Freedom of speech in cyberspace

The discipline of law has constantly faced the challenge posed by special endeavors to the general rules of law. While at times, developments of the special endeavors have led to the development of specialized areas of law, it has also faced constant challenge from those who advocate that law should be general in its character and creating specialized fields leads to what may be called ‘multidisciplinary dilettantism’.^[1]

These days, the web is an intuitive media in which we called the internet or virtual media. This is media, where everybody or anybody can be conveying everything that needs to be conveyed by putting their own thoughts or different things. Where they will enlighten the audience members or perusers regarding their own thoughts or others, their own accounts or others, their very own societies or others, and it is including the current of themselves for mediating and to persuade the others to pursue their own ways or thoughts or even simply spreading a data.

Article 19 of the Indian Constitution

Article 19(2) of the Indian constitution enables the government to impose certain restrictions on free speech for issues –

• Security of the State,
• friendly relations with foreign States,
• public order,
• decency and morality,
• contempt of court,
• defamation,
• incitement to an offence, and
• sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly established law and not by executive action.^[2]

In 2013, the Supreme Court of India was faced with certain special challenges to the fundamental right to freedom of speech and expression posed by cyberspace in the case of Shreya Singhal v. Union of India^[3]One of the preliminary arguments that was made by the respondents in Shreya Singhal is that the restrictions on freedom of speech on Internet are not bound by Article 19(2), as it is a separate medium altogether. The Supreme Court did not adopt this argument. In order to reject this proposition, the court relied on Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal^[4]  and held that right to acquire and disseminate information forms part of freedom of speech and expression.

Test of Reasonableness and Cyberspace

Article 19 requires the determination of reasonableness. In the case of V.G. Row v. State of Madras^[5] laid down that the following factors will be relevant in determining “reasonableness”-

“The nature of the right purport to have been infringed, the objective of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the imbalance of the burden, the common conditions at the time, should all go into the legal decision.”

The test laid down in V.G. Row was also upheld in Papnasam Labour Union^[6] and in many subsequent cases. The basic idea which was considered was that greater restrictions can be imposed on cyberspace speech as opposed to other media. The virtues of cyberspace may become its enemies. Procedural safeguards are if not more, at least, as relevant as substantive standards with respect to free speech. By allowing lower procedural safeguards with respect to blocking of websites, the court has set a lower threshold for cyberspace speech, thus carving a niche for cyberspace in the broader free speech jurisprudence.^[7]

Explanation with three Categories

• “Edited Electronic Conferences”: The media ingredients of the electronic-conferences are list of discussion, news-group, and board of the bulletin. The news users are in listening mode in which they simply searching for the intrigue news that is vigorous to their requirements, it is consistent and not offensive. The editor is who have control of the content. For this situation in the event that the legislature is the one assuming liability on the editing point, at that point it is call “censorship”. In a particular case, the Egyptian government blocks or censorship all means of communication in the first week of demonstration to not spread the information out from Egypt.
• “Avoidance of offence”: Generally, the audience members or perusers would prefer not to hear inconsiderate things. If this occurred then these speech can be grouped as irritating speech. In a particular case, the Egyptian demonstrators were using banners and others ways to press President Hosni Mubarak to resign from his post.
• “Parent control over their children access”: This is to allow parents to close monitor their children access to offline and online material especially on gaining access to sexual material. In this case parents have moral responsibility to speak to the younger generation that the violence and destruction will not lead to the reform.

Government Right To Intervene

Administrations have right to interfere with the country regulation and law to diminish the negative impact to the others. However, it is sure that the governments have their own limitation with the geographically boundaries of the other nations law enforcement. And the cyberspace itself has no geographically boundary.

