Restriction on freedom of Speech on the grounds of “public order” and “morality” in the age of internet

INTRODUCTION

Freedom of speech and expression is guaranteed under Article 19(1) (a) of the Indian Constitution. The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It can be stressed upon that when it comes to democracy, liberty of thought and expression is of paramount significance under our constitutional scheme. However, the freedom guaranteed under Article 19(1) (a) is subject to reasonable restrictions found in Article 19(2) that can be enforced by the State and are in the interests of sovereignty and integrity of the State, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense. The Court has laid down what “reasonable restrictions” means in several cases. In Chintaman Rao v. The State of Madhya Pradesh, 1950 the phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. In the case of State of Madras v. V.G. Row, , it was held that while imposing reasonable restriction on the exercise of the right both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness.

In the modern digital age, internet has taken the world by a storm. There has been great hue and cry for the urgent need of an efficient internet government scheme which includes even inter-nation internet governance scheme. In India, ever since the dawn of the new millennium the number of internet user has been rapidly increasing with figure now being approximately 30 crore users. The recent scheme of Digital India by the government aims to aims to provide broadband connectivity to nearly 2.5 lakh villages by 2017. In such a scenario, with so many internet users and the greater impact of the social media, the protection of online freedom of speech and expression become all the more important. The ambit of reasonable restriction has increased to a great extent because of the wide reach of the internet and social media, where people from across the globe are connected.

The Information Technology Act, 2000 deals with laws related to the internet and different electronic medium of communication. But the case of Shreya Singhal v Union of India, has been a landmark case in establishing the loop holes in the Information Technology Act, 2000. In the Shreya Singhal case, the court struck down Section 66A of the Information Technology Act, 2000 in its entirety being violative of Article 19(1) (a) and not saved under Article 19(2).Also, In Shreya Singhal case the court recognized that internet as a medium is different from conventional medium of information and has far greater reach. The Court made the distinction between internet and other media on the ground of greater reach, ability to literate as well as illiterate, no pre-censorship available, technology available to create serious potential social disorder, ability to spread rumours, maintain anonymity of internet, invasion of privacy possible, ability to sexually harass online, lack of institutional approach and individualistic approach present, ability to create abusive content with a click.  Also, the landmark case brought forth the need for better laws with respect to internet and other electronic mediums of communication. It also called for a wider interpretation of reasonable restriction under Article 19(2) by the courts especially when the restriction is case of speech in social media.

Furthermore, Internet as a different media has also been accepted by foreign courts, for example in the case of Reno, Attorney General of the United States, et al.v. American Civil Liberties Union et al, 1997 it was held that without exaggeration it can be concluded that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country and indeed the world as yet seen. Thus the internet, especially the social media provides for an entirely different medium of communication and the right of freedom of speech stands on an entirely different ground on such a medium. Hence the restriction imposed on freedom of speech on the internet or for that matter on any other electronic medium of communication is need to handle precariously and cautiously.

Though there has been an acceptance of the internet as an entirely different media but how the restrictions to freedom of speech as given under Article 19(2) be interpreted in regard to the content posted on the internet is still an area of concern. Among the several parameters of restriction given under 19(2), this blog highlights the restrictions on the ground of “public order” and “morality or decency”.

RESTRICTION ON THE GROUND OF PUBLIC ORDER

A restriction on freedom of speech can be made on the ground of public order according to the constitution. This ground was added by the Constitution (First Amendment) Act. Romesh Thappar v. State of Madras, 1950 the Court held that “public order” is an expression which signifies a state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.” In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960 the Court held that public order is synonymous with public safety and tranquillity; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State. In the case of Dr. Ram Manohar Lohia v State of Bihar & Ors., 1966 the Court held that one has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.

While interpreting Article 19 the US courts play an important in deciphering the meaning conveyed through the article. One such is the interpretation of public order term through clear and present danger test which in its current form states that: “The constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In State of Bihar v. Shailabala Devi, 1952 the Court said that an article, in order to be banned must have a tendency to excite persons to acts of violence. The test laid down in the said decision was that the article should be considered as a whole in a fair free liberal spirit and then it must be decided what effect it would have on the mind of a reasonable reader. In Ramji Lal Modi v. The State of U.P.,195715 the court upheld Section 295A of the Indian Penal Code only because it was read down to mean that aggravated forms of insults to religion must have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v. State of Bihar, 1962, Section 124A of the Indian Penal Code was upheld by construing it narrowly and stating that the offence would only be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free speech under Article 19(1) (a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors., 1996 Section 123 (3A) of the Representation of People Act was upheld only if the enmity or hatred that was spoken about in the Section would tend to create immediate public disorder and not otherwise. Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquillity. Anything that disturbs public tranquillity or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order.

The IT Act, 2000 provides provision to the state to apply reasonable restriction on freedom of speech and expression in case of electronic communication. For example, section 69A of the IT Act makes it possible for the Central Government to block content. Sec 69 gives Powers to issue directions for interception or monitoring or decryption of any information through any computer resource Sec 69A gives power to issue directions for blocking for public access of any information through any computer resource Sec 69B empowers to authorize to monitor and collect traffic data or information through any computer resource for Cyber Security. Importantly, the Rules that were issued under the section explicitly allow for a speed procedure to put into place such blocks in case of emergency. The situation however is better established in Europe where the court has differently interpreted restriction under public order and the internet governance.

