Updates

Freedom of Speech In Cyberspace

“Don’t promote negativity online and expect people to treat you with positivity in person”

-Germany Kent

INTRODUCTION[1]:

Data is like deep pockets, which has zero value, until and unless it has been employed. Data in layman term means ‘information’.  Information Technology (IT) address data storage, retrieval, and making decisions at large. IT generally stores, processes, use the data.  We’ve come to a situation where information technology overtakes the human being and the whole society. There are two major components of people understanding about the IT.

The two dimensions of people’s understanding

Hardware & Software                      Cyber Crimes

(People are aware of)              (People are unaware of)

The major reason for the origin of the internet was, to create a revolution in the computer world. As year’s passes, this great revolution has turned towards the world. The technology which was created had been misused at large, accumulated cyber crimes, with an increase in criminal activities in the world. With the emergence of the technology the misuse of the technology has also expanded to its optimum level the examples of it are:

Cyberstalking, harassing, defamation, fraud, pornography, etc.

ROLE OF HACKER:

Hacker is an expert in cyberspace, who uses all his knowledge to obtain unauthorized access to the computer. He breaks through the system but he has no ‘mens rea’ in order to damage the system. IT Act, which was enacted in 2000 doesn’t make hacking as a criminal offence, but looks into the factor of Mens Rea for conviction. Hacker has its kinds like White hat hacker, Black hat hacker, and Grey hat hacker. But they are different from Cracker, they use disruption to the network. Section 66 (b) of the Information Technology Act 2000, provides punishment of imprisonment for the term of 3 years and fine which may extend to two lakh rupees, or with both. Unauthorized access under Section 43 of the Information Technology Act 2000 is punishable regardless of the intention or purpose for which unauthorized access to the computer system was made. The owner needn’t prove the facto of loss, but the fact of it been used without his authorization. Unauthorized access under Section 43 of the Information Technology Act 2000 is punishable regardless of the intention or purpose for which unauthorized access to the computer system was made. The owner needn’t prove the facto of loss, but the fact of it been used without his authorization.

INDIAN CONSTITUTION PERSPECTIVE IN CYBERSPACE:

Article. 19 (1) (a) of the Indian Constitution deals with freedom of speech and expression.  Being a fundamental right it is been guaranteed to the citizens residing within Indian Territory. One can express their opinion and thoughts by virtue of Article. 19 (1) (a).  Even in Cyberworld, one can protect their freedom of speech and expression. One can express their ideas, opinion, in the internet world without any fear of government, provided it does not affect another person liberty and privacy at large. This right to speech and expression brings people all over the world to one common network to share their views and updates all around the world. But, this right has been misused in the current scenario.

In the case of Ranjeet D. Udeshi v. the State of Maharashtra, the Supreme Court admitted that Indian Penal Code doesn’t define obscenity though it provides punishment for publication of obscene matter. There’s very thin line existing between a material which could be called obscene and the one which is artistic.

There is no Data Protection Act in India, the only provisions which talk about data protection are Section 72 and Section 43 of the Information Technology Act, 2000. There must be a new Law to deal with the situation for a person to know that the Controller is processing his data concerning him and also that he must know the purpose for which it has been processed. It is a fundamental right of the Individual to retain private information concerning him provided under Article 21 of the Indian Constitution, which says: No person shall be deprived of his life or personal liberty except according to the procedure established by law. And due to the increasing trend of the Crime rate in the field separate legislation is required in this context for better protection of individuals.

Right to free speech as an invaluable fundamental right of human beings can be justified on several grounds. The liberty to express one’s self freely is important for a number of reasons106, which help to shape the development and application of the law on freedom of expression[2].

 Privacy and freedom issues in cybersecurity with reference to IT law takes on important new meaning in cyberspace. Privacy and freedom of expression are said to be universally known for an individual‘s fundamental right. But when we talk about these right in terms of cyberspace, meaning comes out to be very different. Although India has come up with IT Act, 2000 and the subsequent amendment to it in 2008 yet it is not able to cover the complete boundaries of cybercrimes, like a very crucial issue of the right to privacy.

The Constitution of India does not patently grant the fundamental right to privacy. However, a legal framework for the cyber world was adopted by India in the form of E-Commerce Act, 1998. On various occasions, even the Internet Service Providers (ISPs) have stepped into censoring web contents either compelled by the laws or, on their own accord.

Under Article 32 of the Constitution of India raises very important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The immediate cause for concern in these petitions is Section 66A of the Information Technology Act of 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009.[3]

An early case of Romesh Thappar v. State of Madras[4], this Court stated that freedom of speech lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India[5], a Constitution Bench of this Court said freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors[6], that the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.

