Articles

Freedom of Expression in Digital Era

Ashok Ram Kumar* “The present generation speaks social language in Digital world and Era”

I. INTRODUCTION:

We live ina e-world today where Information technology affects our every day lives. It may not be an over statement to call it as the fourth dimension. Some would also like to call IT as the nervous system of the planet. Information at the speed of light is the order of the day. Right from using a cell phone to call, to watching a video either on CD or on the net, reading news on net, getting to know information or news within a very short span of an event and revolutionary development of mass media are all benefits of information communication technology. New technologies are emerging by way of convergence as well as new inventions. Such technologies not only have made life easy as a positive aspect but have also had its share of negative effect especially with the younger generations. It is not an understatement to say that if man had not made the super highway of information and communication at the speed of light technological growth would have been stunted. Apart from the information at speed of light what everyone agrees is the convenience of access and execution from your bedroom through even your cell phone.

II. HISTORY OF INFORMATION TECHNOLOGY IN INDIA:

India, positioned itself as a major player in the world in developing information technology more specifically in the areas of programming, information technology enable services, implementation of IT in government and judiciary and above all the huge effort in seeing the availability of internet to all netizens in the country. India has also its own share of having indigenously designed and developed computer systems, components and sub- systems. India also contributed exponentially for growth of programmers who could write highly efficient codes and programming languages. Subsequent to 1984, when the IT arena witnessed entrepreneurship, industry realized that there was a great advantage in software development rather than development of hardware. It is this realization that saw India recruit software engineers and send them abroad. It goes without saying that during this period there was a huge boom in employment and software engineers were most sought after. A greater advantage was gained by India when India could offer a great cost advantage when software development was off-shored to India by many multi nationals. The 1990’s saw India positioning itself as a confident and a mature destination for software development and outsourcing. This period not only saw the influx of top software companies of the world into India, but also indigenous software products were being developed. It can be safely stated that though almost all facets of development of IT was due to the government and its policies, private sectors taking advantage of such policies and economic liberalization, placed India as a foremost IT destination in the world.

III. DEVELOPMENT OF INFORMATION TECHNOLOGY LAW IN INDIA:

Technology had always been ahead of law. This situation gave rise to absurdities and peculiar issues. India was not a stranger to such a situation and a need was felt to have a Law to catch up with violations under the IT. The Indian Parliament on 17th October, 2000 notified the Information Technology Act, 2000. The Act was based on the United Nations Commission on International Trade Law (UNCITRAL) which adopted a Model Law on Electronic Commerce in 1996. By a Resolution 51 of 62 dated January 30th, 1997, the UN recommended that all member states “Should give favorable consideration for the said Model Law when such countries enact or revise their laws”. The then Indian Government furthered the cause of having such a law by passing the Information Technology Bill 2000 which received the assent of the President on 9th June, 2000 and thus the Information Technology Act, 2000 came into being. The Act of 2000 had 94 Sections divided into 19 Chapters and 4 Schedules and the Law applied to the whole of India which included Jammu and Kashmir and even had extra-territorial Jurisdiction if the Crime involved if any offense was committed by a citizen of another Country and if such crime involved a computer or network in India. The Act also amended various Sections of IPC, Indian Evidence Act, The Bankers Book Evidence Act, The Negotiable Instruments Act and the Reserve Bank of India Act to make these Acts compliant with new technologies.

In the year 2008 the Information Technology Act was amended. A very important feature of the Act was the attempt by the Government to create Technology Neutral Policy by bringing in the idea of Electronic Signature. Major Amendments were brought in the form of Section 3A, 6A, 7A, 10A, 40A, 43A, 58A-D, 66A-F, 67A-C, 69A-B, 70A-B, 72A, 77A-B, 81A, 84 A-C. The Amendments affected issues of Freedom of Expression, Intermediary Liability, Encryption and Privacy and Surveillance.

