Authored By: Preet Samaiya, B.A. LL.B (Honours), Christ (Deemed to be University) Central Campus, Bangalore, Karnataka, & Co-Authored By: Gori Singh, B.A. LL.B (Honours), Christ (Deemed to be University) Central Campus, Bangalore, Karnataka
Introduction:
In the era of digital communication, social media platforms have become a pivotal medium for expressing thoughts, ideas, and opinions, significantly impacting the landscape of freedom of speech. Social media platforms have transformed how we communicate with one another.[1] What do Social media platforms teach us about the nature of freedom of speech? How should our theories of freedom of speech and expression change when considering these technologies? They foster political and public discourse and civic engagement in the United States and worldwide.[2] Social media platforms give marginalized individuals and groups a voice, allowing them to organize, offer support, and hold influential people accountable.
Moreover, they make it possible for people who might have yet to link otherwise to interact and build communities with people with common interests. Simultaneously, social media platforms foster the spread of harmful speech, including abusive rhetoric, deliberately incorrect material, outlandish conspiracy theories, and foreign propaganda because of their directness, immediacy, and lack of a filter. This explosion of online communication has created a vibrant public square, yet one riddled with potential pitfalls. However, with this fast-moving world of technology, multiple platforms have emerged to express personal opinions, including social media. This tangled web raises complex legal and ethical questions: How do we ensure a free and open exchange of ideas while protecting individuals from online harm?
Its core lies the fundamental right to freedom of speech, a cornerstone of democratic societies that empowers individuals to voice their opinions publicly. As the Supreme Court of India observed in the Union of India v. Association for democratic reforms[3] “Sided information, disinformation, misinformation, and non-information all create an uninformed citizenry, making democracy a farce. Freedom of speech and expression includes the right to impart and receive information, which includes freedom to hold opinions.”
However, this digital transformation also challenges, particularly in freedom of speech. As George Orwell[4] aptly noted, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” This essay will examine the legal framework that supports freedom of speech, the challenges social media poses, and the legal responses to these challenges. Through this exploration, we aim to shed light on the legal implications of freedom of speech on social media, highlighting the importance of balancing the right to express oneself with the need to protect individuals and society from harm.
Navigating complexities of social media and freedom of speech:
Humans, as social animals, have always needed to communicate. The need to speak, express, seek information, share it with others, create ideas, and engage in debate is inherent in the fundamental right to free speech and expression. However, expression and speech may only sometimes result in accurate information. Throughout history, the exchange of information has undergone a continuous transformation. From cave paintings to the printing press, humanity has developed new methods for sharing ideas and knowledge. The telephone and mass media like newspapers and books further revolutionized communication, allowing information to be disseminated faster and broader. Social media is the latest chapter in this ongoing evolution, fundamentally altering how we connect and share information. The Black’s Law Dictionary[5] defines ‘Social media’ as any cell phone or internet-based tools and applications used to share and distribute information, such as on sites like Facebook, Twitter, YouTube, and blogs. Social media presents a fascinating duality, acting as a tool for connection and a potential source of concern.
Social media acts as a tool for connection. It fosters stronger relationships by allowing us to stay in touch with loved ones across vast distances, reconnect with old friends, and build new communities with shared interests. In a crisis like this, where the arena is at the center of a pandemic, social media has helped us substantially interact with our households who stay at the alternative end. We should not just interact with distant family and friends but keep ourselves updated on this outrageous pandemic.[6] Furthermore, social media empowers individuals by providing a platform for self-expression and sharing ideas. On social media, one hears and skims people’s thoughts and replies to those thoughts.[7] Social media is an indispensable part of our daily lives, as you will notice a few days where you do not open your social media to get the latest update on the trends/trends going around the arena. These trending hashtags are used to make a difference in the whole world. The arena, which includes the MeToo movement, which positioned more excellent highlights to the existence of women who have been sexually abused both via way of means of their colleagues or a person from their circle of relatives, or the hashtag Black-lives-matter, which emphasizes the importance of us all being equal, no matter how we look, the way we dress or the beliefs we share.[8] These existence-hanging hashtags shook the internet world upside down and took a natural alternative inside the society we live in today.[9]
