Freedom of Speech and Internet

Freedom of Speech and Internet Background and context The right to freedom of speech expression and to hold opinions without interference is one of the fundamental rights guaranteed by most of the constitutions of the world including India and America. Presence of free, uncensored and unhindered Internet and press are essential to ensure freedom of speech and expression. “Unlike any other medium the Internet facilitated the ability of individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders.

By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an ‘enabler’ of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole . ”[1] The right to access theInternet might appear to be less significant in comparison to other basic human rights, such as the right to life and equality before the law. The Universal Declaration of Human Rights also includes the right to education and the right to work, which largely depend on Internet access. Estonia, Greece, France and Finland have recognizedInternetaccess as a basic human right in accordance with the United Nations recommendation. It is in the above context and background; my paper aims to draw out the most important questions with regard to Internet regulation and its impact on the freedom of speech.

Do governments have any right to control and regulate the availability and the content of internet ? What we can do to address the downside of the Internet? Present Global Status The Internet has become so much a part of our lives that it is very difficult to imagine a life without it. We use internet for communication, learning, trade and commerce, accessing news, entertainment, gaming, socializing and for many other information purposes.

It is a cheap global platform for exchanging views , opinions and dissemination of information in real time . Internet‘s main power comes from the fact that it can be used for all kind of media – text, audio and video. Unrestricted internet is breaking the barriers among people and making people closer to each other. “The Internet has changed the way we communicate, work and play, It has affected the way we live and earn , participate and protest .”[2] The Internet’s main services include: the world wide web , e-mail , discussion groups , newsgroups and mailing lists , social website like Facebook, Googleplus, Twitter, YouTube ,Skype and cheap or free direct on-line communication .

Traditional media such as newspapers and radio stations have also gone ‘online’, and made Internet more influential. Each of these services can be used in different ways to distribute and access legal as well as illegal and harmful material giving rise to different legal and policing implications. The power of easy , cheap and global reach of internet has made it a good medium for carrying out illegal and undesirable activities .This illegal and harmful useof internet has made it controversial and given rise to many legal, technical and structural problems. Activities like gaining personal information by way of deception, spreading of defamatory or illegal material, providing unsuitable material to young children, violations of copyright laws, stealing confidential details on computer, the interception of credit card details, fraudulentwebsitesand the spreading ofviruseshave become very common. Drug traffickers are also increasingly taking advantage of the Internet to sell their products through encrypted e-mail Hackers from Pakistan and China have penetrated our computer systems of CBI , PMO ,NSG, and even the computers of army officers.

Internet as a medium of communication is certainly at a risk of losing its credibility. “With the rise of the Internet the opportunities to express one has grown exponentially. But so have the challenges to freedom of expression.”[3] Many countries are censoring the Internet in order to prevent and eliminate illegal activities described above. Some governments also censor the Internet to make sure people cannot access anti-establishment views.

Saudi Arabia, North Korea, China and Iran are among the biggest offenders in blocking their citizens’ access to the Internet. “Global Internet freedom has been in decline for the past three years.”[4] This isn’t just the case in nations under authoritarian governments, either. America’s rating worsened by five points this year, to 17 on a scale of zero to 100, with zero being completely free.”[5] China has people dedicated to monitoring content. North Korea regulates Internet very heavily as the domestic Internet users are served by a sole provider with limited access to the global Internet. China claims that it censors only websites that encourage violence or terrorism.

But human rights organizations have reported that the China actively engages in censorship and repressive activities. Although guaranteed by the First Amendment to the Constitution, attempts are being made in America also to restrict exercise the freedom of speech through Internet.

Maximum numbers of requests to block content by Google are being received from America only. Congress has been debating many bills to monitor and filter internet content for stopping piracy and preventing abuse of intellectual property rights. “The main intention behind each of these bills may be good — to protect against online piracy and cyber attacks — but they all give government far too much control over what can and cannot be said online, opening the door to greater restrictions. Censorship is not the way to fight piracy or protect against threats to security or privacy.” [6] .