There are two approaches which are provided for by the European Convention on Human Rights: – the approach of exclusion from the protection of the Convention, provided for by Article 17 (prohibition of abuse of rights) , where the comments in question amount to hate speech and negate the fundamental values of the Convention; and the approach of setting restrictions on protection, provided for by Article 10, paragraph 2, of the Convention (this approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention).  Internet news portals which, for commercial and professional purposes, provide a platform for user-generated comments assume the “duties and responsibilities” associated with freedom of expression in accordance with Article 10 and 2 of the Convention where users disseminate hate speech or comments amounting to direct incitement to violence. In the case of Willem v. France, 2009 the Court has already had occasion to indicate that Article 10 and 2 leaves little room for restrictions on freedom of expression in political speech or matters of public interest. Whilst an individual taking part in a public debate on a matter of general concern is required not to overstep certain limits as regards in particular respect for the rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements. In the case of Sürek v. Turkey, the Court held with respect to political speech that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.

Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. In matters of political and militant expression within a public-interest debate, Article 10 requires a high level of protection of the right to freedom of expression on the Internet, as for other means of communication. That freedom thus enables an elected representative, in a context of political opposition, to use virulent critical remarks about political leaders concerning a matter of general interest and any written or verbal exaggeration concerning that subject can be tolerated. In the case of Renaud v. France19, the criminal conviction of a webmaster for publicly insulting a mayor, on account of remarks published on the website of an association chaired by the webmaster, was regarded as excessive. Thus with respect to Internet Governance and the application of IT Act when applied to electronic medium the case laws of European convention helps to develop a better understanding for the application of such laws in the future.

RESTRICTION ON THE GROUND OF DECENCY OR MORALITY

The way to express something or to say something should be decent one. Decency connotes the same as lack of obscenity. Obscenity becomes a subject of constitutional interest since it illustrates well the right of the individual to freely express his opinion and the duty of the state to safeguard the morals. In India, the scope of indecency or obscenity under the existing law is illustrated in Section 292 to 294. The Court in Ranjit Udeshi v. State of Maharashtra, 1965 took a rather restrictive view of what would pass must as not being obscene. The Court followed the test laid down in the old English judgment in Regina v. Hicklin (1868) also known as Hicklin’s test which was whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences. In the case of Director General, Directorate General of Doordarshan v Anand Patwardhan, 2006, this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter lacks serious literary artistic, political, educational or scientific value. The judgment of the Court in Aveek Sarkar v. State of West Bengal, 2014, this Court referred to English, U.S. and Canadian judgments and moved away from the Hicklin test and applied the contemporary community standards test.

Section 67 of the Information Technology Act, 2000 deals with punishment for publishing or transmitting obscene material in electronic form. On July 31st 2015 the government of India imposed a ban on pornography in India blocking 800 explicit content websites in order to stop pornography becoming a public nuisance. There was much hue and cry throughout the nation stating that a ban such as this is an intrusion into the private lives of the individual. Later the government was forced to back out of such a stand but continued on its ban on child pornography.

While speaking of decency or morality different parts of the world have different stance towards it. In U.S. the judgments of the court has been more towards establishment of freedom of speech and expression over such bans. In the case of Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al two provisions of the Communications Decency Act of 1996 which sought to protect minors from harmful material on the internet were adjudged unconstitutional. Similarly in the case of John D. Ashcroft v. American Civil Liberties Union, the Child Online Protection Act’s requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive. However the stance in Europe or Australia is totally different which is highlighted in this case of R v. Perrin in which the court held was that ‘downloading’ material into the UK constituted publication’ irrelevant of where it was ‘uploaded’, and therefore was an offence under UK law under Publishing an Obscene Article, contrary to section 2(1) of the Obscene Publications Act 1959. Adding on the court said that there is a clear difference between what is necessary to preserve the confidentiality of secret information, which is compromised after the very first publication of the information and what is necessary to protect morals, where harm can be caused at any time at which a person is confronted with the material.

Moreover, in the European court of human rights in the case of K.U.v. Finland, which was concerned about an advertisement of a sexual nature posted about a 12-year old boy on an Internet dating site. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It considered that posting the ad was a criminal act which made a minor a target for paedophiles. It was further held that although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others.

Thus on the question of imposing reasonable restriction on the ground morality or decency with respect to content on the internet, there are various paradigms available which deal precisely with the said question and it depends solely on the cultural and social values of the land. In the country like India, the question is even more complex owing to its diverse nature and is more often than not left to the interpretation of the court so as to see how far the law of the land is valid in imposing such restrictions. The approach in some cases can be a more liberal one like the adopted by the US courts or can lay stress on the IT Act provisions available, but in either scenario a very fine line is there which needs to be maintained.

 

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