Social media is not simply great for interaction; however, it is an enormous market. There is also a distraction to this interaction and a potential source of concern. While social media offers undeniable advantages in fostering connection and empowering self-expression, it also presents a significant set of concerns that can threaten our privacy, affect freedom of speech and expression, fuel negativity, create misinformation, and distort reality. One primary concern lies in the area of privacy. Social media platforms often collect vast amounts of user data, which can be used for targeted advertising or even sold to third parties. This raises concerns about the potential misuse and exploitation of personal information, such as in the Court’s concerns in K.S. Puttaswamy v Union of India.[10] the loss of privacy of state and non-state actors reflects the modern reality of living in the age of big data, data analytics, and the ‘Internet of Things.’ This case talks about privacy as a fundamental right, and sometimes it is infringed upon by social media. The ease with which information spreads on social media also presents challenges like misinformation and fake news, which can travel at lightning speed and are often disguised as legitimate content. The example can be drawn from the COVID-19 period when misinformation regarding vaccines caused autism or other significant consequences. Studies conducted by scientists and public health groups have frequently refuted this fallacy. However, its dissemination on social media has resulted in vaccine reluctance and lower vaccination rates, impeding efforts to combat the pandemic. There are more concerns, including anonymity offered by online platforms, which can embolden some to engage in cyberbullying and harassment, creating hostile environments that stifle constructive dialogue. Concerns about online harassment and the possibility of material removal can have a chilling impact on the freedom of speech. Users may be cautious about sharing opposing viewpoints for fear of being isolated or having their accounts suspended. This stifles open debate and prevents the free exchange of ideas. The ease of sharing information on social media can also blur the distinction between free speech and harmful content. While free speech is essential to a functioning democracy, it excludes hate speech, incitement to violence, and the propagation of disinformation. Social media platforms are constantly challenged to balance the right to free expression with the requirement to maintain a safe and inclusive online environment.
Indian legal framework of freedom of speech in social media:
The legal framework surrounding freedom of speech is complex and varies across jurisdictions. International human rights law, codified in instruments like the Universal Declaration of Human Rights, recognizes the right to freedom of opinion and expression. However, this right is not absolute and can be restricted to protect the rights of others or national security.
The constitution of India, Freedom of Speech and Expression, mentioned under Article 19(1)(a), states that “this freedom allows every citizen to express their thoughts and ideas through any communicable medium. It includes the right to voice one’s opinion, to publish their ideas in print or online, and to broadcast them on radio, television, or any digital platform. However, this freedom is not absolute and is subject to reasonable restrictions on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency, morality, contempt of Court, defamation, or incitement to an offense.”[11]
In India, more than 20 billion people use WhatsApp, and even more people use Facebook. Thus allowing fake information rumors to unfold quickly. Social Media is widespread and readily available to everyone. It risks the chances of someone using the technology as there are no strict laws for the offenders in India yet.
Taking Sharma D., Kishore J., Sharma N., Duggal M.[12] A case study was conducted to see how people misuse their right to free speech and expression on social media platforms. According to a survey of 174 middle school students in Delhi, 8% of the participants engaged in cyberbullying, and 17% said they had been the victims of such behavior. We must comprehend how various forms of bullying are intertwined with safe digital usage. How can we discuss cyberbullying and harassment without bringing up the “Boys Locker Room” case? A fifteen-year-old boy and ten other guys who belonged to the “Bois Locker Room,” where the young males exchanged vulgar messages, altered images of young girls, made offensive remarks, and discussed plans to “gang-rape” them.
It is deeply concerning that young people are using social media to bully and harass others. These acts, disguised as jokes, violate fundamental rights and create a hostile environment for everyone. Our youth is the future, and their actions online can have a ripple effect. Cyberbullying not only hurts the target but also sets a bad example for others. Instead of hiding behind the label of ‘free speech,’ we must recognize these actions as harmful. Social media is a powerful tool that should be used to connect and uplift, not to spread negativity and crime. Stringent rules are required to stop criminal activity on these social media platforms. The Indian government has established new guidelines and standards for social media platforms such as digital media and OTT players. Internet platform misuse and use will become commonplace under the government’s rule.
In India, the total WhatsApp users are 53 crores, the total YouTube users are 44.8 crores, the total Facebook users are 41 crores, the total Instagram users are 21 crores, and the total Twitter users are 1.75 crores in India, as Ravi Shankar Prasad, Electronics and I.T. Minister of India. Indian users are using these platforms and doing good business.[13] However, concerns have been raised over the years about rampant abuse of social media platforms.
To regulate all these criminal activities, the government has made a new Information Technology Act, 2000, which includes Section 66(a): According to this section, if any person sends a message by any means of communication device, any information that is offensive and is specially created to annoy or spread hatred, criminal intimidation shall be punished with imprisonment, which may extend to a term of three years and fine.[14] Section 69 (a): This section says that the government has the right to ban or stop public access to any information inconsistent with the government’s provisions, and this section also provides the procedure for blocking public access to specific information.[15] Those who do not comply with this provision will be imprisoned for a term extending to seven years and shall be liable to pay a fine.
