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FREEDOM OF SPEECH AND EXPRESSION & SOCIAL MEDIA

R. Charu Latha


“Freedom of speech and expression” has been recognised internationally as a basic right that has to be guaranteed to every citizen under the Universal Declaration of Human Rights 1948 (UDHR in Article 19) and the International Covenant on Civil and Political Rights 1966 (ICCPR in Article 19(2)). The Constitution of India has guaranteed this right of Freedom of Speech and Expression in Article 19(1)(a). The object of this right is to provide every person the freedom to express themselves freely through any media and frontier, without outside interference such as censorship, fear of reprisal,etc.


The internet and social media have become an integral part of one’s day-to-day activities through which individuals can exercise their freedom of speech and expression. Social Media can be defined as, “any web or mobile-based platform that enables an individual or agency to communicate interactively and exchange user-generated content.” The term social media includes social networking, blogs, vlogs, social bookmarking and social news.


Internet as a basic human right

The need and the importance of the internet has been emphasised in the UN Special Rapporteur, wherein it was stated that, “internet access is a human right.” Stress was also made on the point that the States should ensure the maintenance of internet access at all times, even during times of political unrest. The States were also asked to adopt policies to make the internet widely available, accessible and affordable to all.


This being the scenario, it could be observed in Jammu & Kashmir that the internet services were cut off (total ban on 4G services) last year after the provisions of Article 370 was struck down and still continues to be suspended in all the districts except Ganderbal district of Kashmir and the Udhampur district of Jammu. The Supreme Court in Anuradha Bhasin v. Union of India ruled that, “an undefined restriction of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality.”


On raising the question of “whether the government’s action of prohibiting internet access is valid ?”, the Court highlighted that it had to consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown. The procedural mechanism has two components firstly, there is a contractual component between the Internet Service Providers & the Government and secondly, there are the statutory components as mentioned under the Information Technology Act, 2000, the Code of Criminal Procedure, 1973, and the Telegraph Act, 1885.


The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and it allowed the restriction of the internet contingent on certain safeguards. In addition to this, Section 5(2) of the Telegraph Act permitted suspension orders only in case of a public emergency or for the safety of the public. However, the suspension rules did not explicitly mention the maximum duration of a suspension order.


The Hon’ble Apex Court has stated in this case that, “the right to the internet is not a fundamental right when it comes to certain situations and circumstances. The State does have the power to impose such restrictions which may be necessary to keep the sovereignty, integrity and national security of the State intact.”


Censoring Social Media


The term “censorship” denotes the suppression of speech, public communication, or other information, on the basis that such material is considered objectionable, harmful, sensitive, or inconvenient. This topic brings in the huge debate of whether there needs to be regulation of the content available on social media.


Why should Internet Censorship be allowed?


The Internet, being an open and comprehensive source of information, the serious question of reliability and authenticity of the data available arises. When it is a hard task to charge a person for the crimes committed by him in the real world, it is an even harder task to charge a person for crimes committed on the internet. Thus, illegal activities and undue information are still rampant on the internet and it becomes necessary to undertake internet censorship for internet regulation. The censorship of the internet can cleanse the internet information and protect people to some extent.


The positive impact of censorship could be summarised as follows :

  • Since it is not possible for parents to monitor the web pages that children browse at all times, the censorship of the internet can help parents to filter unwanted websites for children, thus protecting them from misguidance and negative influence of the internet.

It helps in filtering inappropriate information online (child pornography, sexual violence, detailed instructions in crime or drug abuse).

  • Censorship of the internet can protect women to some degree such as, the blockage of websites that advocate sexual abuse of women, international sex trade.

  • Internet banking frauds have become a common peril nowadays. . With censorship, a great deal of fraudulent information on the internet can be filtered, thus enhancing the supervision and control of internet banking. This could lead to the prevention of financial frauds, phishing, identity thefts, credit card thefts etc.

  • Internet or Cyber bullying, which is a serious threat in recent times can be prevented through censorship. It is disheartening to know that there are some websites that abet suicide, communicate suicide knowledge and provide suicide methods and in this juncture, such websites can be blocked with the help of the censorship.

However, the contrary view has also been taken for the following reasons :

  • The most important argument against the censorship of the internet is that it is against the freedom of speech and that it violates human rights. The internet is an important communicative tool which provides a platform for people from all around the world to engage in free speech. It should be a place where people can express their views and positions regardless of society’s acceptance. People’s rights to free speech, rights of communication and the right to know are violated in the event of exercising censorship. This breaches the spirit of democracy and becomes detrimental to websites which express particular thoughts and views. Ultimately it becomes an obstacle to the development of the internet.

  • The government may abuse the power of censorship to exclude speeches and information opposed to the authority. The government may manipulate the rights of censorship to hide information which is disadvantageous to its policies. The government that has rights of internet censorship may silence anyone who doubts the government.

  • The censorship of the internet, limits the development of on-line service trade. The internet is a global market. With the development of the internet, electronic commerce based on the internet, replaces the management frame of standard commerce in a great measure. Moreover, electronic commerce has mostly covered other forms of transnational trade and with the development of the internet market, great contributions are made towards the whole economy. The censorship of the internet implemented by different nations is always found to be against the rules of the World Trade Organisation (WTO).

Legislations governing the content available on Social Media in India:


Various legislations have been enacted to govern the information that is available on the internet :

The Information Technology Act, 2000 :

  1. Sections 65, 66, 66A, 66C, 66D, 66E, 66F, 67, 67A & 67B contain punishments for computer related offences which can also be committed through social media.

  2. Section 69 : 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, the security of the State, friendly relations with foreign states, or public order.

  3. Section 69A : Power to issue directions for blocking for public access of any information through any computer resource.

It is also pertinent to note that rules have been made in this regard, for the effective implementation of the provisions contained in this Act.





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