On January 28, 2011, President Barak Obama respond to the censorship of the government of the Egyptian. He stated to the media communication and he said that “free speech is Human Right”. Furthermore he specified that “the people of Egypt have rights that are universal. That comprises the right to peaceful assembly and association, the right to free speech, and the ability to determine their own destiny.”^[8]

The United States Jurisprudence: Cyberspace Specific Free Speech Protection

In many of the earlier cases, the Indian Supreme Court has often showed skepticism in applying the U.S. jurisprudence to the Indian free speech cases. Free speech comparativism has been rejected mainly for the reason that decisions on the First Amendment of the U.S. do not have any bearing on Indian framework, because while this amendment is absolute in terms and it contains no exception for the exercise of the right, the grounds of restrictions are expressly provided in Article 19(2).^[9]

In Reno v. ACLU,^[10] for the first time in the U.S., the interface between ‘First Amendment free speech right’, and ‘cyberspace’ came into question. The case assessed the constitutionality of two statutory provisions that criminalized indecent speech aimed at minors on the Internet.

The Court in both cases was driven by the Internet’s brilliant capabilities to insulate technology from government restraint. Thus, unlike earlier Court decisions that limited regulation of the media, like print, in order to protect free speech, the Court in the Internet cases uses free speech principles to protect the medium.

Justification for Greater Protection?

Another element that went missing in Shreya Singhal was analysis of “market space” approach with respect to cyberspace. The court relied on the cases, which adopted this approach in the U.S. as considered in Abrams v. United States,^[11]and Whitnet v. California^[12]

It is submitted that the market-place approach was adopted in the Indian jurisprudence in the case of Khushboo v. Kanniamal^[13]. At times, speech may be restricted because the market of speech may not be really as free. Due to excessive editorial gate-keeping involved in the traditional media of speech, including newspapers etc., the market needs to be regulated. For instance, if there is harm to someone’s reputation due to what is printed in a newspaper, it is important that there is greater regulation of such speech as the other person may not have access to equally powerful architecture of free speech.

However, the circumstances are not the same with respect to cyberspace. The market in cyberspace is more efficient in the sense that access to architecture of speech and expression is much greater and much more widespread than other media. Therefore, the medium of cyberspace gives even lesser of the justification for curbing freedom of expression.

Most of the offence-based harm can be mitigated due to access and participation that cyberspace provides. Cyberspace is more participative. Therefore, an offensive content affecting someone’s reputation may be easily tackled through generating counter-narratives on cyberspace than on other media. 

Conclusion

Free speech concerns in cyberspace are not merely a new drink in the old bottle. Cyberspace factors such as scale, manipulation, greater chilling effect, connectivity, role of new intermediaries etc. create sui generis concerns for the free speech jurisprudence. Therefore, free speech jurisprudence is not only to be applied to cyberspace, but also to be carefully modified. It may be for good or for bad, depending on the approach that the courts take in the application of Art. 19(1)(a) and Art.19(2) standards to the cyberspace questions. As the comparison of the Indian and the U.S. jurisprudence with respect to cyberspace free speech shows, the characteristics of Internet may provide justification for both, greater regulation or greater protection.^[14]

Further, free speech concerns of cyberspace are not merely based on content censorship, but also subtle architectural controls, which may, at times, substantially affect the speech flow. Finally, mere constitutional adjudication is not sufficient for sufficient protection of speech protection on cyberspace. The decisions made by legislatures, administrative agencies, technologists, entrepreneurs, and end-users may also affect the cyberspace culture of free speech. Though the technical designs and regulatory decisions may directly affect the free speech values, the role played by the judicial elaboration of constitutional precedents cannot be underplayed.

Frequently Asked Questions (FAQs)

1. In what ways (in practice) is Singapore less free than the United States?

In increasing order of severity, the average citizen is affected in four main ways: more censorship in the media, less freedom of the press, less freedom of speech and practically no freedom of assembly.^[15]

More censorship in the media – Movies, TV shows and books can be banned or censored for violent, sexual (especially homosexual), racial and religious content, purportedly to reflect the conservative nature of our society. Things will only get better in this category.

Less freedom of the press – All the major newspapers in Singapore are under the control of Singapore Press Holdings (SPH), a state-owned company led by people with close ties to the government. Compared to the American press, the Singaporean press is a lot more forgiving towards the government, and a lot less willing to do their own independent investigation into things that may make the Singapore government look bad. But in the last 10 years or so, SPH and the government have probably started getting really worried about the internet and online media. Sites like The Online Citizen (http://www.theonlinecitizen.com) or Yahoo News Singapore which are much more critical of the government are flourishing, and are good enough to make mainstream television and newspaper media seem irrelevant and frustratingly slow. International publications like The Economist and The Wall Street Journal are also unflinchingly critical of Singapore, and any citizen here will see these news articles pop up on Google News frequently.