In the Landmark Judgement of Shreya Singhal v. Union of India[16], Sections 66(a) and 69(a) of the Information Technology Act were challenged in this case because they violated Article 19(1)(a)[17] and Article 14[18] Of the Indian Constitution. The Court stated that there is no Intelligible Differentia, which means a difference that can be understood. There is no distinction between other methods of information transmission and the Internet. In this landmark decision, the Supreme Court ruled that Section 66(a) of the I.T. Act should be repealed because it violated the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and was not protected by Article 19(2)[19], which imposes reasonable restrictions. Sc claims that section 66(a) is open-ended, ambiguous, and constitutionally vague due to the terms employed in the Act.
Apart from the constitutional right as envisaged under Article 19(1)(a) of the Constitution of India on freedom of speech and expression (to read with Article 19(2) on reasonable restrictions), other statutes deal with this right to freedom of speech. The First Amendment is the primary legal shield for freedom of speech in the United States. The Supreme Court has interpreted the First Amendment to protect political, commercial, and even offensive speech. However, there are exceptions. Speech that incites violence or imminent lawless action, as well as obscenity and defamation, are not protected. The European Convention on Human Rights, which many European nations adhere to, also protects freedom of expression. However, similar to the U.S. framework, it allows for restrictions on hate speech and harmful content that incites violence or discrimination.
The application of these legal frameworks to social media platforms poses significant challenges. While the First Amendment does not bind platforms, they often act as de facto public squares, raising questions about their role in curating content. Additionally, the global reach of social media platforms makes it challenging to apply national or regional legal frameworks to the content they host.
Regulating social media concerns for safeguarding freedom of speech:
Social media has emerged as a powerful platform for democratic discourse and individual expression in India. However, its unregulated nature has given rise to several challenges threatening free speech, a fundamental right enshrined in Article 19(1)(a) of the Indian Constitution. The spread of misinformation, online harassment, and the formation of echo chambers are significant issues that must be addressed. The government’s intervention must address these challenges without compromising the delicate balance between free speech and regulation.
A multi-pronged approach is required to tackle the rampant spread of misinformation and fake news. The government’s fact-checking initiative, the Press Information Bureau Fact Check Unit, is a promising model. The objective of the Fact Check Unit is to act as a deterrent to creators and disseminators of fake news and misinformation and to provide people with an easy avenue to report suspicious and questionable information about the Government of India for fact-checking.[20] However, mandating collaboration between social media platforms and established Indian fact-checking organizations can significantly enhance its reach and effectiveness. It is crucial to ensure that fact-checking empowers users to make informed decisions without stifling legitimate debate, as the function of free speech is to stimulate public conversation, not suppress it.
Another critical area for potential regulation concerns online harassment and hate speech. While robust free speech protections are essential, the line must be drawn when online discourse incites violence or targets individuals with hateful abuse. The U.K.’s Online Safety Bill, [21] Currently under consideration proposes holding platforms accountable for failing to address harmful content, including “content that may not be illegal but is harmful because it is likely to cause significant emotional distress.” While concerns have been raised about potential overreach, the bill highlights the need for a framework that protects free speech while ensuring a safe online environment.
The challenges posed by social media to free speech necessitate a multifaceted approach. Regulations can promote responsible platform behavior, encouraging fact-checking and establishing clear lines between free expression and online harassment. However, these regulations must be crafted with a keen eye toward preserving the core values of a free and open society. Navigating the regulatory landscape is a delicate dance. Vague or overly restrictive regulations could stifle legitimate dissent and create a chilling effect on free expression. Transparency is key. Platforms should be required to make their content moderation policies and enforcement procedures clear and accessible to users. This transparency would allow users to understand why content is removed and hold platforms accountable for potential biases.
Conclusion:
Freedom of speech is the cornerstone of a vibrant democracy, allowing for open discourse, dissent, and the free exchange of ideas. Social media’s rise has empowered individuals and presented significant challenges to this fundamental right. Balancing free expression with the need to curb hate speech, misinformation, and online threats requires constant vigilance and legal innovation.
India can create a more balanced online ecosystem by adopting more explicit legal definitions, promoting transparency in content moderation, and fostering media literacy skills. The ongoing legal debates surrounding freedom of speech on social media are far from settled. However, by recognizing the importance of this right and working towards collaborative solutions, India can ensure a healthier and more democratic digital space for its citizens.
