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FREEDOM OF SPEECH AND EXPRESSION IN SOCIAL MEDIA

Author: Rohit, II year of B.A., LL.B.(Hons.) from Institute of Law, Kurukshetra University, Kurukshetra



"Don't use social media to impress people; use it to impact people."

- Dave Willis, Author and Speaker[1]


Social Media is a medium to interact and stay connected to the people via means of technological advancement. It helps people to make their voice reach to their leaders and unites society together like never before. It is made up of two words- ‘Social’ which refers to ‘Society and its organisations’ while media refers to the ‘communication through publishing, broadcasting and the internet’.


In Today’s world of technological and scientific development, Social Media emerges as a medium which is used by people as a tool to freedom of speech and expression to prompt their ideas, thoughts and beliefs. Especially in a heavily populous country like India where there are about 376.1 million social network users in 2020 which will go up to 447.9 million users by 2023[2], Social Media is recognised as the fourth pillar of modern democracy. But it has its own limitations, side by side with all these benefits, that have surfaced in the last decade of the Internet data revolution.


According to Article 19(1)(a) of the Indian Constitution, all citizens shall have the right to freedom of speech and expression, with restrictions as mentioned in Article 19(2) in regard to any danger to the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence[3]. There are special legislations which also provide restrictions on the freedom of speech and expression in social media like the Information Technology (IT) Act, 2000. But there is a specific section in the IT Act which has been quite in controversy and has faced a lot of criticism over its use which is: Section 66A. In the IT Act, Section 66A says ,“ Punishment for sending offensive messages through communication service, etc. - any person who sends, by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.” [4]


In Shreya Singhal vs. Union of India, Two girls were arrested over their Facebook post challenging the city's shutdown for the funeral of Shiv Sena patriarch Bal Thackeray, with the statement also leading to an attack by Sena activists on the clinic of an uncle of one of them. In a glorious recognition of the value of free speech and expression, the Supreme Court came to the fore, quashing, as unconstitutional, Section 66A of the Information Technology Act, 2000 (IT Act)[5]. But still after declaring the section as unconstitutional, several arrests have been made for the most innocuous distribution of web material by various state police, of different citizens under the same section. Like in March 2017,an 18 year old fromMuzaffarnagar, Uttar Pradesh, one Zakir Ali Tyagi was booked and arrested for posting a statement on Uttar Pradesh Chief Minister Yogi Adityanath under Section 66A of the IT Act [6].


The same section, Section 66A was also seen in use in Ambikesh Mahapatra &Another v/s The State of West Bengal & Others, where a Jadavpur University professor in April 2012, was victimised by a group of Trinamool Congress activist and was later sent behind bars for questioning some of Banerjee's political decisions and circulating anti-Mamata Banerjee content over the internet using e-mail [7]. In the Judgement of the Calcutta High Court on March 10, 2015, the court ordered then Mamata Banerjee government to give Prof Ambikesh Mahapatra and his friend Subrata Sengupta, who were arrested in 2012, be awarded the State Human Rights Commission declared compensation and an extra Rs.25000 for legal expenses [8].


In this unprecedented time of COVID-19, there have been many controversies that took place over social media in India whether it is a group of school children been criticised for the leaked screenshots of their chat in the BoisLockerRoom group[9]or an alleged suicide by a class 12 student, Manav Singh, who was been harassed over social media and accused by a minor girl for sexual assault and was even alleged of having links with BoisLockerRoom which the boy’s family later denied[10]. When a Mumbai based stand-up comedian, Agrima Joshua’s old video surfaced, she faced a huge backlash by the public on cracking a satirical joke over the statue of Chhatrapati Shivaji which is planned to be built in the Arabian Sea. Later, she apologised for it but the comedian was sexually harassed over different social media networks[11] . Shubham Mishra, a youtuber in his video, was accused of badly and sexually abusing the comedian. A FIR was lodged immediately after the National Commission for Women (NCW) sought action for hurling out rape threats and abuses to the comedian[12]. He has been charged under section 67 of IT Act,2000 and section 294,504,506,509 of Indian Penal Code[13]. The case is still in the court.


But among all of those controversies and problems that arose during the time of COVID-19, the contempt of court case against Prashant Bhushan gained a huge limelight. Bhushan, a human right activist and senior advocate of the Supreme Court, was accused for Contempt to Court case which was taken suo motu by the court, after a complaint filed by Advocate Mahek Maheshwari. The bench of the Supreme Court headed by Hon’ble Mr. Justice Arun Mishra alongside Hon’ble Mr. Justice Krishna Murari and Hon’ble Mr. Justice B.R. Gavai,In Re Prashant Bhushan & Anr. Case, the contemnor was declared guilty on August14, 2020[14]. On 20 August, the contemnor was given time to reconsider his statement and was asked to submit an unconditional apology till 24 August[15]. On 24 August, Bhushan refused to apologize to the court and regarded his decision as his responsibility to the future[16][17]. On 25 August, the Attorney General KK Venugopal urged the Supreme Court to let Bhushan off from the punishment and the court reserved the judgment on his sentencing. On 31 August, the court ordered the contender to pay a token fine of Re.1 till September 15, in case of default a 3-month jail term and 3 years of debarment from practice at the Supreme Court[18]. Prashant Bhushan paid the fine but said by paying the fine, he did not accept the judgment finding him guilty[19]. He has even filed a review petition and hopes that the right to open criticism in democracy like India prevails[20].


Above examples tells us a lot about the Internet culture that persist in India especially in controversies of BoisLockerRoom, Manav Singh Suicide, Rape threats to the Comedian by a youtuber are some of them. Even daughter of the Captain Cool MS Dhoni, received rape threats over social media following Chennai Super Kings (CSK) loss to Kolkata Knight Rider (KKR) in the Indian Premier League (IPL) 2020[21]. Ziva Is just 5 years old which is a big slap on the Internet’s ‘Harassing Culture’ and tells us about the ill mentality of the people being a part of this. These things don’t happen for once and are taking place every single day. Even when actress Neha Dhupia was trolled for her remarks during an MTV show, some people even imposed rape and death threats on her [22]. Freedom of Speech and Expression is a complex right with reasonable restrictions and provides people to express their ideas, thoughts and philosophies. But it doesn’t mean that by exercising your right, you defame somebody and even hurt their own individual rights. So, as a responsible citizen, we have to understand that it’s our holy duty to be responsible for what we express, be open-minded and be more tolerant than what we are now. Intolerance is a way to destruction and a quality which is not good for a nation like India who has such an old civilization and great heritage that it always stands a chance to be a World Leader in the very future.


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