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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

CRITICAL ANALYSIS ON EXISTING RESTRICTIONS

IMPOSED BY FREEDOM OF SPEECH AND EXPRESSION
UPON SOCIAL MEDIA

Swathi Ashok Nair, LLM (Hons) (Constitutional Law), School of Legal Studies, CUSAT

ABSTRACT

Social media is a modern media platform where now people get

interconnected in a more integrated and lucid manner. In this cyber platform,
the feasibility to express the opinions by the public has been widened,
therefore forcing to put certain restrictions to ensure the fair constitutional
governance.

Freedom of speech and expression has been fairly guaranteed by Indian

Constitution, but at the same time, imposes certain restrictions under Article
19 (1) (2), to prevent this freedom from having an absolute nature.

We have been witnessing several issues relating to opinion expressions by

the public, as well as few public figures. Taking a case of public; if you scroll
through your Insta feed, sometimes you may come across a few dancing reels
of some ladies, where many vulgar and obscene comments have been posted
below such reels. Such comments can have a negative impact on others,
which they get self-encouraged to post such comment and tarnish the image
of victim lady itself. Similar instances happen against the public figures,
where they could be subjected to false accusations.

Although there exist some Legal regulations on social media imposed By

Information Technology Act, and most recent, the intermediary rules 2021,
whether these are in conformity with Article 19(1)(2) should be critically
examined. Further through this Article. The Author tries to Analyse the
effectiveness of restrictions imposed by Article 19(1)(2) upon the social
media.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

Introduction

Freedom of speech and expression is one of the most essential kinds of freedom we all possess.
An individual shall have the right to speech, and also right to remain silent. Almost all the
procedural laws as well as the Indian constitution have recognised this freedom, and have
drafted various laws and rules accordingly.

However, the law makers felt that this freedom shall be detrimental if they are not restricted
reasonably. Through incorporating Article 19 (2)1, they made it sure that this freedom shall be
restricted on certain grounds. According to Article 19(2), exercise of this right can be restricted
in the interest of the sovereignty and integrity of India, 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 offence. According to article 3582, during the declaration
of national emergency also, 6 fundamental freedoms under Article 19 is also duly suspended;
and this includes freedom of speech and expression.

Nowadays, social media is a thriving area of mass media communication, where People can
freely express their opinions. Absolute expressions of opinions can pave way to cybercrimes,
such as online stalking, misuse of private information and also can be a trigger to the false
accusations. This is where Article 19 (2) comes into the play.

Apart from Indian constitutions, there are other legislations which regulates social medias,
which mainly are put under control of the IT laws. But however, these legislations are silent
about the crimes such a defamation, false accusations, etc. Also, whether these legislations are
in conformity with the restrictions imposed under Article 19 (2) is also to be rechecked.

Through this Article, the author intends to critically analyse whether the social media
legislations are in conformity with Article 19 (2). The effectiveness of restrictions imposed by
Article 19 (2) upon the social media, and whether these restrictions on social media during the
time of national emergency period is also critically examined.

Social media Legislations and Freedom of speech and expression

Chapter XI of Information Technology Act, 2000 enlists a series of punishable offences related
to cybercrimes. Section 66A prescribes the punishment for sending offensive message through

1INDIA CONST. art. 19, cl. 2.

2 INDIA CONST. art. 358, cl. 1.

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

communication service. Social Media can be categorised as one of the modes of

communication service, although the word 'social media' has not been explicitly mentioned in
the section.

The urgency for addressing the cyber crimes such as video voyeurisms, Phishing, identity theft
and offensive messages through communication services in the legislations such as Code of
Criminal Procedure, Indian Penal Code has been mentioned in Shreya Singhal's case3 . In this
case, whether Section 66A infringes the fundamental right to free speech and expression and
whether it is saved by any of the 8 subjects covered in Article 19(2) is questioned. The Hon'ble
Supreme court hereby have quoted the decision in Whitney.v. California4 "fear of serious injury
Cannot alone justify the suppression of free speech and assembly".

But here the question again arises; what constitutes the 'Fear of serious injury'. The eight
subject matters mentioned in Article 19(2) envisages upon the interest of the state as a whole
and have less concerns about individual rights. As far as social media is regarded, individual
rights are affected rather than the collective rights. Therefore, if the Supreme court ought to
protect the individual rights, it shall reconsider its decision in Whitney.v. California, and shall
categorise what constitutes the fear of serious injury, in which the suppression of free speech
and expression shall be justified.

There was a recent incident in Kerala, where a girl's reputation and her dignity were tarnished
when a man came live on Instagram and showered obscene and vulgar comments about her.
Since such an incident is related to defamation, and affects the decency, these kinds of actions
shall be monitored and strictly restricted. In fact, they can be categorised in the restrictions
placed under Article 19(2), since it comes under defamation, intimidation of offence and
decency.