In conclusion, social media has revolutionized how we communicate and share information, presenting opportunities and challenges to the fundamental right of freedom of speech. While social media platforms have enabled marginalized groups to have a voice and facilitated public discourse, they also have the potential to spread harmful speech and misinformation. It is necessary to balance protecting individuals from harm and safeguarding the right to express oneself. As the legal framework around freedom of speech continues to evolve, it is essential to navigate the complexities of social media and ensure a free and open exchange of ideas while upholding individual rights and societal values.
References:
- Nandan Saxena, Freedom of Press and Right to Information, New Delhi, 2013.
- Raymond Wacks, Privacy and Media Freedom, United Kingdom, 2013.
- Kundra S, Media Laws and Indian Constitution, New Delhi, 2005.
- Andrew T Kenyon and Andrew Scott, Positive Free Speech, Great Britain, 2020
- Frank Fagan, Systemic Social Media Regulation, 16 DUKE L. & TECH. REV. 393 (2017-2018). https://heinonline-org-christuniversity.knimbus.comHOL/License
- Shifa Chouhan & Khan Nuruddin, The Impact of Social Media and Freedom of Speech in
- In the Content of Regulatory Law, India, 5 INT’l J.L. MGMT. & HUMAN. 94 (2022). https://heinonline-org-christuniversity.knimbus.comHOL/License
- Meera Mathew, Freedom of Information, Right to Express and Social Media in India, 2020. https://heinonline-org-christuniversity.knimbus.comHOL/License
[1] Lee C. Bollinger & Geoffrey R. Stone, Social Media, Freedom of Speech and Future of Our Democracy; 101–102(2d ed. 2022).
[2]Lee C. Bollinger & Geoffrey R. Stone, Social Media, Freedom of Speech and Future of Our Democracy; 101–102(2d ed. 2022).
[3]Union of India v. Association for Democratic Reforms(2002) AIR 2002 SC 2112
[4] Eli Bernstein, When is free Speech free?, INSTITUTE OF PUBLIC AFFAIRS, (August 01, 2015), https://ipa.org.au/ipa-review-articles/when-is-free-speech-free.
[5] Brian A. Garner, Black’s Law Dictionary. St. Paul, MN: Thomson Reuters, 2014
[6] Shifa Chouhan And Khan Nuruddin, The Impact Of Social Media and Freedom of Speech in India, in the Content of Regulatory Law, International Journal of Law Management and Humanities, Vol.5 Iss 2, 96.
[7] Supra note 6
[8] Shifa Chouhan And Khan Nuruddin, The Impact Of Social Media and Freedom of Speech in India, in the Content of Regulatory Law, International Journal of Law Management and Humanities, Vol.5 Iss 2, 98.
[9] Dhruv Manchanda, ” The Information Technology (Intermediary et al. Ethics Code) Rules, 2021,” The Monday, April 29, 2021.
[10] K.S. Puttaswamy V Union of India AIR 2017SC 4161.
[11] Constitution of India; art. 19, cl. 1.
[12] Drishti Sharma, Jugal Kishore, Nandini Sharma, Mona Duggal, Aggression in schools: Cyberbullying and gender issues, Asian Journal of Psychiatry, Volume 29 ISSN 1876-2018, Pages 142-145.
[13] Shifa Chouhan And Khan Nuruddin, The Impact Of Social Media and Freedom of Speech in India, in the Content of Regulatory Law, International Journal of Law Management and Humanities, Vol.5 Iss 2, 94
[14] Information Technology Act, 2000, no. 21, Acts of (Section 66 (a))
[15] Information Technology Act, 2000, no. 21, Acts of (Section 69 (a))
[16] Shreya Singhal V. Union of India AIR 2015 SC 1523
[17] Constitution of India; art. 19, cl. 1 (a).
[18] Constitution of India; art. 14.
[19] Constitution of India; art. 19, cl. 2.
[20]Fact Check Unit, Press Information Bureau Government of India 2019, Press Information Bureau (pib.gov.in)
[21] Emily Haves, Online Safety Bill HL Bill 87 of 2022-23, HOUSE OF LORDS,(January 23, 2023), https://researchbriefings.files.parliament.uk/documents/LLN-2023-0005/LLN-2023-0005.pdf
Cite this article as:
Preet Samiya & Gori Singh, “The Tangled Web: Freedom of Speech and Social Media in a Legal Landscape”, Vol.5 & Issue 5, Law Audience Journal (e-ISSN: 2581-6705), Pages 324 to 337 (20th April 2024), available at https://www.lawaudience.com/the-tangled-web-freedom-of-speech-and-social-media-in-a-legal-landscape.