Of all these Amendments Section 66 A faced very stiff opposition on the allegation that the said Section violated the Freedom of Speech guaranteed under Article 19 (1) (a) of the Constitution of India. The more serious complaint about this Section was that it was vaguely phrased and was often misused. In a Public Interest Litigation filed by one Shreya Singhal under Writ Petition No. 167 of 2012, the Supreme Court on 24th March, 2015 gave a verdict that 66 A was unconstitutional on the ground that the offenses mentioned under the law were open ended, undefined and vague and that the Public’s Right to know was affected.

In a way in my opinion this Judgment need not have struck down the provision of law itself since at the time the application was filed as an interim measure there was suggestion by the Hon’ble Supreme Court in the form of certain controls being invested eg: Any complaint being filed had to be looked into by an Officer of the Rank of Commissioner of Police or IG and only after a clearance was given could the complaint be proceeded to FIR. The striking down of the provision has also had its effect on certain issues relating to National Security.

IV. INTERNET FREEDOM:

The word INTERNET FREEDOM in the present paper is to be understood as freedom of expression on the NET. The supreme court while dealing the case of MENAKA GANDHI Vs UNION OF INDIA reported in AIR 1978 SC 597, held that freedom of expression is a right and it is also the right of the citizen to gather information and to exchange the thought with others and such others included not only within India but also abroad. It was also held by the Supreme Court that Article 19(1) (a) guarantees to Indian Citizens the right to freedom of speech and expression. It does not delimit the grant of that right in any manner and there is no reason arising either out of interpretational dogmas or pragmatic considerations why courts should strain the language of the Article to cut down amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose regardless of geographical considerations.

The issue of internet freedom cannot be segregated from the technological advance that has taken over and today freedom on internet and cyberspace is completely a different dimension then what existed prior to the internet age. I would like to however tread cautiously here and would say that in variable of the trend of the internet the debate always has to be centered within the precincts of Article 19 of the Indian Constitution. I would also risk by saying that internet freedom to a Netizen cannot be and should not be beyond the precincts of Article 19, However the debate of Internet freedom, in the present age, is always intertwined with the technological impact which has redefined the inflow and out-flow of information as well as the speed and reach of such information on the NET. It is my opinion that technology should never affect the principle of law of the land even though there had been instances where technology was a head of LAW.

It is a well known fact that the Internet was not regulated in India for a long time. It is this peculiar circumstance that enabled the law makers and technologists to think about and reaching to a consensus and redefining the flow and dissemination of information within the parameters of law. These parameters were again the ingredients of Article 19, which took into its account security of the state, public order, friendly relations with foreign states, official secrets, decency and or morality and the sovereignty and security of India.

The history of internet freedom status in India according to Freedom House a US based non governmental organization founded in October 1941, that conducts research and advocacy on Human Rights, Political freedom and democratic issues around the world has rated India as partly free and placed India at 39 on a scale from 0(most free) – 100(least free). Essentially, certain forms of speech based on the content was considered offensive reprehensible and un-civilized and the fact that such sort of reprehensible and offensive speech could be dispersed instantaneously across the World Wide Web and its sometimes terrible consequences was a main imputes for the government to control and regulate such freedom of expression on NET. There were essentially 2 schools of thought that prevailed across the Globe, The First school argued that existing laws of country should be used to regulate the internet and thereby make the NET users responsible and the 2nd school vehemently argued that no law of any country should apply in cyber space. Many of the opponents of government regulations argued that there cannot be a control or enforcement of law by the use of technology since this would be in effective filtering systems. Invariably 2 schools of thought that existed on the freedom on the NET regulating speech and content on the NET is a national issue amongst the nations in the world. It is also a thought process that there has to be a global consensus on such enforcement or restrictions on account of the information architecture being global and border less. All the countries in the world are yet to create a general principle and get an international agreement on such principle with an intention of getting a global acceptance on the methods to regulate information on the NET.

