India is one of such paradises on earth where you can speak your heart out without the fear of someone gunning you down for that, or, it has been until now. Even if the situation of Indians is a lot better than that of their fellow citizens of other nations, the picture is not really soothing or mesmerizing for Indians any more. This observation is being made with regard to the exercise of the right of freedom of speech and expression in the context of social media and the hurdles placed on that by the arbitrary use of the so-called cyber laws of the nation.

The Kerala government withdrew its controversial ordinance allowing police to arrest individuals for social media posts just two days after it had been introduced. It had introduced Section 118A in the Kerala Police Act, to penalise ‘offensive,’ ‘abusive,’ and ‘threatening’ social media posts. The amendment had triggered off a public outcry leading to its hasty withdrawal.

Before delving into the issue in details, we should first understand the case of Kerala and its relation with the erstwhile Section 66A of the IT Act.

What was Kerala’s Law?

Section 118A criminalized the communication of abusive, defamatory and intimidating speech.
It says that any expression, publication or dissemination of threatening, abusive, defamatory or humiliating content made through any mode of communication punishable if the person does it knowing it to be false and damaging to reputation or mind of another person.
A person, if convicted for the offence, could be punished with imprisonment of upto 3 years or fine of Rs. 10,000 or both.
This is not just for writing or creating such a post, but those who share that post or opinion will also face the same kind of punishment.

Ambiguity over the Law

The terms like “threatening, abusing, humiliating or defaming” were not defined in Section 118A of the Kerala Police Act.
The outlawed sections spoke of vague notions like ‘annoyance’ and ‘inconvenience’, which are not defined in law anywhere.
But Section 2 of the same Act states that the words and expressions not defined under the said law shall have the meanings as defined in the Indian Penal Code (IPC) or Code of Criminal Procedure (CrPC).
Out of four actions criminalized under the latest amendment by Kerala, only defamation is clearly defined in the IPC.

Section 66A in a new bottle

Section 66A of the IT Act dealt with information related crimes in which sending information, by means of a computer resource or a communication device, which is inter alia offensive, derogatory and menacing is made a punishable offence.

The entire provision was struck down by the Supreme Court in the Shreya Singhal judgement.

In judgement, the Court had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution.
It lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”.
These did not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.

In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as:

The need to obtain the concurrence of the Centre before action can be taken.
Police authorities could proceed autonomously, literally on the whim of their political masters.

Criticisms of the Keralan law

It needs no explanation that the law had the potential for great abuse against lay people and the media alike. It gives enormous, unbridled powers to the police. Anybody could be accused of humiliating someone and prosecuted.

Terming the law draconian, experts has said that the new law was another affront on free speech and its wide and vague ambit left it vulnerable to rampant misuse.
The law was no way related to women’s safety or anything that the government had earlier said.
The law would have been misused by people who may want to sue over the smallest disagreements and by those who are already misusing defamation laws.
Its misuse would not have been restricted to political criticism or religious opinion formation but “all ‘likes’, blogs, ‘unfriending’ now will be settled at police stations,” he says.
It mentioned “class of persons” in the law which could even mean deities, any group, organisation, brand or company.
It will effectively be a DDOS attack (denial-of-service attack) on the police functioning on the state, as well as on the police. There will be a huge rush of FIRs filed against all kind of issues between people.
Another aspect of worry was that it gave power to the police to file suo-motu cases against anyone.

Bigger Picture: Freedom of Speech on Social Media

The Internet and Social Media has become a vital communications tool through which individuals can exercise their right to freedom of expression and exchange information and ideas.
In the past year or so, a growing movement of people around the world has been witnessed who are advocating for change, justice, equality, accountability of the powerful and respect for human rights.
In such movements, the Internet and Social Media has often played a key role by enabling people to connect and exchange information instantly and by creating a sense of solidarity.
And in the light of the growing use of the internet and social media as a medium of exercising this right, access to this medium has also been recognized as a fundamental human right.

Hate Mongering: A new cool

Social media today is a hotbed of toxic and hateful conversations. Curbing hate speech and fake news has emerged as a critical challenge for governments globally.

Unregulated social media promotes misinformation, hate speech, defamation, and threats to public order, terrorist incitement, bullying, and anti-national activities.
Abusive posts do promote violence against or threaten people based on their race, national origin, sexual orientation, gender and religious affiliation.
On grim situations, they include death threats and rape threats to women.
Also, the fake news panacea is not a new phenomenon linked to the rise of social media. Fake news has even lead to lynchings.

Why controlling social media expressions is a difficult task?

It is undeniable that the consequences of the narrative that takes shape on online platforms, more often than not, have real life implications.

The number of users on social media is ever-increasing and the volume of traffic is too huge to monitor.
The social media platforms are least bothered about public normalcy and social order.
They even with public policy departments seem to neglect their role in curbing hate- content and misinformation.
If over-regulated, the platforms would become ripe for the state’s control over the public perception through state-promoted posts.

Limited cyber safeguards

There is no specific legislation in India which deals with social media except The Information Technology Act, 2000.
There are several provisions in it which can be used to seek redress in case of violation of any rights in the cyberspace, internet and social media.

Other provisions are:

Some of the safeguards include Section 67 IT Act (punishment for publishing or transmitting obscene material in electronic form); Section 506 IPC (punishment for criminal intimidation); Section 509 IPC (word, gesture or act intended to insult the modesty of a woman); Section 500 IPC (punishment for defamation).

Way forward

The regulations to deal with such issues in India are insufficient and are also scattered across multiple acts and rules under the IPC, the IT Act and CrPC.
The need is to harmonize and unify the existing laws.
Moreover, there is a need to amend the draft intermediary guidelines rules to tackle modern forms of hate content that proliferate on the Internet.
Therefore, it is imperative for the government to recognize the menace of hate speech and ensure that there is proper regulation in place to tackle the issue.

Keeping all this in mind, the Government should consult technical experts to look into all the possible facets of the use and misuse of social media and recommend a suitable manner in which it can be regulated without hindering the civil rights of citizens.

Conclusion

There is no doubt that we require some legal provisions to protect persons from cyber bullying. But the amendment brought in by Kerala provided ample scope for gross misuse.

It is clearly evident that social media is a very powerful means of exercising one’s freedom of speech and expression.
However, it is also been increasingly used for illegal acts which has given force to the Governments attempts at censoring social media.
Where on the one hand, the misuse of social media entails the need for legal censorship, on the other hand, there are legitimate fears of violation of civil rights of people.
What is therefore desirable is regulation of social media, not its censorship.