Wed 25 05 2022
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Fundamental rights of Social Media

Laws regulating contents on Social Media

Social media law India is regulated by the Information Technology Act which was enacted in the year 2000 to regulate, control and deal with the issues arising out of the IT. Social networking media is an “intermediary” within the meaning of Indian information technology act 2000 (IT Act 2000). Thus social networking sites in India are liable for various acts or omissions that are punishable under the laws of India.

Section 66A of the IT Act has been enacted to regulate the social media law India and assumes importance as it controls and regulates all the legal issues related to social media law India. This section clearly restricts the transmission, posting of messages, mails, comments which can be offensive or unwarranted. The offending message can be in form of text, image, audio, video or any other electronic record which is capable of being transmitted. In the current scenarios such sweeping powers under the IT Act provides a tool in the hands of the Government to curb the misuse of the Social Media Law India in any form.

However, in 2015, in a landmark judgments upholding the right to free speech in recent times, the Supreme Court in Shreya Singhal and Ors. vs Union of India, struck down Section 66A of the Information & Technology Act, 2000. The ruling which is being lauded by the common man and legal luminaries alike, found the Cyber law provision to be open-ended, vague and unconstitutional owing to the restriction it caused to the Indian citizens’ right to free speech.

The repeal of S.66A does not however result in an unrestricted right to free speech since analogous provisions of the Indian Penal Code (IPC) will continue to apply to social media online viz. Intentionally Insulting Religion Or Religious Beliefs (S. 295A), Promoting Enmity Between Groups On Grounds Of Religion, Race Etc. (S. 153A), Defamation (S. 499), Statements conducing to Public Mischief (S. 505), Insulting The Modesty Of A Woman (S 509), Criminal Intimidation (S 506), Sedition (S124-A), etc.

One of the important section that would be effective against posting offensive messages on social media would be invoking sec 499 and 500 of IPC. Under the IPC, the defamatory statement could be oral or written or in sign language or by visible representation and should be made/ published with intention to harm or with knowledge about its defamatory character (IPC, section 499). Thus, section 499, IPC is wide enough to encompass the publication and dissemination of defamatory content via electronic means. Defamation is punishable under section 500, IPC.

Further, the law against obscenity is a reasonable restriction on the “fundamental right to freedom of speech and expression”. Technology has expanded the ambit of the offence of obscenity. Today, obscene material (including pornography) is easily available at the click of a mouse and people can access it in the privacy of their homes. The Internet facilitates the creation as well as rapid transmission of such material across the world.  Legal regulation is complicated by the fact that there is no universally acceptable definition of obscenity. What is considered obscene material in one country may not be considered so in another. Technologically also, there is absence of effective filters to screen out objectionable material on the Internet.

The traditional law dealing with obscenity (including pornography) in India is contained in sections 292-294 of the IPC. Section 292, IPC prohibits sale, letting on hire, distribution, public exhibition and circulation etc., of obscene material. Section 293 provides enhanced punishment for sale etc. of obscene material to any person under the age of twenty years. Even an offer or attempt to do so is punishable. Publishing as well as circulating of obscene photographs of women is also punishable under sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986. These provisions can also be used for punishing people who circulate obscene material in electronic form.

In view of the above, though sec 66A of the IT Act has been held unconstitutional by the apex court but still a victim of cyber offence would not be rendered remediless and could invoke the appropriate section and law to get desired relief.

—————————————————–Freedom of Speech———————————————-

 Freedom of speech, considered the basic freedom by most philosophical thinkers, consists of several facets, including the right to express one’s opinion unhindered, unfettered by the fear of retribution. It is one of the most basic elements for a healthy, open minded democracy. It allows people to freely participate in the social and political happenings of their country.

In India, this right is granted by Article 19(1)(a). However, this right of freedom to speech and expression is not completely unchecked. Article 19 (2) allows for reasonable restrictions to be imposed on all fundamental rights, including that of freedom to speech and expression.

In Romesh Thappar v Union of India, Justice Patanjali has rightfully held that 19(1)(g) is the very basis and essence of the constitution and our democracy. Reasonable restrictions, however, he noted, should be such that others’ rights should not be hindered or affected by the acts of one man, in the case of Menaka Gandhi v. Union of India.