The Information Technology rules, 2011 have witnessed various criticisms, where these rules
where ineffective in curbing the issues like abusive language, defamatory contents and hate
speeches. These Rules were supposed to link these offences with the restrictions imposed under
Article 19(2), but it deliberately failed to address it. The algorithms used by these platforms to

3 Shreya Singhal v. Union of India, (2013) 12 SCC 73.

4 Whitney v. California, 274 U.S. 357 (1927).

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

optimize views and advertisements often fail to distinguish between relevant or useful content
and abusive content and fake news, thereby amplifying them in very little or no times.

The recent Developments in judiciary regarding the directions to the government to impose
some restrictions on the social media have been developed. In Tehseen. S. Poonawalla .v. UOI6

,
the Supreme Court had directed government to halt dissemination of Explosive messages and
videos in social media platforms, which are of the nature of inciting mob violence and lynching
of any kind. In Re: Prajwala7 , the Supreme Court issued the order to government to frame
necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos and
sites in content hosting platforms and other applications. The Judiciary through these cases, is
trying to restrict the arbitrary freedom possessed by the media, and tends to bring it under the
purview of restrictions under Article 19(2).

On the Account of the above developments, The Information Technology (Intermediary

Guidelines and digital media Ethics code) Rules 2021 were released by the Ministry of
Electronics and Information technology on February, 2021. In these rules, special emphasis is
given for women and children, to ensure the protection from sexual offences, fake news and
other misuse of social media.

Rules formed thus proves the conformity to the previous Supreme court observations.
According to the new rules, the intermediaries are mandated to remove disable contents that
are against the safety and dignity of the individuals within 24 hours of receiving complaints.
According to the government, knowing the "first originator of information" (also known as
"traceability") of messages that cause violence, riots, terrorism, rape or threat to national
security fall under reasonable exceptions to Right to Privacy - which again is not absolute as
per the Constitution'.

Th Rules also contained a regulation under Rule 4, which enlists Additional due diligence to
be observed by significant social media intermediary. Clause 2 specifies on the requirement of
enabling the identification of first originator of the information on its computer resource, under

5 Debopama Bhattacharya,
The Information Technology (IT) Rules, 2021, MANOHAR PARRIKAR INSTITUTE
FOR DEFENCE STUDIES AND ANALYSES, (Jun. 16, 2022, 9:30 AM), https://www.idsa.in/idsacomments/it-
rule s-2021-dbhattacharya-
04062 1#:~:text=The%20IT%20Rules%2020210%20aim,be%20a%20resident%20in%20India.
6 Tehseen. S. Poonawalla .v. Union of India, (2018) 9 SCC 501.
' In Re: Prajwala E-Letter, Videos Of Sexual Violence And Recommendations, SMW (Crl.)No(S).3/2015.
8 Sidhartha & Pankaj Doval, 'Rules protect rights of users, were framed because social media giants failed

to do so: IT and law minister Ravi Shankar Prasad', THE TIMES OF INDIA, (2021).

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

an order passed by judicial court, or an order passed under Section 699 by the Competent
Authority as per the Information Technology (Procedure and Safeguards for interception,
monitoring and decryption of information) Rules, 2009. If we observe the proviso clause, such
an order has been strictly subjected for the purpose of Restrictions imposed under Article 19
(2). Although along with this proviso, offences related to women and children is also
mentioned, the restrictions based on Morality or decency is still lacking.

Section 49910 of the Indian Penal Code construes the laws on defamation and through recent
amendment, its applicability is extended to "electronic documents", where social media
platforms are implied. This section can be said to be in conformity with restriction imposed
under article 19(2).

Restrictions on social media during emergency

Under Article 358 of the constitution, on proclamation of emergency, Article 19 can be duly
suspended. This means that freedom of speech and expression of a person is not guaranteed
and can be subjected to absolute restriction, which can even supersede Article 19(2).

The Influence of social media on today's population have crossed the limits; there is not even
a single person who doesn't use social media in their daily lives. In such a situation, absolute
restriction on social media is something unacceptable to the public.

Rule 16 of the IT rules 2021 states that in case of emergency, the Secretary of Ministry of
Information and broadcasting has the power to control the computer sources and block the
information, after considering whether such information comes within the grounds referred to
in sub section (1) of Section 69 A. This power to block internet content in an emergency
situation had been there since 2009, under the Information Technology (Procedure and
safeguards for Blocking for Access of Information by Public) Rules, 2009, and no change has
been made upon this since then. However, under what all kind of emergencies where this rule
can be invoked is not specifically mentioned in the rules.