The Court has laid down what “reasonable restrictions” means in several cases. In Chintaman Rao v. The State of Madhya Pradesh, this Court said:[7]

“The phrase “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality”.[8]

In the era limited to print media and cinematography; or even in case of publication through airwaves, the chances of abuse of freedom of expression were less due to inherent infrastructural and logistical constraints. In the case of said mediums, it was almost impossible for an individual to create and publish abusive content and make it available to trillions of people. Whereas, in the present internet age the said infrastructural and logistical constraints have disappeared as any individual using even a smart mobile phone or a portable computing device can create and publish abusive material on its own, without seeking the help of anyone else and make it available to trillions of people by just one click.”[9]

 As stated, all the above factors may make a distinction between the print and other media as opposed to the internet and the legislature may well, therefore, provide for separate offences so far as free speech over the internet is concerned. There is, therefore, an intelligible differentia having a rational relation to the object sought to be achieved.[10]

May 2014 saw the arrest of 5 students by the Bangalore Police Department for alleged circulation of anti-Modi messages on Whatsapp under Section 505 of Indian Penal Code and Section 66 A of the IT Act. So what did the offensive message really contain?  According to a Bangalore Mirror report, “The morphed picture showed the final rites of Modi being performed, attended by L K Advani, Rajnath Singh, Sushma Swaraj, Baba Ramdev, Maneka Gandhi, and Varun Gandhi. It had a caption: Na Jeet Paye Jhooton Ka Sardar — Ab Ki Baar Antim Sanskar (A false leader will never win, this time it’s final rites).” The arrest was made under the pretext of the message being wrong, alarming and prone to terror.[11]

The Madras High Court (HC) was ordered by the Supreme Court of India (SC), on 22 April, to pass an interim order on the ban of TikTok in the country. The Madras HC’s Madurai Bench is all set to hear the TikTok case today.

In Tolly v JS Fry and Sons Ltd, the claimant was an amateur golf player. The defendant was a chocolate manufacturing firm, who without the consent of the plaintiff had used it’s picture to advertise Fry’s chocolate. According to the claimant, his reputation was at stake because of the advertisement which characterized him of being guilty and regretful about his profession as an amateur golf player. The court later gave the verdict in favor of the plaintiff and awarded him damages. Hence, there is a need to amend laws and there should be stringent punishment provided.

INTERNATIONAL VIEW:

 Universal Declaration Over a century and a half later, the United Nations’ Universal Declaration of Human Rights (UDHR) recognized the right to free speech104. Similarly, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights have upheld the significance and importance of freedom of expression.[12]

UDHR provides freedom of expression in its Article 19, the International Covenant on Civil and Political Rights (Article 19), the American Convention of Human Rights (Article 13), the African Charter on Human and People’s Rights (Article 9), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10). Hence, adequate backing of the constitution should be provided when it comes to cyberspace.

CONCLUSION:

Cyberspace is developing worldwide so does cyber crimes, just because one has the freedom to speech and express, they should not be violated and abused. The privacy and the protection under the Indian constitution should not be misused. At the same time precautionary measures like encryption, having strong passwords, usage of firewalls, etc. must be used in order to protect the data. Hence certain amendments and more penal provisions are necessary in order to protect human rights, privacy in order to uphold the rule of law.

References:-

[1] B.C.A, LL.B (HONS), STUDENT, SCHOOL OF EXCELLENCE IN LAW, TNDALU, CHENNAI.

[2] Supreme Court of India has provided certain insights as to the significance of Freedom of expression and the purpose it serves in society in Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors. MANU/SC/0340/1984. The Court observed that The freedom of expression has four broad social purposes to serve; (i) it helps an individual to attain self-fulfillment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. 107 Barendt .E, Freedom of Speech, Oxford-Clarendon Press, London,1987

[3] Shreya Singhal vs U.O.I on 24 March, 2015

[4]  [1950] S.C.R. 594 at 602

[5] [1962] 3 S.C.R. 842 at 866

[6] [1973] 2 S.C.R. 757 at 829

[7]  [1950] S.C.R. 759

[8]  (at page 763)

[9] Casemine.com

[10] www.indiankanoon.org

[11]https://bangaloremirror.indiatimes.com/bangalore/crime/PM-designate-Narendra-Modi-Syed-Vaqas-WhatsApp-L-K-Advani-Rajnath-Singh-Sushma-Swaraj-Baba-Ramdev-Maneka-Gandhi-Varun-Gandhi/articleshow/35610511.cms?

[12] Art.19, UDHR