On the other hand, most of the Americans want Internet to remain uncensored and free. President Obama has in favor of a free and open Internet. Upheld the principle of net neutrality by classifying the Internet as a public utility. This would prevent Internet service providers from blocking access to websites, slowing down content or providing paid fast lanes for Internet service.[7] Internet censorship in India India will have 302 million Internet users by December 2014 and will overtake the United States to become the second largest user country only behind China.[8] Presently, access to Internet is concentrated in urban areas but is gradually spreading to rural India .In India, the Information Technology (IT) Act, 2000 provides a legal framework to regulate Internet use. The amended Act criminalizes the publishing of obscene information online and grants police powers to search any premises without a warrant and arrest individuals if found violating the provisions of this Act.

The Act requires search engines and social-networking sites to remove content within 36 hours if an individual complains that it is offensive. A lot of debate and discussion is taking place regarding the extent and limits of freedom of expression online. Removing content that is obscene or otherwise objectionable, or that endangers public order or national security has become very common.”India engages in “selective” Internet filtering in the political, conflict/security, and social areas. However, India’s selective censorship of blogs and other content, often under the guise of security, have also been met with significant opposition.

The government has also been criticized for a poor understanding of the technical feasibility of censorship and for haphazardly choosing which Web sites to block.”[9] “Since the Mumbai bombings of 2008, the Indian authorities have stepped up Internet surveillance and pressure on technical service providers, while publicly rejecting accusations of censorship. The national security policy of the world’s biggest democracy is undermining freedom of expression and the protection of Internet users’ personal data.”[10] Amendments made to the Information Technology Act (ITA) in 2008 expanded the government’s censorship and monitoring capabilities. Many Internet users have faced prosecution for online postings. The companies hosting the web content are now obliged by law to hand over user information to the authorities. Section 66A of the Act, prohibits the sending of offensive messages ‘causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.’ During the last five-six years the government has been imposing more and more restrictions on the use and the provision of internet services.

In 2009, the Supreme Court ruled that bloggers and moderators can face libel suits and even criminal prosecution for comments posted on their websites. Internet companies have also faced several civil lawsuits over content deemed religiously offensive or defamatory.

These cases have increased fears among IT firms that they are vulnerable to frivolous legal action and could be held liable for not removing content posted by users. Indian Telegraph Act in has also been amended to allow interception of messages on grounds other than national security. Prior judicial approval for communications interception is not required. Governments have the power to issue directives on interception, monitoring, and decryption.

All licensed ISPs are obliged by law to sign an agreement that allows Indian government authorities to access user data. In the light ofa series of arrestsmade under Section 66A of the Information Technology Act, 2000, a writ petition was filed seeking to strike down Section 66A as unconstitutional. It was contended that it violates the Freedom of Speech guaranteed under Article 19(1)(a) of the Constitution , does not meet the test of ‘reasonableness’ laid down under Article 19(2) and is violative of Articles 14 (Right to Equality) and Art 21 of the Constitution . [11] The Supreme Court directed issuing and compliance of some procedural safeguards against arrest till the final outcome of the case. A Central Advisory was therefore issued by the government suggesting that arrests ought not be made in a case registered under S.

66-A of IT Act, 2000 unless such arrests are approved by a senior police officer . Many more petitions were filed challenging Sec 66A of IT Act by Mouthshut.com[12], Dilipkumar Tulsidas Shah [13], Common Cause [14], Rajeev Chandrashekhar [15], and People’s Union for Civil Liberties [16] . Several substantial questions of law have been raised in these petitions having far-reaching implications on Indian technology law and the freedom of speech .The main arguments raised by the petitioners in these petitions is that the restrictions on free speech specified under the IT Act exceed those specified in Article 19(2) of the Indian Constitution and the Intermediaries Guidelines Rules contain ambiguous provisions. The Supreme Court has bunched together all these petitions and a decision is awaited.

In present-day India, the future of Internet freedom appears bleak.[17] From the deliberate interruptions of mobile and Internet services to limit unrest during rioting in the Northeast to picking up individuals—a professor in West Bengal, a cartoonist in Mumbai—the state’s iron fist is everywhere.[18] The government had also ordered Google and Facebook to block many specific items said to contain objectionable religious comments and pictures. Internet access was restricted in Jammu and Kashmir when Mohammed Afzal Guru was executed. A Central Monitoring System has been set up to monitor phone calls, text messages, emails, social media conversations and online searches in real time. On November 11 , 2014 the government has asked the internet service companies to block pornography sites and upgrade their systems to ensure this .[19] Both the authoritarian and democratic governments are curtailing freedom on the Net by “newer laws, regulations and directives to restrict online speech”. [20] In India the web content filtering requests are coming from government authorities as well as fom private individuals through court cases .

