Abstract
This Research paper analysis the right to speech and expression in the digital age. It includes the dynamic and progressive nature of the country’s growth toward the digitization, initiative of the Digital India by the BJP government leading India to join the Digitally advanced nations. It also covers about the emergence of fundamental rights including the right to freedom of speech and expression in Article 19 (1) (a) of the Indian Constitution[1]. This paper deals with the benefits brought by Digitization such as social connectivity, and establishing new and online businesses, but, the risks and demerits also came along with the digital era including breach of privacy, bullying, hate speech, etc. It deals with the IT Rules 2021, its effect, and several restrictions and guidelines to the OTT platform as well as the social media platforms.
Keywords: freedom of speech and expression, digitization, digital era, bullying, privacy, businesses, hate speech, etc.
Introduction
If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington
In this growing era, where especially the young generation, in particular experiencing thriving technology, and with the flow of this, the fine wire between constructive criticism and hate speech is getting merged. At this point in time, the question arises that are we having the freedom to exercise our right to speech and expression in the genuine sense. The digitized world has brought countless benefits, however, with this it has brought problems as well for instance questioning accountability and detectability without encroaching on one’s privacy in the digital sea. Although via certain laws and regulations such questions are being answered by using artificial technology tools, to regulate the digital cyberspace. However, the progressive and constantly evolving nature of the internet and digital tools leads to questions remaining unanswered.
Research Methodology
In order to provide a thorough examination of the right to freedom of speech and expression in the digital age, this paper’s research is descriptive in character and is based on secondary sources. Newspapers, journals, magazines, and websites are examples of secondary sources of information for the study.
Review of Literature
Is the freedom of speech and expression curtailed in the digital age?
What is the impact of IT Rules 2021[2] on our right to freedom of speech and expression?
Freedom of expression is one of the six fundamental rights granted to Indian citizens under Part 3 of the Constitution. This is one of the most important aspects of the hierarchy of individual liberties under Articles 19 to 22 of the Indian Constitution[3]. Article 19(1)(a) mentions that every Indian citizen is having the right to exercise their freedom of speech and expression. However, this right is not absolute, it consists of restrictions under Article 19(2)[4], which for various reasons, such as national security, friendly relations with foreign countries, public order, decency and morality, and contempt, may be considered “reasonable.” It gives states the power to impose restrictions. The tribunal, defamation, abetting crime, honesty and sovereignty of India.
Article 19 (1) (a) of the Indian Constitution
India under the rule of the British was imperiled by several restrictions in regard to voice and expression. For instance, adding a new section by Britishers to the already prevailing hate speech act suppresses the right to raise any voice that is against the colonial rule which can lead to encouraging any freedom struggle. After the Independence, India referred to the American constitution’s Bill of Rights establishing the Fundamental Rights in the Part III of the Indian Constitution. As it enables individuals to actively engage in the social and political processes of the government, this right is regarded as the most fundamental component of a robust democracy.
Indian Constitution guarantees the freedom of speech and expression under article 19 (1) (a), but only to Indian nationals; as a result, foreigners are unable to assert their right to this freedom. This right is not absolute but encompasses certain reasonable restrictions which are enumerated in Article 19 (2). This right is only available to the citizens of India not to foreigners. This right has been the subject matter of many supreme court cases including Romesh Thapar v. State of Madras[5]– The Apex Court has ruled that press independence is an vital part of liberty of opinion and expression. This freedom of speech has also been extended to the press. The Supreme Court has ruled on the issue of audible and inaudible voices in numerous decisions. The question today is whether these rights and restrictions apply to cyberspace.
Kedar Nath v. State of Bihar[6]– According to the Supreme Court, governmental criticism that does not promote violence or violate morality and public order is not considered hate speech.
Maneka Gandhi v. Union of India[7]– The Supreme Court has determined that freedom of speech and expression is not restricted by national boundaries after considering whether Article 19(1)(a) of the Indian Constitution only applies to Indian soil.
Bijoe Emmanuel v. State of Kerala[8]– This incident is also known as the national anthem singing incident. Herein, three students were expelled from the school board for refusing to sing the national anthem.
But when the national anthem began to play, the kids respectfully got up from their seats. The Kerala High Court is debating the legality of the child’s deportation. The student’s expulsion was upheld, the court said, on the grounds that singing the national anthem constituted a student’s fundamental obligation. After the students again appealed, the Supreme Court found that they had not broken any laws related to the National Honour and Insult Prevention Act of 1971.
Also, there was no law enforcing their fundamental rights under Article 19(1)(a) of the Indian Constitution. Excluding children from school was also found to violate the right to silence under article 19(1)(a).
This right is the source that has given rise to many additional rights coming under the umbrella. These are retrieved by the Supreme Court of India in its various landmark judgments such as the Right to information, right to liberty of the press and a few more.
The Preamble of the Indian Constitution upholds the idea of democracy, and citizens are entitled to freedom of speech and expression, including freedom of thought.