The judiciary has upheld the restrictions that can be imposed and the author describes them under several subheadings, but the courts have also held that the government’s interference in this right has to also be kept in check.

Freedom of Speech and Expression- Meaning & Scope

Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1) (a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.  It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.[i]

It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their circumstances and the class to which they belong, the fundamental right to freedom of speech and expression would constitute a violation of Article 19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. In fact, the freedom of speech and expression gives greater scope and meaning to the citizenship of a person extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy the aforesaid rights. In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press lat at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible’

However Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to express ones views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right includes the right to communicate, print and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1)(a). The freedom of the press is regarded as a “species of which freedom of expression is a genus”[ii]. On the issue of whether ‘advertising’ would fall under the scope of the Article, the Supreme Court pointed out that the right of a citizen to exhibit films is a part of the fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Constitution.[iii]

Indian law does not expressly refer to commercial and artistic speech. However, Indian Law is developing and the Supreme Court has ruled that ‘commercial speech’ cannot be denied the protection of Article 19(1)(a) of the Constitution. The Court has held that ‘commercial speech’ is a part of the ‘right of freedom of speech and expression’ as guaranteed by our Constitution. The citizens of India have the right to receive ‘commercial speech’ and they also have the right to read and listen to the same. This protection is available to the speaker as well as the recipient.[iv] Freedom of Speech and Expression also includes artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) because the common basic characteristic of all these activities is freedom of speech and expression.[v]

Under the provisions of the Constitution of India, an individual as well as a corporation can invoke freedom of speech arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech argumentsis not limited to individuals alone. Corporations are also entitled to invoke sucharguments. The cases of Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757and Indian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC. 515, areof great significance. In these cases, the corporations filed a writ petition challenging theconstitutional validity of notifications issued by the Government. After much deliberation,the Courts held that the right to freedom of speech cannot be taken away with the objectof placing restrictions on the business activities of citizens. However, the limitation on theexercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) isnot valid.

Importance of Freedom of Speech

Freedom of Speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. The freedom of speech and liberty is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy liberties giving succor and protection to all other liberties. It is the mother of all liberties.[vi]

In a democracy, freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in the formation of public opinion on social, economic & political matters. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would help formation of one’s opinion & view point & debates on matters of public concern. So long as the expression is confined to nationalism, patriotism & love for the motherland, the use of National flag by the way of expression of those sentiments would be a Fundamental Right.

In Maneka Gandhi v. Union of India,[vii]BHAGWATI J.,has emphasized on the significance of the freedom of speech & expression in these words:

Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.

This aspect of the right to freedom of speech and expression extending the concept of citizenship to include socio-political participation of a person is critical in the process of determining the scope of right to life of a citizen under Article 21 of the Constitution. It is important to note that the scope of the “freedom of speech and expression” in Article 19(1)(a) of the Constitution has been expanded to include the right to receive and disseminate information. It includes the right to communicate and circulate information through any medium including print media, audio, television broadcast or electronic media.

The judiciary has time and again opined that the right to receive information is another facet of the right to freedom of speech and expression and the right to communicate and receive information without interference is a crucial aspect of this right. This is because, a person cannot form an informed opinion or make an informed choice and effectively participate socially, politically or culturally without receipt of adequate information. The Supreme Court in State of Uttar Pradesh v. Raj Narain31 has held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding matters of public concern. This position was reiterated by the Court in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal32 wherein it was held that Article 19(1)(a) includes the right to acquire and disseminate information. The Supreme Court, while opining on the right to freedom of information, further noted in Dinesh Trivedi, M.P. and Ors v. Union of India33 that “in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare.”

The print medium is a powerful tool for dissemination and receipt of information for any citizen. Thus, access to printed material is crucial for satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the Constitution. Persons with print impairment have no access to printed material in their normal format. Failure on part of the State to make legislative provision for enabling access to persons with print impairment of material in alternative accessible formats would constitute a deprivation of their right to freedom of speech and expression and such inaction on the part of the State falls foul of the Constitution. In view of the same, it is an obligation on part of the State to ensure that adequate provisions are made in the law enabling persons with print impairment to access printed material in accessible formats.

Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press and the same is included in the freedom of expression, which is conferred on all citizens (Virender Vs. State of Punjab, A. 1958, SC. 986 and Sakal Papers Vs. Union of India A.1962 S.C. 305). It has also been by this judgment that freedom of the press under the Indian Constitution is not higher than the freedom of an ordinary citizen.

Need to Protect Freedom of Speech and Expression

Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –

  • For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinion. That is to say, it assists in the discovery of truth.
  • Free speech as an aspect of self- fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
  • For expressing belief and political attitudes – freedom of speech provides opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
  • For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy.

Indian Perspective

In India under Article 19(1)(a) of the Constitution of India “all citizens shall have the right to freedom of speech and expression”. In the Preamble to the Constitution of India the people of India declared their solemn resolve to secure to all its citizens liberty of thought and expression. The Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation.

Article 19(2) of the Constitution of India provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of speech would include both artistic and commercial speech which is required to be protected. Freedom of speech and expression would include artistic speech as it includes the right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) of the Constitution because the common basic characteristic of all these activities is freedom of speech and expression.

Under Fundamental Laws of Social Media There is no anywhere its shows/wirtten or Marked as its 100% NEWS media portal. This website is a “Online Media portal” and a Social Media Part or a Section of Newspaper. It Clearly Shown in Logo That Shajapurtimes Newpaper & Online Media.

Under the Constitution of India an individual as well as corporation can invoke freedom of speech and their fundamental rights.  Freedom of Speech is not only protected from unwarranted governmental interference but also when a private party calls upon a Court to enforce rules of law whose effect would be to restrict or penalize expression. Much would depend on the issue as to whether the reference to the trade mark involved has been used in the trade mark sense, for example, as envisaged in Section 2(2) (a), (b) and (c) of the Trade Marks Act, 1999. There is dearth of case law of how free speech interests are involved in trade mark litigation. In a given case a party could challenge an act or omission on the part of the Registrar of Trade Marks on the ground that it infringes the fundamental right of a citizen.

For example: Freedom of speech and expression; or Registrar has acted in a manner which is against all norms of natural justice. A party could also in a given case challenge the vires of a provision in the Trade Marks Act, 1999 or the Rules framed thereunder – if it would violate the right to freedom of speech and expression.

Under the Trade Marks Act, 1999 there is no specific reference in crystal clear terms to criticism of another’s mark. However reference is invited to Section 29 (8) & (9) of the Trade Marks Act, 1999 as follows:–

“Section 29(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising

  • takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
  • is detrimental to its distinctive character; or
  • is against the reputation of the trade mark.”

Infringement by oral use is provided for in sub–section 9 of Section 29:

“(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.”

The position of law is that a tradesman is entitled to declare that his goods are the best in the world even if the statement is untrue, but he may not in any circumstances say that his competitor’s goods are bad or criticize his competitors goods. If he makes such a statement, it would amount to slander.

There is no ‘fair use’ clause or an ‘open end’ clause in Indian Trade Mark law. In India, there is dearth of cases on trade mark infringement where the defendant has invoked freedom of speech as a defense. Joke articles in India are treated like any other and the author is not entitled to any additional immunity for the reason that the article is a humorous one.

Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation.

Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan case, observed,

“man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”.

It therefore includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.

Copyright Laws-

The Copyright Act, 1957 came into effect from January 1958. This Act has been amended six times till date since then, i.e., in 1983, 1984, 1991, 1994, 1999 and 2012. The Copyright (Amendment) Act, 2012 is the most substantial. The main reasons for amendments to the Copyright Act, 1957 include to bring the Act in conformity with WCT and WPPT; to protect the Music and Film Industry and address its concerns; to address the concerns of the physically disabled and to protect the interests of the author of any work; Incidental changes; to remove operational facilities; and enforcement of rights. Some of the important amendments to the Copyright Act in 2012 are extension of copyright protection in the digital environment such as penalties for circumvention of technological protection measures and rights management information, and liability of internet service provider and introduction of statutory licences for cover versions and broadcasting organizations; ensuring right to receive royalties for authors, and music composers, exclusive economic and moral rights to performers, equal membership rights in copyright societies for authors and other right owners and exception of copyrights for physically disabled to access any works.