Less freedom of speech – You won’t be able to very publicly say things that can be understood as detrimental to racial harmony, or as libelous towards the Singapore judiciary or the government. Freedom of speech is not seen as being without limits here, and is not a right guaranteed to every citizen. You can also be sure that if you’ve done something serious enough to be taken to court, you will almost certainly lose the case, since the judiciary has a similar temperament and value system to the government. But freedom of speech is really only curtailed when the impact of what is said is deemed to be large enough, so most people don’t feel too affected by this on a day-to-day basis.

Practically no freedom of assembly – There’s no way you’ll be allowed to take a bunch of placards and take to the streets, unless you’re at Speaker’s Corner at Hong Lim Park, right next to a rather conspicuous police post. Going on strike is also unthinkable. Even when the World Bank and the IMF were in town for a meeting, protests had to take place indoors and were tightly controlled, and locals were banned from such activities.

For the average citizen, censorship and lack of freedom of the press can both be easily circumvented and ignored, while the lack of freedom of speech and freedom of assembly really only hurts if you’re an activist, although things are very gradually becoming more akin to what is seen in the US. 

2. Why are there so many communist sympathizers on the internet now?

Communist sympathizers need to avoid confrontation with the facts of history and live in cyberspace where they try to control the dialogue in their same tired ways.

Communists on the internet can frame the questions and quibble about the alleged differences between socialism and communism. It has now been over 25 years since the worldwide fall of communism. Many folks did not live through the years of communism, the constant escape attempts, the secret police, the injustices, the West’s constant technological superiority, and all the other negative effects of communism.

On the internet, communists can exercise that freedom of speech they always denied their subject citizens when the communists were in power. They are completely unaware of this contradiction.

3. Do Americans believe “freedom of speech” allows the right to speak “hate”?

Many do, but their understanding of the law, the nature of rights, and the limits of speech is poor. There are many restrictions on speech, some related to hate and some not:

• You have zero right to free speech in a forum owned by someone else. They’re entitled to kick you out, delete what you’ve said, change it, anything.
• You may not defame someone else. In the US the definition of defamation varies from state to state. This is also called slander or libel.
• You cannot publish obscene material. This includes line drawings or descriptions of child pornography even when no sexual abuse actually took place.
• You may not claim military honors to which you are not entitled.
• You may not incite others to criminal acts or to riot.
• You may not participate in a criminal conspiracy even if your only action was speaking or writing.
• You may not reveal any classified information in writing or speech.
• You may not urge people to dodge the draft in wartime.
• You may not urge support for organizations that the government has designated as sponsors of terrorism, even if you disagree with that designation and give no money yourself.
• You may not make false or fraudulent claims in the course of business.
• Your right to advertise is limited. No cigarette advertisements on TV.
• You are required to reveal certain information about food, drugs, and chemical products that you sell. The government can force you to speak.
• You have no right to free speech in the military.
• You have no right to say anything you have contractually promised not to.
• You have no right of free speech in the workplace, except union organization, which is protected by law.
• Children have no right to free speech in school.
• You have no right to threaten anyone with violence.
• You have no right to speak any time you want to in a courtroom or other public proceeding.
• You have no right to sexually, racially, or otherwise harass co-workers.
• You may not induce someone to break a contract they have with a third party. This is called tortious interference.
• You have no right to shout “Fire!” in a crowded theater.

Most of these are just plain common sense. People who swear that they’re First Amendment absolutists seldom really have thought it through. We can’t have children disrupting classrooms and getting away with it on free speech grounds.^[16]

4. How do we stop cyberbullying worldwide?

There are two ways. The simple way is to get rid of cyberspace. This would require taking a big step backwards in the technological development of mankind.The other way, which is even more drastic, is to get rid of people.^[17]

We don’t really want to get rid of cyberbullying. We only think we do. We want to get rid of it when we hear sad stories in the news about people – especially children – who were hurt by cyberbullying. And we want to get rid of it when the cyberbullying is directed towards us.

