The more time you spend in India, the more you realize that this country is one of the world’s greatest wonders a miracle with a message. And the message is that democracy matters”. 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. Article 19 of the Indian Constitution provides freedom of speech as the fundamental right embodied in part III.
This Art. give fundamental right to every citizen to enjoy freedom of speech without hurting the other.
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. Social media in present world have become an important part of individual’s life.
Almost all the people in the world are becoming part of social media even judges have also been influenced by this social media. This Social media sometime affect the judgement of court. Judge as a human being also use social media i.e. Facebook, Tweeter blog etc.
Fundamental right to speech and expression has been hampered by the arbitrary use of the so called cyber laws of the nation, particularly Section 66A of the Information Technology Act, 2000. This section gives arbitrary power to police to arrest person by interpreting this section for their use.
Because of this arbitrariness the section 66A of IT act is unconstitutional and should be stuck down by the court of law. 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.
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. Andreas Kaplan and Michael Haenlein define social media as “A group of internet -Based application that build on the ideological and technological foundation of Web 2.0, and allow the creation and exchange of user- Generated context. ” “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. FREEDOM OF SPEECH AND EXPRESSION 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.
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 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. ”1 “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. ”2 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 mode.
In the light of Moon’s argument, the importance of freedom of speech and expression while using social media can be better understood. FREEDOM OF SPEECH AND EXPRESSION AND SOCIAL MEDIA/INTERNET 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 movement, 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. Emphasising the importance of internet, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his Report, which was submitted to the Human Rights Council, stated that the internet has become a key means by which individuals can exercise their right to freedom and expression and hence, internet access is a human right.
Report further stressed that States should ensure that internet access is maintained at all times, even during times of political unrest. 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 19 of the Universal Declaration of Human Right and Article 19(2) of the International Covenant on Civil and Political Right 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. RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION 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 immu nity for every possible use of language and prevents punishment for those who abuse this freedom. Article19 (3) of the International Covenant on Civil and Political Right 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
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 CYBER LAWS OF INDIA AND SOCIAL MEDIA 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 and67B 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 under Section 43, 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. 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. Section 66 A of Information Technology Act 2000 which provide for the punishment for sending offensive messages through communication service provide three years punishment and fine or both for sending message of grossly offensive or menacing character.
For example: Fake profile of president by imposter, fake profile had been made by imposter in the name of formal President Hon’ble Pratibha Devi Patil, on social networking website, Facebook . In another case of Bomb Hoax mail case, A 15 year-old teenage of Bangalore in 2009 was arrested by the cyber-crime investigation cell (CCIC) for allegedly sending a hoax e-mail to a private news channel. 66A. Punishment for sending offensive messages through communication service, etc.
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; or (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, shall be punishable with imprisonment for a term which may extend to three years and with fine shall be punishable with imprisonment for a term which may extend to three years and with fine. Section 66A which punishes persons for sending offensive messages is overly broad, and curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution. Justice Bhagwati in Maneka Gandhi case3 said that a law should be just, fair and reasonable. Formal Chief Justice Altamas Kabir and Justice J. Chelameswar, noted that the wording of Section66A is not satisfactory.
It is made very wide and can apply to all kinds of comments. The fact that some information is “grossly offensive” (s. 66A(a)) or that it causes “annoyance” or “inconvenience” while being known to be false (s. 66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). There is no clear explanation of those words in this section.
The expressions used in the Section are “vague” and “ambiguous” and that 66A is subject to “wanton abuse” in view of the subjective powers conferred on the police to interpret the law. It give excess power to administration for example: On February 6, 2013, Sanjay Chaudhary was arrested under section 66A of the Information Technology (IT) Act for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav on his Facebook wall.
However, the incident that rocked the nation was the arrest last November of two young women, Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on Facebook that questioned the shutdown of Mumbai following the demise of Shiv Sena Supremo Bal Thackeray. Looking at the construction of that word of Sec 66(A), it unintentionally prevent organisations from using proxy servers. Furthermore, it may also prevent remailers, tunneling, and other forms of ensuring anonymity online. This doesn’t seem to be what is intended by the legislature.
According to Government of India, section 66A, introduced in the 2009 amendments to the IT Act, has been taken from Section 127 of the U. K. Communications Act, 2003 it has already read down by HOUSE OF LORDS on the grounds that Parliament of U. K. could not have intended to criminalise statements that one person may reasonably find to be polite and acceptable and another may decide to be ‘grossly offensive and regard that section as U. K. ’s worst provisions MEANING OF TERM “GROSSLY OFFENSIVE” In Director of Public Prosecutions v.
Collins4 case before House Of Lords, arising out of racist references in messages left by a constituent on the answering machine of a British MP, the House of Lords laid down a seminal test for determining whether a message is ‘grossly offensive. ’ Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. ” The House of Lords added that “there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.
