evident that social media is a very powerful means of exercising one’s freedom of
speech and expression. However, it is also been increasingly used for illegal acts which has
given force to the Government’s attempts at censoring social media. Where on the one hand,
the misuse of social media entails the need for legal censorship, on the other hand, there are
legitimate fears of violation of civil rights of people as an inevitable consequence of censorship.
What is therefore desirable is regulation of social media, not its censorship. However, the
present cyber laws of India are neither appropriate nor adequate in this respect. An analysis of
the existing IT laws shows that there is unaccountable and immense power in the hands of the
Government while dealing with security in the cyber space. Even then, it is not sufficient to
check the misuse of social media. Hence, a specific legislation is desirable to regulate social
media. Keeping all this in mind, it is suggested that the Government should form a Committee
including technical experts to look into all the possible facets of the use and misuse of social
media and recommend a suitable manner in which it can be regulated without hindering the
civil rights of citizens.

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