The truth is that most people love engaging in cyberbullying. It’s our nature. We aren’t Heavenly angels that are created to do good things. We love being nasty when we feel it is legitimate. Look at the comments to just about any online article, especially articles about someone not totally popular. Donald Trump is the absolute best example. Look how many nasty comments there are to any article about him. In fact, the reporters love engaging in cyberbullying. It is almost impossible to find an article about Trump that isn’t nasty except on Fox. And he gets made fun of gleefully by our favorite celebrities.

Which one of us is willing to give up the privilege of saying and writing nasty stuff about people we don’t like? Are we willing to live in a world in which only nice things can be written about Donald Trump or about anyone else we don’t approve of?

Getting rid of cyberbullying would require getting rid of freedom of speech. Would we prefer to live in a place like Saddam Hussein’s Iraq, where one could get killed for saying or writing anything negative about him (and there are still plenty of places like that in the world).

Until every one of us is willing to give up the right to say and write negative comments about people, the world will never get rid of cyberbullying. 

5. What is the conviction for cyber defamation in India?

The Information Technology Act, 2000: In May 2000, at the height of the dot-com boom, India enacted the IT Act and became part of a select group of countries to have put in place cyber laws. In all these years, despite the growing crime rate in the cyber world, only less than 25 cases have been registered under the IT Act 2000 and no final verdict has been passed in any of these cases as they are now pending with various courts in the country.

Although the law came into operation on October 17, 2000, it still has an element of mystery around it. Not only from the perception of the common man, but also from the perception of lawyers, law enforcing agencies and even the judiciary.

The prime reason for this is the fact that the IT Act is a set of technical laws. Another major hurdle is the reluctance on the part of companies to report the instances of cyber crimes, as they don’t want to get negative publicity or worse get entangled in legal proceedings. A major hurdle in cracking down on the perpetrators of cybercrimes such as hacking is the fact that most of them are not in India. The IT Act does give extra-territorial jurisdiction to law enforcement agencies, but such powers are largely inefficient. This is because India does not have reciprocity and extradition treaties with a large number of countries.

What India needs to do in this backdrop, is to be a part of the international momentum against cyber crimes. The only international treaty on this subject is the Council of Europe’s Convention on Cyber Crime, formulated primarily by the European Union. By signing this treaty, member countries agree on a common platform for exchange of information relating to investigation, prosecution and the strategy against cyber crime, including exchange of cyber criminals. At the last count, there are 43 member countries, including the US and South Africa. India is not yet a part of this group and being a member would go a long way in addressing this issue of cross-border cyber terrorism.

The Indian IT Act also needs to evolve with the rapidly changing technology environment that breeds new forms of crimes and criminals. We are now beginning to see new categories and varieties of cyber crimes, which have not been addressed in the IT Act. This includes cyber stalking, cyber nuisance, cyber harassment, cyber defamation and the like. Though Section 67 of the Information Technology Act, 2000 provides for punishment to whoever transmits or publishes or causes to be published or transmitted, any material which is obscene in electronic form with imprisonment for a term which may extend to two years and with fine which may extend to twenty five thousand rupees on first convection and in the event of second may extend to five years and also with fine which may extend to fifty thousand rupees, it does not expressly talk of cyber defamation. The above provision chiefly aim at curbing the increasing number of child pornography cases and does not encompass other crimes which could have been expressly brought within its ambit such as cyber defamation.

IPC on Defamation: Chapter XXI of the IPC exclusively talks of defamation. Section 499 prescribes the offence:

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 to defame that person.

Explanation 2. – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Section 500 prescribes the punishment in such cases: Whoever defames another shall be punished with simple imprisonment for a term, which may extend to two years, or with fine, or with both.

Employer’s liability: A company can be held liable for the conduct of its employees. If an employee, during working hours, e-mails a defamatory remark about a competitor company to a colleague, the firm could be held liable for defamation even if the employee’s actions were not authorised or expressly prohibited.