” Most importantly, the House of Lords held that whether a message was grossly offensive did not depend merely on the degree of offence taken by the complainant but on whether it violates the basic standards of an open and just multi-racial society. DIFFERENCE BETWEEN SEC. 127 OF U. K. COMMUNICATION ACT, 2003 AND SEC. 66A OF I T ACT Section 66A (a) refers to the sending of any information through a communication service that is ‘grossly offensive’ or has ‘menacing character’. In the U. K., Section 127(1)(a) makes the sending of ‘matter that is grossly offensive or of an indecent, obscene or menacing character’ an offence. The punishment for the offence in Section 127(1) is a maximum of six months’ imprisonment or a fine of ? 5,000 while Section 66A imposes a much more serious punishment of imprisonment up to three years and a fine without limit. Therefore, Section 66A(b) of the IT Act is not the same as Section 127(1)(b) of the U. K. Communications Act, 2003 in terms of scope of the offence or the punishment.
PUNISHMENT – ARTICLE 14 ; 21 OF INDIAN CONSTITUTION Punishment under this act appeared to be violative of Article 21 (right to life) and Article 14 (non-discrimination/equality). This law is not consistent with the notions of fairness while it imposes an equal punishment for different intensive offence. Section is unreasonable and arbitrary in nature. Punishment for this purposes disparate belonged together in a single clause is quite astounding and without parallel (except in the rest of the IT Act).
That’s akin to having a single provision providing equal punishment for calling someone a moron (“insult”) and threatening to kill someone (“criminal intimidation”). There is no countervailing interest in criminalizing false and persistent “insults”, etc. , that will allow those parts of this provision to survive the test of ‘reasonableness’ under Art. 19(2). Constitution of India is much stronger than that of the unwritten constitution of United Kingdom. In India, Judiciary has the power of judicial review, whereas in United Kingdom parliament is consider supreme.
Putting those two aspects together, a law that is valid in the United Kingdom might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Art. 19(2). That raises the question of how they deal with such broad wording in the UK. SECTION 66A – ARTICLE 19 OF INDIAN CONSTITUTION Section 66A of IT act violates Art. 19 of Indian constitution. This section is against the fundamental right to speech and expression. Right under Art. 19 is not absolute right. Art.
According to the government, section 66A is the reasonable restriction that is imposed on freedom of speech and expression but Under Article 19(2), restrictions on freedom of speech and expression are reasonable if they pertain to any of the listed grounds, such as sovereignty and integrity of India, etc. But under Section 66A, restrictions have been placed on freedom of speech and expression on several other grounds, apart from those mentioned in the Constitution. Therefore it is violates Art.
The current equivalent laws in USA is US Federal Anti-Cyber-Stalking law, this law prohibit harassment or stalking legislation. This act awards punishment up to one year or fine of up to $ 1000. In Australia, the Stalking Amendment Act (1999) was introduce to include the use of any form of technology to harass a target as forms of “criminal stalking. ” In Poland Stalking, there is Polish Criminal Code 2011 which including cyber stalking as a criminal offence, this act awards six month punishment SOCIAL MEDIA – JUDICIARY
Improved communications technology and social media, such as Twitter, Google + and Facebook, are changing the face of journalism. Media like affecting all the institutions of the Government also affect the Judiciary. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. Media itself does a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case.
By this way, it prejudices the public and sometimes even judges and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving all his rights and liberty unredressed. Results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Other than this, Twitter, Facebook, and other forms of social media are causing difficulties for judges who are trying to administer fair trials.
For example, what rules should there be, if any, on whether judges tweet during a case? Should courts be able to monitor the social-networking contacts of attorneys during a trial, and what about witnesses or even parties? Should there be limits on all use or just limits on what is said? The questions seem endless, and the answers certainly are not easy. Should judges or their campaigns be able to use Facebook and have “friends” that may be potential parties before the court or attorneys appearing in court?
Is it appropriate for judges to have a personal Facebook page separate from a professional one, or is that activity unbecoming the judiciary?. Right now there is a patchwork of rulings on these issues but, for the most part, no definitive rules exist. If there are no rules, it can become a treacherous terrain for media-savvy judges to navigate. Some of the people are totally against the blog of judges but some other advocate that and see it as a way to educate the public about the court function. 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. Section 66A certainly does not engage in the delicate balancing required to pursue the legitimate objective of preventing criminal intimidation and danger through social media without going no further than required in a democratic society to achieve that end.
The drafters of Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world. Therefore, the legislative restrictions on freedom of speech in Section 66A (b) cannot be considered as being necessary to achieve a legitimate objective. Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech.
If political speech, that is, criticism of politicians and exposure of corruption continues to be punished by arrest instead of being protected, India’s precious democracy and free society will be no more. Hence, a specific legislation is desirable to regulate social media. However, there are many practical difficulties which may arise while doing so. There is a very thin line which demarcates the enjoyment of one’s right and the violation of the enjoyment of else’s right in the process. In social media, the exercise of freedom of speech and expression by one may result in the invasion of privacy and defamation.
The provision should be made in accordance with the reasonable restriction provided under article 19(2) of Indian Constitution. While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalized (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. A provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like “annoyance”, and should not be made “persistent”.
The act should define the punishment according to the malic intension of the offender, less punishment should be awarded for less intensity of offence. Media should not be allowed to call a person as an accused before a court of law held that person as an accused. A blog or a Facebook account should be made in the name of Courts, to provide information on legal issue.
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