Even journalists like Burkha Dutt of NDTV are doing things which undermine the right of freedom of expression. A blogger was forced to remove the critical content accusing her of engaging in sensationalism and irresponsibly airing information about the movements of security forces when Dutt and NDTV threatened to seek punitive measures against the blogger through the courts.

The Internet operates on an international basis but our laws operate on a territorial basis. Many of the legal issues surrounding the Internet are global in nature. Material on the Internet is held worldwide but can be accessed worldwide. Very little web material is held locally.

Therefore India is actively raising the matters of Internet governance at UN level. Conclusion The Internet has undoubtedly posed new challenges for us. Privacy, the “Internet of Things,” and net neutrality are challenging governments around the world and international organizations .The new possibilities for free speech provided by the Internet have been used for many objectionable and illegal activities. Before attacking Internet censorship, one must understand the limitations of freedom of speech.Freedom of speech cannot be made an absolute right. .

Some amount of regulation cannot be considered as an infringement upon people’s rights as the internet does have undesirable content not fit for public viewing due to many reasons. The government isn’t being unreasonable by censoring the internet as it is merely doing its duty by protecting its people from potential danger. Law makers have a duty to pass laws and develop systems to address the issue of cybercrimes. Similarly our courts have a duty to protect our right to freedom of speech and balance the conflicting public and private rights and interests.

The restrictions imposed must be reasonable and in public interest in all cases and not for political or other gains .We must make it sure that in our efforts to make the Internet safer, we are not eroding the freedom of speech guaranteed by the constitution.  

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[1] F La Rue,Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report to the Human Rights Council, 17thsession, UN Doc A/HRC/17/27 (2011), p 19. [2] Prof. Wolfgang Benedek and Dr Matthias C. Kettemann , From the extracts available online of Freedom of expression and the Internet (2014), ISBN 978-92-871-7702-5 [3] Prof.

Wolfgang Benedek and Dr Matthias C. Kettemann , From the extracts available online of Freedom of expression and the Internet (2014), ISBN 978-92-871-7702-5 [4] Report released by the independent watchdog Freedom House, “Freedom on the Net 2013” [5] Keeping speech free on the Internet , Gary Shapiro- – The Washington Times, Sunday, October 20, 2013 [6] Keeping speech free on the Internet , Gary Shapiro- – The Washington Times, Sunday, October 20, 2013 [7] https://www.whitehouse.gov/net-neutrality [8] Hindustan Times , Nov 20 , 2014 [9] “ONI Country Profile: India”,Access Contested, Ronald J.

Deibert, John G. Palfrey, Rafal Rohozinski and Jonathan Zittrain (Eds), OpenNet Initiative, MIT Press, November 2011, pp. 299-308 [10] Internet Enemies, Reporters Without Borders (Paris), 12 March 2012 [11] Shreya Singhal v. Union of India [W.P.(Crl).No.

167 of 2012] [12] MouthShut.com (India) Pvt. Ltd. v. UoI & [W.P.(C).No. 217 of 2013] [13] Dilipkumar Tulsidas Shah v.

UoI [W.P.(C).No. 97 of 2013] [14] Common Cause vs. Union of India [W.P.(C) No. 21 of 2013] [15] Rajeev Chandrashekhar v.

Union of India [W.P.(C) No. 23 of 2013] [16] PUCL v. Union of India [W.P.(Crl) No. 199 of 2013] [17] Geoffrey King/CPJ Internet Advocacy Coordinator , Committee to Protect Journalists , January 13, 2014 https://cpj.org/x/583a [18] India’s declining Internet freedom- Any blow to the Internet’s free functioning is a blow to individual freedom. LiveMint , OCT 22, 2013.

[19] www.economictimes.com , Nov 11 , 2014 [20] Freedom House report on Internet , 2013

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