Social media offers huge opportunities for freedom of expression. Individuals are able to see their thoughts traverse the globe in an instant; news – and its interpretation – is not automatically dependent on the filtering process of the media, or of government. The freedom of expression on Internet is a crucial challenge to address in formulating inclusive information society.
Yesterday, the Supreme Court said that no person should be arrested for posting objectionable comments on social networking sites without taking prior permission from senior police officials.
The apex court, which refused to pass an order for a blanket ban on the arrest of a person for making objectionable comments on websites, said state governments should ensure strict compliance of the Centre’s January 9 advisory which said that a person should not be arrested without taking permission from senior police officials.
“We direct the state governments to ensure compliance with the guidelines (issued by Centre) before making any arrest,” a bench of justices B S Chauhan and Dipak Misra said.
Constitutional validity of section 66A of IT Act
It said the court cannot pass an order for banning all arrest in such cases as operation of section 66A (pertaining to objectionable comments) of the Information Technology Act has not been stayed by the apex court which is examining its constitutional validity.
The advisory issued by the Centre says that, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of inspector general of police (IGP) in metropolitan cities or of an officer not below the rank of deputy commissioner of police (DCP) or superintendent of police (SP) at district level, as the case may be.”
In fact, section 66A of IT Act is a potential tool in the hands of rulers to curtail the voice of opposition. It is fatal for the freedom of speech of netizens in general and the press in particular.
The Indian Penal Code and other provisions of the IT Act, especially after the 2008 amendment, provide enough safeguards against defamation, intentional insult leading to breaking the peace, incitement to commit offence, etc. Political criticism always causes some annoyance to someone. Ruling party and Opposition members routinely say unflattering things about each other. Should they be charge sheeted, too? The basic idea behind freedom of speech is to allow divergent critical views without looking into whether people are annoyed or inconvenienced.
The petition was also filed regarding the arrest of a Hyderabad-based woman activist, who was sent to jail over her Facebook post in which certain “objectionable” comments were made against Tamil Nadu Governor K Rosaiah and Congress MLA Amanchi Krishna Mohan. After filing of the petition, she was released by a district court at Hyderabad.
Jaya Vindhayal, the state general secretary of People’s Union for Civil Liberties (PUCL), was arrested on May 12 under section 66A of the IT Act for the “objectionable” post.
According to the police, she had also allegedly distributed pamphlets making objectionable allegations against Rosaiah and Mohan before posting the comments online.
The matter was mentioned before the bench by law student Shreya Singhal, seeking an urgent hearing in the case, saying the police is taking action in such matters even though a PIL challenging validity of section 66A is pending before the apex court.
She had filed the PIL after two girls – Shaheen Dhada and Rinu Shrinivasan – were arrested in Palghar in Thane district under section 66A of IT Act after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it.
On November 30, 2012, the apex court had sought response from the Centre on the amendment and misuse of section 66A of IT Act and had also directed the Maharashtra government to explain the circumstances under which the 21-year-old girls were arrested.
Pursuant to the notice issued by the apex court, the Centre had informed it that the controversial provision in the cyber law under which two girls were arrested for Facebook comments did not curb freedom of speech and alleged “high handedness” of certain authorities did not mean that it was bad in law.
Rights vs. Responsibilities
There is also a trend visible that business interest are increasingly protected for the reason of copyright by developed countries, with freedom of expression and free flow of information sacrificed.
Freedom of expression needs to be promoted with legitimate limitations and in balance with other digital rights within an expanded legal and regulatory framework. There are challenges to deal with liability of intermediaries and governmental surveillance which might undermine freedom of expression.
The ubiquity of the technology goes hand-in-hand with the ubiquity of social media. But with rights come responsibilities. Unchecked, social media can also allow disinformation, slander, racism, incitement to hatred, victimisation and a catalogue of ills, some – obviously – more serious than others.
If something incites violence or racism, then it should be prosecuted, regardless of whether it is said in front of physical people or their virtual avatars. But drawing this line is no easy matter.