Freedom of Expression and Internet—Some Myths

With the increasing penetration of internet and social media, society in general and governments in particular are faced with certain new challenges.  More and more human interactions and activities are now getting transferred from the real world to the virtual world, dissolving the very distinction between the two. 

The regulatory regimes for the real world are more or less settled across the globe.   However, the border defying nature of internet and the associated technological challenges are making it tough for the respective states to enforce their laws on the activities conducted through or over Internet.

Any effort by individual states to extend the law of that country to the affairs of Internet is met with a very high decibel campaign and protest.  Any such attempt is condemned as an affront to the right to freedom of speech- a fundamental right in countries like India. Let us analyse the reasons and factors behind the call for regulating Internet and the opposition thereto.

Is regulating Internet a major issue for the general public in any country? Not necessarily; when they have to deal with much more serious issues on a day to day basis.  However, the beneficiaries of the Internet are also the most important group that has the education and ability to influence public opinion in any country.  So, they are able to make a huge hue and cry over the curtailment of freedom of speech over the Net, as if all other freedoms are intact and absolute in their countries.

Why are we selective in our outrage over denial of freedoms? In my opinion, it is only because you and I are the beneficiaries of the Internet, that we raise our voices. In most other cases it is the poor and downtrodden, who are objects of the denial of freedoms and therefore we can sit back and watch the fun.

Is our cries justified? Yes and No. Yes, when a Government try to use draconian powers disproportionate to the objective, it is indeed justified. However, it is not justified to decry each and every measure that government introduce to enforce the law of the land over Internet.

Such universal opposition smacks of an unwillingness to abide by the laws and a lack of respect for rule of law.  It is the same attitude as jumping a red signal at traffic junction, as soon as we realise that there is no police constable monitoring the traffic.

Do you have a problem with the laws of your country? Do you think some of the laws need to be changed? By all means... go ahead and ensure such changes. For example, if you think Section 499 on Defamation or Section 298 on uttering, words, etc., with deliberate intent to wound the religious feelings of any person, in Indian Penal Code (IPC), are impinging upon your right to freedom of speech, then demand removal of, or change in, those Sections.  But, so long as these provisions are part of the law, it is not fair to demand their exclusion to activities over Internet.

If a person commit an offence under any of the Sections of IPC, by publishing an article in a publication, not only the writer but also the publisher and editor of that publication would be liable to be proceeded against, in a court of law.  Present laws, or even the fundamental principle of Right to Freedom of Speech, do not provide any immunity to the writer/editor/publisher in such proceedings. 

When that is the case with real world why such an article published in a social media or any other sites must get immunity?  It defies any logic to say that, because the medium of dissemination change, the offence must be treated any differently!

Same is the case with intellectual property rights.  If a patent or copyright is protected under the law, why should that protection be denied to rightful creators/owners, over the Internet? Merely because it is easy to download copy and disseminate contents over Internet, should we exempt it from the IPR laws of a country? I can't find a reason why it should be so; though if a country does not want to provide such protection to the creators of IP, then they may remove the laws relating thereto and suffer the consequences! No one claim a right to piracy, isn't it?


Here comes another self-serving argument from the advocates for absolute freedom of Internet-  that the Internet is a media that was designed not to have any control whatsoever and it is technically not feasible to have any censorship or editing of the content, like in the print media!  How convenient an argument! Police can’t catch me- so my act is not a crime.  Come to think of it, aren’t we using that argument in most spheres of life?

In my humble opinion, it is the duty of the state’s Executive to find suitable measures to ensure that its laws are abided to.  If there is no technology that permits avoidance of a crime, they just have to find one at the earliest!

Second argument is about the glorified self-regulation.  Scan through the Twitter or Facebook messages and you will see that for all the good social broadcasting that is happening, there is an equal amount of criminal content also being disseminated over these media.  Lot of people only use these media to abuse and defame their opponents.  Besides, Twitter itself clarified recently that the most number of messages removed till date fall into the category of disseminating child pornography.  Now, are you saying that we should ensure the freedom of expressions of paedophiles?   

Yet another argument is that the Internet is borderless and therefore, we cannot enforce the laws a particular country to the entire world.  Again, we must leave it to the service providers and State machineries to find ways to tackle that.  The least expected from us individuals is not to question when a service provider is introducing measures to make country specific adherence to laws, like Twitter is proposing to do.

Finally, the argument about unfairness to the service providers!  The proponents of this argument says that unlike editors and publishers of print and electronic media who get a chance to preview the content before its publication, the service providers and hosting sites do not get a chance to preview the user posted contents. Well, it is a fair argument.  If I have to submit all my tweets for pre-scrutiny by Twitter staff and wait for their clearance, then I would rather prefer not to tweet.

But our State is also not that unfair, like many would like to portray.  When they realised this limitation of the medium, they have taken adequate measures to protect the service providers from any liability for posting third party contents.  (For those who are interested in knowing the Indian law relating to these aspects may kindly refer to my detailed post titled “Internet and Freedom of Expression- Other Side of the Coin”). Section 79 of India’s Information Technology Act, 2000 provides adequate exemption to the intermediaries for such liabilities. 

However, this exemption or immunity from liability provided to the intermediaries is subject to certain conditions.  These are:

• Its function is limited to providing access to a communication system over which information is made available
• It does not initiate transmission, select the receivers, or select or modify the information
• It exercises due diligence and abides by any rules prescribed by authorities in this regard

Naturally, this exemption will not be available to an intermediary, if it has conspired or abetted or aided or induced, whether by threats or promise or otherwise, in the commission of the unlawful act.

 Further, exercise of due diligence would include that the intermediary, 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, takes necessary action to expeditiously remove or disable access to that material on that resource, without vitiating the evidence in any manner.

So, the culpability of a service provider is restricted to offences in which it had actively participated.  In other words, passive provision of a media would not make them culpable.  For example, if I publish an offensive tweet of the Twitter or an offensive blog on the Blogspot, they will not be liable for that tweet or blog.

However, that immunity will be lost, if they refuse to remove an offensive content on being actually known about the existence of such offensive content in their site. From that moment on they become an accomplice with full knowledge of the offensive content, if they refuse to remove it within reasonable time. You may note that on acquiring such knowledge, they can review the content and take appropriate response- either to refuse the request if they consider the content not in violation of applicable laws or to remove it if they consider it offensive. Once a decision is taken, they cannot claim the innocence of an unknowing party!

In my opinion, the Intermediaries are required to use their judgement on reported third party content, in the same manner as print media editors and publishers do.  If they find the matter violating any law of any jurisdiction, remove that content from that jurisdiction. If they find the request unreasonable and illegal, just refuse it and face any possible legal action.   Same is with the third party who published that offensive content.  If he is aggrieved against a removal, then he can approach respective agencies including courts to get the removal nullified.

After all that little price we pay for benefits of a civilised society is to submit our disputes to an arbitrator; usually the courts!  Let courts decide what content is illegal or offensive as per law of the land.  Let the virtual world and the people behind that world also submit to the majesty of law, like all of us do in the real world, while constantly striving to reform the laws to meet the need of the changing times.

Lets us all be responsible for what we broadcast to the world.  Let the myth of absolute freedom of Internet be destroyed; lest the very Internet gets destroyed sometime soon, due to the weight of its anarchy!