For instance, in a dispute, which arose in the United Kingdom between the Western Provident Association (WPA) and Norwich Union, it was suggested that Norwich Union staff were spreading e-mail rumours amongst their sales force that WPA was more or less insolvent and under investigation by the Department of Trade and Industry. WPA sued Norwich Union, alleging that the latter was responsible for the communications made by its employees, even though the allegations were made without the instructions or knowledge of the management. The case was settled out of court but it is believed that Norwich Union paid approximately half a million pounds to WPA in settlement.

In fact, Asia’s first case of cyber defamation has been filed in India in the case of SMC Numatics Ltd. v. Jogesh Kwatra. Defamatory emails were allegedly sent to the top management of SMC Numatics by the defendant, who has since been restrained by the Delhi High Court from sending any form of communication to the plaintiff. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries.

An important test in determining whether a company can be held responsible for its employees’ actions is to decide whether the actions were to the benefit of the company. An employer would be held vicariously liable in case of an employee promoting his own interests.

The Australian judgment could impact freedom of speech of media organisations and expose publishers to legal actions all over the world. The judgment has raised complex global issues regarding internet publications, which could develop over time. The principle enunciated by the Australian Apex court is likely to stand in conflict with emerging jurisprudence relating to jurisdiction. Such an approach is likely to undermine the global nature of the internet, because it could make online publishers cautious and may deny access of their web sites to readers in countries where they fear litigation. This judgment will certainly have an impact on the Indian web publishing industry. It could open up the ground of misuse of law as Indian web publishers would be amenable to defamation laws not only in India but outside.^[18]

Further, the offence of defamation as defined in the IPC when extended to cyberspace may not achieve desired results. However, the Australian Judgment can be cited as a precedent and that will have persuasive value in India. Hence if defamatory material is downloaded by someone in India, that will be enough cause for action even if the servers of such site are located outside India.

Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje

 Reference

[1] Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79(1) New York University Law Review, 1 (2009).

[2]Eugene Volokh, Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex , ( February12, 2011) ,http://www2.law.ucla.edu/volokh/listener.htm ( Feb 12, 2011)

[3] Shreya Singhal v. Union of India, Writ Petition (Criminal), 167 of 2012 (Supreme Court)

[4] Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236

[5] V.G. Row v. State of Madras, AIR 1952 SC 196

[6] Papnasam Labour Union v. Madura Coats Ltd. (1995) 1 SCC 501

[7] Freedom of the Speech  ,http://www.answers.com/topic/freedom-of-speech ,(Feb 12, 2011)

[8] Remarks by the President Obama on the Situation in Egypt ,http://www.whitehouse.gov/the-press-office/2011/01/28/remarks-president-situation-egypt , (March 12, 2011)

[9] Durga Das Basu, Vol. 2, Commentary on the Constitution of India, 2401 (8th edn., 2007).

[10] Reno v. ACLU, 117 S. Ct. 2329 (1997).

[11] Abrams v. United States, 250 US 616 (1919).

[12] Whitney v. California, 71 L. Ed. 1095

[13] Khushboo v. Kanniamal, (2010) 5 SCC 600.

[14] Negative effect of the internet , http://www.helium.com/items/790966-negative-effects-of-the-internet , (Feb 12, 2011)

[15] Sam Kaplan, In what ways (in practice) is Singapore less free than the United States? , https://www.quora.com/In-what-ways-in-practice-is-Singapore-less-free-than-the-United-States , (last visited on Feb 14,2012)

[16] Earnest W. Adams, Do Americans believe “freedom of speech” allows the right to speak “hate”?, https://www.quora.com/Do-Americans-believe-freedom-of-speech-allows-the-right-to-speak-hate , (last visited on May,17,2015)

[17] Israel Kalman, How do we stop cyberbullying worldwide?, https://www.quora.com/How-do-we-stop-cyberbullying-worldwide , (last visited on Oct,5,2018)

[18] Prakash Prasad, What is the conviction for cyber defamation in India?, https://www.quora.com/What-is-the-conviction-for-cyber-defamation-in-India , (last visited on Aug 31,2016)