This provision has been subjected to criticism from the Opposition Party, terming it as

9 Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information)
Rules, 2009, § 69, No. 21, Act of Parliament, 2000 (India).
10 Indian Penal Code, § 499, No. 45, Act of Parliament, 1860 (India).

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Indian Journal of Law and Legal Research Volume IV Issue III IISSN: 2582-8878

"dictatorial and "a Threat to Democracy"", thus infringing the privacy of individuals and free
speech prescribed under Article 19 of the Constitution. Before contending it to be Arbitrary in
nature, the constitutionality of such power is within the ambit of the restriction placed under
Article 19(2) is to be critically examined. What this provision lacks are the clear specification
of emergency situations where certain information can be blocked and what kind of information
is also ambiguous. It is left to the discretion of the secretary to decide in which all situations
and what all information can be blocked.

The General principles of the rule subjects the publisher to take into account the following
factors before transmitting or publishing or exhibiting any contents affecting sovereignty and
integrity of India, endangers of jeopardise the security of the state. Detrimental to India's
friendly relations with foreign countries and the contents which is likely to incite violence or
disturb the maintenance of public order12 . This ensures the conformity with the restrictions
imposed by article 19 (2) although, it lacks the inclusion of decency and morality factors into
consideration.

Coming to the state emergencies, whether the state governments can restrict the social media
platforms into the affairs of the state is still a debatable question. The complete internet
shutdown in Jammu Kashmir, in the 2019, before reading down Article 370, have created lot
of Chaos in the entire state, and the constitutionality of such Act was challenged, and was
subjected to huge criticisms. The Videos and images of women and elderly villagers
confronting the military men, with their homes and the 155 mm Bofors artillery guns as a
backdrop, began to circulate on social media. Mobile data services were immediately shut
down in the entire district, through an emergency order issued by the IGP Kashmir, citing the
standard grounds of the "likelihood of misuse of data services by anti-national elements for
uploading inciting/objectionable material having the potential of disturbing the public order13
.

Although the justification provided for this restriction is to maintain the sovereignty and
integrity of the state, it has already havocked the public order. Such kind of restriction shall be

" Poulomi Saha, Power to block internetcontent in emergency been there since 2009: Govt, INDIATODAY (Jun.
17, 2022, 11:00 AM), https://www.indiatoday.in/india/story/power-to-block-internet-content-in-emergency-
been-there-since-2009-govt-1773806-2021-02-27.
12 Information Technology (Intermediaries Guidelines) Rules, 2021, § 3(i), Appendix rule II, No. 21, Act of

Parliament, 2000 (India).

13 Shakir Mir, J&K InternetShutdown Based on 'Dubious'LegalFramework:Report, THE WIRE, (Jun. 17, 2022,

1:00 PM), https://thewire.in/government/jammu-and-kashmir-internet-shutdown-jkccs.

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Indian Journal of Law and Legal Research Volume IV Issue III I ISSN: 2582-8878

placed, only if the authorities are able to balance the sovereignty integrity of the country and
the public order.

The question of importance of freedom of speech and expression in social media arises, mainly
during the times of emergency. With the advent of social media, people come to know about
each piece of information, and restricting the use of social medias by cutting off internet
connection is an implorable attempt from the part of the Government. Whether to categorise
the right to access to social media as a freedom of speech and expression, or right to life and
personal liberty is still a debatable issue. In Faheema Shirin .v. Union of India14 , it was held
that the right to use Internet associates with the right to Privacy and education under Article 21
of the constitution. Therefore, in the emergency situations, restricting internet access, would
place an indirect restriction on social media, which in turn leads to violation of right to privacy.
This Implies that the government cannot restrict the social medias on the suspension of Article
19, since accessing social media come under Article 21, which cannot be suspended even
during the period of Emergency.

Conclusion

The influence of social media has been growing day by day. It is an essential freedom in 2 1st

century, but claiming it as absolute right would be detrimental to the society. Reasonable
restrictions shall be placed upon them, and it can be done in compliance with Article 19(2).
Social media has been a blend of various rights; it can be classified under right to freedom of
speech and expression, right to privacy, right to information, etc. each right is categorised under
varied situations and whether placing restrictions upon these is reasonable or not is to be
checked properly.

The inefficiency and flaws in existing social media legislations should be properly dealt with,
mainly by giving clarification regarding certain terms, which remains ambiguous. Restrictions
placed on social media shall be made sure that they are in conformity with Article 19(2). All
social media legislations and ethics codes shall be reviewed and checked whether they are in
strict conformity with Article 19(2). In the case of Emergency situations, the government shall
assure that an individual's fundamental rights shall not be violated.

14 Faheema Shirin .v. Union of India, No.19716 OF 2019(L).

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