Though till around 2000 there was only selective censorship of blogs and other content, the scene started changing drastically in 2008 when the Mumbai attacks were carried out. The need and desire to monitor, censor, and control communications going out of India, going within India or being received within India was sought to be controlled and government felt the need to monitor all such communications. By this time the Information Technology Act 2000 was passed by the parliament and was in place, the IT Act, 2000 was based on UNICITRAL model law which provided for equal treatment of users of electronic communication as well as paper based communication. The Information Technology Act, 2000 provided that electronic transactions could be legally recognized, electronic filing of documents by government were legally recognized, gave legal validity and recognition to digitally signed documents provided a supervisory regime to the certifying authorities issuing digital signatures and recognized as punishable certain offenses like hacking, tampering with computer source documents and amended Acts like INDIAN PENAL CODE, INDIAN EVIDENCE ACT, BANKERS BOOK EVIDENCE ACT, etc. The Information Technology (CERTIFYING AUTHORITIES) Rules, 2000, The Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000, The Cyber Regulations Appellate Tribunal (Procedure for Investigation Of misbehavior or Incapacity of Presiding Officer) Rules, 2003, The Information Technology (Other Powers Of Civil Court vested in Cyber Appellate Tribunal) Rules, 2003, The Information Technology (Other Standards) Rules, 2003, the Information Technology (Qualification and Experience of Adjudicating Officers and manner of holding Inquiry) Rules, 2003, The Cyber Regulations Appellate Tribunal ( Salary, Allowances and Other Terms and conditions of service of presiding Officer), Rules 2003, Information Technology ( Use of electronic records and digital signatures) Rules, 2004, The Information Technology (Security Procedure) Rules, 2004.

CURTAILING INTERNET FREEDOM:

  1. Any semblance of curtailing internet freedom under the 2000 Act for the first time was seen on 7th July 2003 when a Notification Bearing G.S.R 529(e) was published in the Gazette of India in the form of a Ministerial Order of Blocking of Websites. The Indian Computer Emergency Response Team was designated as a single authority for issuing of instructions to block websites relating to Pornography under section 67 and related issues under section 69. The Ministerial Order under clause V detailed out the procedure for submitting a complaint to CERT for the purpose of blocking a website. On 17th May 2010 both the notifications being G.S.R 181(E) dated 27th February 2003 and G.S.R 529 (E) dated 7th July 2003 were rescinded.
  2. The second instance of attempt curtail internet freedom or freedom of speech was when the draft of the National Encryption Policy which mandated that individuals are required to save their online and mobile data like WhatsApp messages, BBM messages and Google chats etc. for a period of 90 days and were to provided to law enforcement agencies in plain text. The introduction of the draft policy though was for seeking comments and suggestions on the public received a great amount of criticism from the general public and the draft policy was finally withdrawn in this week.

Though the government wanted to provide confidentiality of information in cyber space for individuals certain issues were raised with regard to category of users under clause V sub clause(5) as well as sub clause 7. It was felt that under this 2 clauses the content of the draft policy directly impacted the citizen as well as the direct impact on the use of WhatsApp, E-mail’s and other communication conveniences. The most controversial point was under sub clause 4 under clause V

“user shall reproduce the same Plain text and encrypted text pairs using the software/hardware used to produce the encrypted text from the given plain text. All information shall be stored by the concerned B/C (business/citizen) entity for 90 days from the date of transaction and made available to Law Enforcement Agencies as and when demanded in line with the provisions of the laws of the country.”

The other issue that was raised was under sub clause 6 which stated – the Government will designate appropriate agency for entering into such Agreements- which practically meant that every company has to enter into agreement with the government. It was also said that the entire policy would be redundant since the nuances of encryption knowledge lacked in the common man.