Digital Era
In this Digital era, the Digital India initiative developed by the BJP government is a step forward to this dynamic and developing nature of the internet, where countries across the globe are developing themselves in the era of the internet, digitizing themselves.
The information gets spread at a fast rate in the digital era presenting various opinions, views, and creativity across the globe. The progressive growth of digital India has developed have brought immense benefits also, however, at the same time, it has led to productive criticism against the government, its policies, and the public campaigns particularly at the time of the elections. People enter into anti-national activities in several social media platforms such as Facebook, Instagram, Twitter, etc.
Shreya Singhal v. Union of India[9] case directly dealing with the right to speech and expression in the digitalized world, where section 66A of the IT Act 2000[10] was held unlawful and invalid. It was further added that the Internet is the nourishment for the growing digital or cyber web.
In the Anuradha Bhasin case[11], one of the Supreme Court’s defining decisions. It discusses whether the right to free speech and expression extends to the Internet as well and challenges the legality of shutting down the Internet in light of reasonable constraints. The court held that the right to information[12] is an integral part of the right to the freedom of speech and expression and as online expression is the fastest and main source of diffusion of information. The court added that the right guarantee under Article 19 (1) (a) is extended to the internet and therefore the complete internet shutdown will be having an undesirable effect on free speech and expression circulation.
Benefits of the Digital Era:
- Sharing of Ideas: the digital age has allowed people to boost their creativity level just through sharing of their ideas on social media platforms where the Instagram is the most trending platform, people showing their talents, establishing their businesses, and many more. It has brought the art to the next level. Graphic designing and photography is having the next level of technological advancements which was never seen before.
- New and Online Businesses: In the earlier generations, it was always expected to get a job and earn money by the way of doing the labor or getting the degree, however, now the society is entirely changed. People are more attracted to establish their businesses and the setup. Now a days, people are forming new businesses which don’t require to have the official headquarters.
- Flexible employment: The nature of work has altered as a result of digital technologies. Thanks to network advancements, more individuals now have a lot more chances as remote working becomes increasingly common.
- Learning opportunities: Machine intelligence is rising as a result of digital technologies. In other cases, the equipment may be run automatically, freeing up staff from monotonous tasks so they may engage in more interesting work. In other cases, more intelligent devices equal to better user experiences or greater safety requirements. Prices for products and services decline as technology develops and is utilised more often. Users may now complete various tasks directly on their own without the use of a mediator, such as booking a trip.
Risk from Digital Age:
- Data Security: With the help of digital technology, enormous volumes of data can be gathered and stockpiled. Private information about people or organisations may be included here. It could be difficult to keep this information secure. With just one breach, several private bits of information might find their way into the hands of thieves, terrorists, rivals, foreign adversaries, or other wicked organisations.
- Crime and terrorism: The internet is a conducive environment for evil forces to function because of its vast breadth, immense size, and potential for user anonymity. Examples of this include paedophiles grooming potential victims in chat rooms and other places while exchanging photos, videos, and other information; terrorists encouraging others on social media; drug dealers trading on the dark web; and authoritarian regimes attempting to sway elections in democracies.
- Digital Media manipulation: Digital media, including images, music, and video, are simple to manipulate, which makes media manipulation common. Nowadays, it’s not always simple to distinguish between actual and false things. Photoshop and other editing software may be used to change photographs. You may edit digital audio and video. The problems will only get worse as technology advances.
- Anonymity and fake personas: Modern technology gives individuals several options for hiding their identities. According to studies, people are considerably more inclined to act in an antisocial manner if they don’t anticipate getting anything in return. With the growth of the internet, bullying, trolling, stalking, threatening, and abusive behaviour have all greatly grown. False identities are used by people to trick and trick others. Pedophiles use false identities in order to approach and befriend kids.
- Overreliance on Gadgets: Addiction to computers, smartphones, and other digital gadgets is very common. Many people save all of their personal data on their mobile devices, including contact information, pictures, texts, and other files. It may be disastrous to lose it, damage the equipment, or have power interruptions. When it comes to direction, GPS gadgets have taken the role of fundamental life skills like navigating city streets.
IT Rules 2021
The release of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[13] caused a public backlash and a lot of controversies because the majority of the population believed these rules to be unconstitutional for a number of reasons, the main ones being violations of the right to freedom of speech and expression. is. With the help of these rules, the government has included OTT (over-the-top) platforms, which show films and audiovisual programmes created by online content providers as well as platforms that show news and current affairs information derived from them, within its purview.
In a press release, the government specifically noted that these rules in no way limit an individual’s freedom of speech or opinion, but criticism of the government is necessary to keep freedom of expression as it is. Recognizing and respecting its importance, including Given that these rules are the essence of democracy, the government’s true motives are questionable. For example, in certain emergencies, government orders require intermediary platforms such as Instagram, Twitter, Facebook, etc. to remove certain users content without warning or a fair trial or defense.
