I believe that Freedom of Speech and Expression should not be dependent on the issue at hand or individuals involved. It has to be consistent, irrespective of whether that consistency is convenient or not. I also believe that Freedom of speech and Expression, like all other freedoms, should not be absolute. If the State and/or Society have to guarantee such freedoms for all, it is imperative that these freedoms be subjected to reasonable restrictions as per the acceptable norms of society and existing laws of the State.
(For a detailed discussion on the question whether Freedom of Expression is absolute or not, you may refer to my earlier posts; ‘Artistic Freedom- Is it Absolute?’ http://confused-ambadi.blogspot.com/2011/06/artistic-freedom-is-it-absolute.html and ‘Addendum to the Blog on Artistic Freedom –Is it Absolute?’ http://confused-ambadi.blogspot.com/2011/06/addendum-to-blog-on-artistic-freedom-is.html )
Just to make my position on the issue clear, let me quote from the above referred posts:
“Between the two extreme views above (one of absolute and unfettered freedom and the other of absolute restriction based on censorship and controls), we have to find a line which has balance of convenience, even if not the ideal, so that we can ensure maximum social harmony with minimum interference in artistic freedom. It is towards this end that I suggested self-restraint as the method, wherein the artist himself acts as any prudent artist would act in the given situation. I am sure there are thousands of ways to express one’s creativity and ideas without hurting other normal people’s sentiments.”
“Self-discipline or 'Swatantrata' has been advocated in Indian culture from ancient times. ‘Swa’ means self; ‘Tantra’ means method, discipline, or rules. So Swatantrata means acting according to our own methods or rules, which is the ideal type of 'freedom'” (Comment by Manju Joglekar)
To paraphrase, Freedom of expression is not absolute. But, external censorship is not desirable as that can stifle genuine speech and expression of ideas. Therefore, we as a society must ensure that the need for external control is brought down to a minimum by exercising self discipline and being responsible for what we express or speak.
What I said above is the ideal situation. However, like many other aspects of human life, even this ideal is difficult to attain and therefore, some level of external control has always been the norm in civilised societies. Laws of all the modern countries prescribe certain outer limits for the freedom of expression beyond which the act gets attached with criminal or civil liability. This is true even for India.
Legal position in India
In India, Freedom of Speech and Expression has an exalted position as one of the Fundamental Rights guaranteed under the Constitution. Clauses (1) (a) and (2) of Article 19 of the Constitution prescribe the law as follows:
Article 19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression; ......
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause 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.
Therefore, Constitution on the one hand gives freedom of speech and expression to all citizens and on the other hand, validates laws that impose reasonable restrictions on the exercise of the right. Please note that the permissible grounds for imposing such reasonable restrictions include public order, decency, morality or in relation to defamation or incitement to an offence, among others. This is to ensure that the unbridled freedom is not misused by unscrupulous elements to create social unrest or to negate the right of others to have privacy, decency and morality.
Now that the Constitutional provisions on the Freedom of Expression and reasonable restrictions thereon are clear, let us look at the criminal aspects of such expressions.
Section 499 of Indian Penal Code
This section prescribes the criminal law relating to Defamation as follows:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”
Having established the basic principle, the Section further exempts the following situations, so as to ensure dissemination of information which is in good faith and for public good are not affected by it:
“First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.”
So, the criminal law of the country is also very clear. Unless a defaming expression can be proved, as a question of fact, as falling under any of the above exceptions, it will be a crime and punishable under Section 500 of the Act.
Under the law of Torts applicable to libel or slander an aggrieved person can file a civil suit for damages against any person publishing any material that destroys his reputation. Two high profile cases of recent times are, one in which Dr Subramanian Swamy was ordered to pay monetary compensation to Mr Ram Jethmalani and the other ongoing case where TimeNow channel was asked to pay monetary compensation to a retired judge of the Supreme Court.
Internet and Improper Content
As you may have noted, none of the above legal provisions exempt Internet from its purview. There is no impunity for the internet users. Merely because I am logged on to an Internet, I do not cease to be subject to the law of the land.
But if we scan through the social media like Twitter or Facebook or even many blog pages, we will be appalled at the gross level of indecent and defamatory contents. This is not to say, all the content on these sites are bad. I can vouch for the usefulness of the majority of contents, I myself being an active member of some of these platforms, gaining tremendous advantage through access to information.
However, should that utility and benefits of these platforms be allowed to be misused as an excuse by criminal and uncivil elements while spreading their venomous and damaging content? We all know how terror organisations like Al Qaida and others have been using Internet as a means of disseminating incendiary propaganda throughout the world! We have heard how bomb making is made child’s play by Internet sites that provide all necessary guidance for the same. We know how Internet based communication systems were used by the terror masters to guide their foot soldiers during terror attacks. We know how Internet is used to create an elaborate network of paedophiles for sharing child pornography across the world.
Like the real world out there, in Internet too, angels do not have wings or devils the tails!
Many of us may be outraged at the efforts of State to curb the absolute freedom on Net because you and I are exercising that freedom. When a TV Channel or a News Paper is subjected to same level of legal restrictions, we are not so much concerned because that is affecting those evil journos and editors, whom many of us any way subject to filthy abuse online, on a day to day basis.
However, Law cannot or does not make such distinctions. It is as much applicable to the Internet content as to the published contents on print and broadcasting media. If at all, the difference only arises due to the technological peculiarities of the medium and not due to any special status!
Peculiarities of Internet Contents
Let us look at what makes the Internet content special. Internet does not have borders. It allows fairly anonymous posting of contents from any part of the world. Its reach is instantaneous. Unlike in the print media etc, where dissemination of an offending material can be stopped through court injunction etc, in Internet, once the content is posted the dissemination cannot be stopped until it is too late.