NET NEUTRALITY:

  1. It is another aspect of freedom of communication in digital era. NET NEUTRALITY can be defined as the free access that the internet users can have to connect to any other point in the network. In other words a netizen should be free to access all or any content equally regardless of the source and there shall not be a discrimination by the ISP against the netizen accessing specific sites. Thus the browser is not to be controlled by the ISP thereby restricting the right of the browser to communicate freely on the web. NET NEUTRALITY in a way is a principle of freedom of expression and speech on the NET that is available to the browser. NET NEUTRALITY enshrines the freedom of Expression which includes according to Article 19.2 of the United Nations International Covenants on Civil and Political Rights. The freedom and right to receive information and Freedom and Right to impart Information.
  2. Under NET NEUTRALITY what can be perceived as a restriction that is being imposed on the browser is any act by the ISP to restrict the browsers access to the particular site either by blocking the site or slowing down the access of the browser or give very limited access. This control on access can be termed as traffic management where the ISP’s look to become a gate keepers of the Internet and decide what a netizen can read and write or communicate with others.
  3. Across the world 3 main reasons have been attributed for NET NEUTRALITY not being respected:-
    1. Restriction to optimize profits- where there is an act by the ISP to slow down or block internet traffic for ISP’s own commercial benefit.
      Example: where a service provider imposes on its customers that they need to use chat service provided by the ISP or where the ISP blocks certain services that is given by certain programs.
    2. Restrictions of privileged censorship– where the usual blocking measures are misused to block content.
    3. Restriction for the purpose of complying with law- where the ISP complies with the directions of the government to restrict certain type of traffic to monitor and filter to enforce law.

IMPORTANCE OF HAVING NET NEUTRALITY:

1. NET NEUTRALITY is not only a right of freedom for the browser but it contributes for:-

  1. Non discrimination policy on the NET for the browser.
  2. Assurance of privacy for the browser.
  3. Adds to creativity of abundant information on the NET and access to such information.
  4. There can be free expression in that the netizen will have ability to publish content and express opinion online.
  5. NET NEUTRALITY is a great leveler since the right of free expression is not only to elite but also to a common man.
  6. Ensures access to content of the consumer’s choice thereby giving an impetus to online marketing.
  7. Improves quality and facilitates democracy since diverse ideas are expressed and heard.
  8. Greatest tool against censorship on the NET fosters healthy innovation and competition where every business entity gets an opportunity to showcase its products and services.
  9. Controlling not by the intermediaries but at the end to end points.

LIMITATION ON FREEDOM OF EXPRESSION IN CYBER SPACE:

Some of the factors that may be relevant for considering the question of reasonableness could include general scheme of the legislative plan, extent of the territory and the duration, need for necessary measure of social control, identifying the class of people or the segment of the society that is likely to be affected, circumstances under which such a restriction was sought to be imposed, the morality standards prevailing in a community, the social evil that is sought to be controlled or cured and finally the relevance of such prescription itself. The essence of article 19 can also be seen in section 144 of Cr.P.C gives vide powers to a district magistrate to impose restriction upon the fundamental right of freedom of speech and assembly. In the case of Babulal vs State of Maharashtra reported in AIR 1951 SC 884 and subsequently in the case of State of Bihar vs K.K Mishra reported in AIR 1971 SC 1667 such exercising of such right held constitution.

The Information Technology act has more specific provisions on the issue of freedom of expression in Cyber Space. Any semblance of such a restriction could be seen when 66A was introduced in the year 2009 as an amendment to the Indian IT Act. Section 66A with all its lacunae (Which was later pointed out by the Supreme Court) construed freedom of speech in social media as a criminal activity.

Though the scrapping of the section by the Supreme Court in its 122 Page Order was welcomed by the media and the public as an excellent judgement little did the public realize that there was very little power with the government with an act of real abuse of online freedom. The argument that there is enough provisions under existing law which can prevent a person from misusing freedom of speech may not stand since the IT Act is a special Act and it gave investigating authorities more powers then what the common law gave one argument that could be advanced in support of special law is that special laws are promulgated to speeden up the process and to reduce the burden on the civil courts.

While the Supreme Court struck down Section 66A it upheld Section 69A of the IT Act as constitutionally valid allowing the government to block the websites which the government deems as threat to public order and security of the country. The upholding of the Section 69A as valid is definitely short in the arm of the government. The government can still exercise some control on the Cyber Space and still have the freedom to regulate.