No reason is given for the government to issue such an order, nor are appropriate restrictions clearly defined on what content is allowed on these platforms. The free speech of users of these platforms is subject to the whims of the government as a result of this uncertainty. Speech that the government perceives as even somewhat critical of users may be immediately labelled as “hate speech” or “fake news.”
In a nation where there is a massive population crossing 100 crores, the concept of Press freedom, especially when it comes to criticizing the government, is essential to prevent totalitarianism. Under the premise of preserving the sentiments and traditions of the Indus people, the rule aims to “regulate” their freedom. But putting such nebulous constraints on such a large category looks more like a liberal control measure that would inhibit free speech and the right to free speech. These OTT platforms and intermediaries must present certain topics in order to increase public awareness of certain facts and societal ills that can only be stopped by widespread adoption.
Before the law was passed, the actual number of complaints received by the government was only 171 complaints and 80 counter-arguments. This is completely disproportionate to the country’s population. The government has therefore failed to exercise due diligence and consultation with the public to reach a just agreement on this issue. This is a hasty move by the government, it is extremely dangerous because it does not give the people’s thought and public opinion the importance it deserves, and it interferes with the core of our nation’s constitutional democracy.
The Code of Ethics set out in Part III establishes additional penalties and obligations for publishers of content on the Internet. The grounds on which such content can be declared unethical are inherently vague, have a chilling effect on freedom of expression and expression, and limit the creativity and artistic voice of intermediate platform users and publishers. may weaken.
Under IT Rules 2021, the platform followed its own mechanisms and timelines for resolving user complaints. The IT regulations harmonized this by mandating that all social media platforms have a complaints officer, acknowledge receipt of complaints within her 24 hours, and act within 15 days. However, the performance of current grievance resolution mechanisms has not been optimal. First, as evidenced by transparency reports from small businesses such as Facebook and Twitter, there is no common understanding of what constitutes complaint resolution. For example, Facebook records only mention the number of reports where the “right tools” were provided. These “appropriate tools” could be an automated reply sent to the complainant pointing to the tools available on the Platform.
The government established a Grievance Appellate Committee (GAC). The Commission will consist of a council of three members, one of whom will be a government official (holding a post ex officio) and the other two members will be independent representatives. The user may file a complaint within 30 days against the order of the Complaints Officer. Importantly, Grievance Appellate Committee must implement user-friendly online dispute resolution mechanisms.
Conclusion
There is no doubt that society is flooded with fake news, especially through WhatsApp redirects and digital media such as defaced videos and images, requiring an urgent crackdown by the authorities. However, the method that seems to do the same thing may not be the best possible approach. Governments must exercise their powers carefully to avoid public criticism of their arbitrary actions.
The Court held in the Romesh Thapar case that Article 19(1)(a) applies to the news media’s dissemination of ideas. He may see the digital media age in two different ways, just like any other circumstance. You can take it as a blessing, or you can take it as a blessing. For example, the central government’s recent ban on Chinese filings on the grounds that it “undermines India’s sovereignty and integrity, India’s defense, national security and public order” has been viewed favorably. Yes, some people claim so. The ban, which affects several social networking applications with sizable user bases in India, is about a breach of the right to freedom of speech.. Therefore, while governments control their power, we must use the digital age only for positive ends and not the freedoms offered at the click of a button. Since there are no data protection laws in our country, the legislative, executive, and judicial branches have passed and enforced laws that make the digital world a reasonably secure space for the community, while at the same time protecting public opinion and guaranteeing freedom of expression. Taking action to do so is essential. It will not be affected in any way.
The first step is to actively solicit public opinion in areas where they feel comfortable being the primary users of their voices on digital platforms (the digital age facilitates this easily). Freedom of Speech and Expression Regulations will be curtailed to allow regulators to meet demands along the way, while imposing truly sensible restrictions to protect public law and order.
Submitted by:
Name: Pooja Yadav
Year and semester: 5th semester, 3rd Year
Course: B.A., LLB(H)
Amity University, Uttar Pradesh
Amity Law School, Noida
[1] INDIA CONST. art 19 (1) (a)
[2] IT Act 2000, Section 87, No. 21, Act of Parliament, 2000 (India)
[3] INDIA CONST. art 19-22
[4] INDIA CONST art 19 (2)
[5] Romesh Thappar v. State of Madras AIR 1950 SC 124, SCR 594
[6] Kedar Nath v. State of Bihar (1962) AIR 955, SCR Supl. (2) 769
[7] Maneka Gandhi v. Union of India (1978) AIR 597, SCR (2) 621
[8] Bijoe Emmanuel v. State of Kerala (1987) AIR 748, 1986 SCR (3) 518
[9] Shreya Singhal v. Union Of India (2015) AIR 2015 SC 1523
[10] IT ACT 2000 Section 66A, No. 21, Act of Parliament, 2000 (India)
[11] Anuradha Bhasin v. Union of India (2020), 3 SCC 637
[12] Right to Information Act, 2005, No. 22, Act of Parliament, 2005 (India)
[13] IT Act, 2000, Section 87, No. 21, Act of Parliament, 2000 (India)