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Freedom of Speech in the Digital Age

Speech vs Defamation

By Akash Swami


“Total session time—the time spent on an app each day—on popular social media apps such as Facebook and Instagram grew significantly between Feb. 2 and March 29, data on India from market intelligence platform Kalagato show”.[1] This data is significantly enough to showcase the level of dependence these social media tools have on our life and the mass reach these social platforms have all over the world. With the outbreak of the pandemic of COVID-19, surge in the social media platforms has acted as blessing in disguise for these providers.


Armed with digital technologies, people have now become their own broadcasters, speaking to an indefinite number of people, not only in their own countries, but around the world due to which “Freedom of Speech” has been dynamically transformed thereby leading to the people to reach with their views to the entire world with a click of mouse.

But with the ease with which the Freedom of Speech and Expression is used using the digital platforms has greatly led to some serious disasters and very often the fine line of balance between the freedom of speech and expression and the reputation of a person or an entity is crossed thereby resulting in some chilling effects. In the recent times, India has already witnessed a lot of bloodshed due to the spread of fake news and this very reason prompted the Indian authorities to ask the Silicon Valley giants to be vigilant on monitoring the spread of fake news on Coronavirus using their platforms.[2] Arguably the torch bearers of the freedom of speech has started a debate against the government by ushering the concept of Collateral Censorship which occurs when an intermediary refuses to carry a speaker's message for fear of legal liability.

Let us dive further and understand what are the legal position and how courts are dealing with the rising conflict between Freedom of Speech and Expression and Right of Reputation.



FREEDOM OF SPEECH AND EXPRESSION:


Art 19(1) (a) is the fundamental right in the form of freedom of speech and expression of all the citizens. One’s opinions may be expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom includes a person’s right to propagate or publish the views of other people.

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. For example: Newspapers, films, Advertisements etc. It includes the freedom of communication and the right to propagate or publish opinion.

This very Article 19(1) (a) is the most cherished and widely worshipped article which provides the citizen of our country the sense of joy and dignity to be completely expressive with their view(s), which is still a long awaited dream of many people residing all over the globe. The very example of China which does not allow the free flow of information and applies a filter to every information which reaches to the world is ironically more true today than ever, as most of the countries all over the globe are questioning the real source and loss of lives due to the pandemic of COVID-19.


The pedestal at which the Article 19(1)(a) is placed in this country is completely evident from the plethora of judgments and ruling given on the subject of freedom of speech and expression. In Romesh Thappar vs The State Of Madras[3], the Hon’ble Apex Court held that that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. The United States also gives equally high value and place to the freedom of speech which is clear from the landmark judgement of Near v. Minnesotta[4] in the words of Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits."

But is the Freedom of Speech as enrichened under the Indian Constitution completely unfettered?


FUNDAMENTAL IDEA OF DIGNITY:


The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. This principle was laid down by the Hon’ble Supreme Court in a historic judgement of Navtej Singh Johar vs Union of India[5] where the LGBT community were provided the right to live with dignity as equal citizens of the country.

The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between these two rights.


DEFAMATION:


Section 499 of IPC defines Defamation:


Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said,  to defame that person. Imputation of truth is an exception to this provision.

Section 500 of IPC deals with the punishment with regard to defamation that includes simple imprisonment for a term that may extend to two years or with fine or both.

In Neville Vs. Fine Arts Inst[6]

“A statement is said to be defamatory when it was a tendency to injure the reputation of the person to whom it refers. Such a statement is one which exposes him to hatred, ridicule or contempt or which cause him to be shamed / shunned or avoided or which has a tendency to injure him in his office, profession or calling.”


Essential elements of defamation:

            1. Statement

            2. Specific person

            3.  Publication of the statement

            4. False

            5. In the estimation of the right-thinking members of the society.


In today’s digital world, one’s view(s) can spread like forest fire and once the opinion is out in the public domain with a click of a button “POST”, till the time the person realizes the fault the damage would have already been done. And we have all seen this happening in the case of fake news amounting to mass gatherings of migrant people all over the country despite lockdown in place or lynching of a person.


HOW MUCH IS TOO MUCH IN THE DIGITAL AGE:


The guiding principles were laid down by the Hon’ble Apex court in SUBRAMANIAN SWAMY VS UOI[7] where the court held that the concept of ‘reputation’ is a part of ‘dignity’, which is a part of the constitutionally protected right to life under Art.21. It further recognized the sanctity and significance of the right to freedom of speech and expression in a democracy, but subject to reasonable restrictions. Such restrictions should serve the public interest. Legislation by which restrictions are enacted should not invade the rights and should not be arbitrary.


Thus a certain level of self check should be done while using the digital platforms to express the view(s) as they say authority follows the responsiblity. 

Truth is a defense only when a statement serves the public good.


Author is a Lawyer practicing in Delhi High Court. View(s) of the author are personel.

 
 
 

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