It can be summarized that any semblance of control or limitation on freedom of expression in Cyber Space can only be seen under Section 69A and the rules under Information Technology (Procedures and Safe Guards for blocking for Access of information by public) Rules, 2009.

INTERMEDIARIES IN CYBER SPACE:

1. The Information Technology Act defines Intermediary under Section 2 (1) (w) as “ intermediary with respect to any particular electronic records, means any person to on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, Network service providers, ISP’s, Web Hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes”.

2. One of the corner stones of freedom of speech in digital age is the concept of intermediaries liability. For the present let me confine the word liability in relation only for illegality of the content. The wisdom of law in giving immunity to intermediaries against liability is only for the effective implementation of right to freedom. It is presumed that if such immunity is not granted the very survival of intermediaries would be at stay.

Section 79 of the IT Act talks of exemption to the intermediary and such exemptions are not blanket but only under certain circumstances. These circumstances that are mentioned in Section 79 (2) (a)- (c) can be deemed as effective interpretation of when the freedom of speech and expression be allowed. Such immunity has been considered as a license to the intermediary to host more content and thereby promote more freedom of speech. The immunity is also given on the predicament that the person responsible for creating the unlawful content or the prohibited content should be solely held responsible and not the intermediary who does not have control on the aspect.

3. In pursuance of the powers under section 87 of the IT Act the central government under section 2(zg) provided for the Information Technology Intermediary Guidelines Rules, 2011 vide G.S.R 314 (E) dated April 11th 2011 laying down the Guidelines for administration of content as well as taking down of offensive content within 36 hours. The concept of notice and take down of offensive content has been borrowed from US law and such provision is prevalent in any foreign jurisdictions. The immunity under section 79 also arises out of the fact when the intermediary can prove that he had exercised due diligence while discharging his duties under the act. The exercise of the due diligence by the intermediary is the option of exercising his discretion in having to determine whether the posted content is objectionable, violative, or blasphemous.

4. It is very clear from the provision of the law as well as the Rules that the freedom of Expression that has been exercised upon the Intermediaries is well within the precincts of Article 19.1(g). Though there has been a hue an cry raised with regard to the rationality of 36 hours time limit under Rule 3(4). This does not hamper the letter and spirit under article 19.1(g) but on the other hand can safely be interpreted as a reasonable restraint imposed on the intermediary.

CONCLUSION:

In this paper I have made an effort to discuss the various issues relating to freedom of expression in digital era.It is my opinion that freedom of expression cannot be absolute and there has to be a monitoring and control of the same. Lets not forget that this digital era has also seen the rise of international terrorism and Internet does not differentiate between a terrorist and a law abiding citizen when it comes to its use. There has been history of terrorists using the internet to their greater advantage by passing on or sharing information pertaining to a prospective offense or activity by using technologies like steganography or even simple secretive techniques like dead letter mailbox or spear phishingapart from using the contemporary communication emails. There had been divergent views between the Ministry of External Affairs, Department of the Communication, Department of Electronics and Information and Technology on the issue of Internet Governance more specifically taking into consideration the National security. India has an elaborate National Cyber Security policy and to implement such cyber Security measures institutes like National Critical Information Infrastructure Protection Centre (NCIIP) and the Computer Emergency Response Team (CERT) has been brought inline with the evolving Cyber Threats. There is always a danger that the policy framework of the Cyber Security must respond to multiple challenges and threats.

No country would allow its security to be compromised and an atmosphere of insecurity be created in the country.Like other governments in the world the Indian government also holds the significant and disproportionate power to block contents. The intention to hold such a significant, and a un-fettered power is seen in promulgation of section 69A which grants power to the central government to issue directions to block public access. To block public access to any information in the interest of Sovereignty and Integrity of India, Defense of India, Security of the State, friendly relations with foreign states or public order. This concerns over the security has made India take decisions for control of the internet governance though such controls have been subject to test by the courts.