In the real world, editors exercise editorial control over what appears in their publication. Therefore, anything inappropriate appearing in their medium the editors and publishers are equally liable. However, this is not the case with Internet. The service providers who make the platform available would find it humanly impossible to screen each and every contents being uploaded on their site, due to the sheer volume. That means, service providers do not usually apply their mind into what appears on their sites and therefore, holding them responsible for such contents will not only cause great harm to them but also will destroy the free flow of information on the Internet.
In order to address these issues, as well as new forms of offences peculiar to Internet, India enacted the Information Technology Act, 2000. Various provisions of this Act deal with specific offences related to Internet. Lets us quote some of the offences relevant to our discussion.
Relevant Provisions of the Information Technology Act, 2000
“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 makes 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 tthree 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, image, audio, video and any other electronic record, which may be transmitted with the message.”
66E. Punishment for violation of privacy.- Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both
66F. Punishment for cyber terrorism.- (1) Whoever,-
(A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by –
(i) denying or cause the denial of access to any person authorized to access computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation or exceeding authorized access; or
(iii) introducing or causing to introduce any Computer Contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under section 70, or
(B) knowingly or intentionally penetrates or accesses a computer resource without authorization or exceeding authorized access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to 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, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life’
67. Punishment for publishing or transmitting obscene material in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to two three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. - Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.- Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
From the above Sections of the IT Act, it is very clear that Indian Law, as it stands today, makes it an offence to disseminate such contents online. By any stretch of interpretation, no one can say that these sections create unreasonable restrictions on Freedom of Expression. What is an offence off line is expressly made an offence online as well. Even if someone thinks so, the remedy is to demand change in the law than blame someone who is trying to implement it.
However, due to some false sense of anonymity (establishing the identity of a person is not that difficult in most cases) or simple ignorance, lot of us take the Internet for granted and do not think twice before posting any offensive material or comments that might hurt national security, public order, decency or morality or being defamatory to individuals or organisations. Many of the otherwise wise men and women do not consider it as an offence to post or to disseminate through resending such posts, containing highly defamatory or offensive materials, online.
As we discussed at the beginning of this section, often, service providers who hosts the offensive material are not cognizant of the contents being posted. Therefore we cannot subject them to the same rigours as publishers or editors of a book or news paper. This issue has also been fairly dealt with, by the IT Act. Section 79 of the Act deals with this aspect:
79. Exemption from liability of intermediary in certain cases.
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf
(3) The provisions of sub-section (1) shall not apply if:
(a) the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation: For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.
So, the section specifically exempts the service providers (intermediary) from liability for third party contents hosted by them, provided they have not actively contributed or conspired in making such an offensive content to be posted there. For example, If I post a tweet containing defamatory reference to the manner in which an individual’s mother had managed to conceive him (we get to see many such tweets every day, though much more direct in their approach!) or accusing a person of being an idiot or corrupt etc without any evidence or proof to back it up, I can be prosecuted for the offence of defamation and/or offences under IT Act, but the Twitter itself will not be made liable for hosting/publishing that tweet.
However, the above exemption is subject to the condition that ‘the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf’.
Therefore, Central Government is entitled to prescribe such guidelines as it may deem fit to prevent publication of offensive materials through Internet and the service providers shall be bound to observe those guidelines. Any failure to do so will make the service providers equally responsible for an offence committed through their platform.
Same will be the case, if the service provider refuses to take down an offensive content when a complaint is made to it, through proper authority or reported by members of general public. Failure to do so will amount to conniving in publication of the offensive material. It would also amount to not exercising due diligence while discharging one’s duties.
This being the law of the land, I do not understand the outcry over social media on a request made by the Minister for Information & Technology, Mr Kapil Sibal, to the major service providers for social media, like Google, Microsoft, Facebook and Twitter! As per news reports, the Minister asked them to institute measures to ensure self regulation on the contents being published on their sites. This amounts to merely asking them to follow the fist condition of exercising due diligence by them. Therefore that was perfectly legal and within the duties entrusted upon him by the IT Act. If at all, the kind of Hash tags and filthy abuses bestowed upon the Minister only reinforces the need to ensure self discipline or enforced discipline over social media. Expressing dissent can be done in a more issue based and civilised manner than subjecting the person to abuse and ridicule.
There is no legal sanction for the concept of absolute freedom of expression over Internet. Neither there is any moral sanction for absolute freedom that extends to using derogatory or abusive language against any individual, community or religion. Right to criticise does not include right to abuse. While learning the use of powerful social media, we must also learn the duties and responsibilities associated with it. Our right to post content is subject to the same laws that prevent a paedophile from posting child pornography on Internet or a journalist publishing a defamatory story in a news paper!
While I have consciously tried to stay away from the politics while dealing with this subject, I cannot but point out the danger in being selective while supporting some bans and opposing other attempts to regulate; merely on the basis of one’s political convictions. Today, it may be morphed picture of Sonia Gandhi and Manmohan Singh. Tomorrow, it could well be that of Sushma Swaraj and LK Advani or God, Jesus and Allah or even worse, yours or mine! Parties and individuals may come and go in a democracy, but the principle of law should not be tampered with.
Finally, criminal law and regulations are in the statute books to deal with aberrations and not general public. Merely because there is a law of defamation you and I do not end up in jails; at the same time, we cannot demand removal of law itself since it is needed for use when some criminal or other commits such an offence. Provisions to deal with criminal activities on Internet should not be opposed merely because you and I intend to use Internet for expressing our genuine concerns/ideas. We must be cognizant of the realities that there are elements who misuse the Internet for spreading offensive material and we need the law and regulations to effectively deal with them.
PS: Apologies for the long post.. But I thought quoting the relevant Sections of law here is a must for reference !