Right of freedom of expression during covid-19 in India

Author: Javeria Fatima, Faculty of Law, Jamia Millia Islamia, New Delhi

`“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington

The Right of freedom of expression guaranteed under Article 19(1)(a)[1] is an extremely cherished right bestowed to us by our constitution and has been coddled by the Constitution as well as the Judiciary whenever it is threatened. The liberty of free expression is the palladium of all rights, be it civil, political, or social. It is extremely crucial for a democratic country like ours, to set a bridge between the Government and the people.

Since the advent of Covid-19, Governments all over the world have censored free speech and expression of people in various forms and extents, and have tried to justify it with the threat of Covid-19. India is no exception to this. Recently, the U.P. Police had lodged several FIRs against individuals allegedly spreading fake news in the garb of Covid-19[2]. It threatened to take strict action against those making false alarms in hospitals for oxygen. Not much later, the Delhi police lodged as many as 25 FIRs under Section 188 of IPC[3], Section 3[4] of Delhi Prevention of Property Act, 2007[5], among other sections for pasting posters on electic polls and walls on streets criticizing the Government’s Vaccine diplomacy when there was an acute shortage of vaccines for Indians and Government was running programme like ‘Vaccine Maitri’.[6]

The Commonwealth Human Rights Initiative has called for the withdrawal of cases of sedition against journalists and freelancers, who share valuable information in such dire times taking a toll on their lives. Further, they condemned the colonial-era sedition laws which were ironically used by the Britishers to suppress the dissent of Indians against the British regime.[7]

New IT Rules: A potential threat to Users and Service Providers?

The joint statement of Government in G7 Summit that attempts to reaffirm and bolster the values of “freedom of expression, both online and offline, as a freedom that safeguards democracy and helps people live free from fear and oppression”.relating to the politically motivated internet shutdowns[8] and suppression of freedom of expression fails to cut right through the irony of the new IT rules introduced recently that seemingly attempt to control every aspect of freedom of speech and expression of the people of India. The new rules seem to attempt to amend the original Information Technology Act, 2000[9] that, through its Section 79[10] protects the social media intermediaries by providing a “safe harbour” which exempts them from any liability occurring by unlawful acts ( for instance, pornography, obscene pictures impersonation and so)  of the users.

The new rules rolled out this year, have a provision that seeks to punish any social media intermediary if it does not comply with the government’s order to share user data supposedly asked in respect of public good.[11]

How these rules are contrary to various jurisprudential stances, is a subject to scrutinize. Initially, the IT Act, 2001, provided minimum if none, protection to the social media intermediaries as it required them to prove that any content circulated or shared on or through their platform, was in contravention to their policy and occurred without their knowledge or occurred even after their due diligence to prevent such happening of offense or contravention. In the case of Avnish Bajaj vs. State[12], the court iterated the need to widen the scope of protection given to the intermediaries providing services through social media platforms. Thereafter, the Information Technology(Amendment) Act, 2008[13] was introduced that imparted a “safe harbour” position to intermediaries by the virtue of which they were exempted from “any unlawful acts” carried out by individuals using the services, such as leaking sensitive information, pornography, nudity and the likes punishable under section 292[14] of Indian Penal Code. Section 79[15] was added to IT Act, 2000.

This was a safe position for intermediaries and in the preceding years, many have been providing end-to-end encryption to their users. This feature left users with a great extent of privacy on their part.

In 2011, IT Rules were floated which subjected intermediaries to certain rules so as to claim “safe harbour” protection. The rules primarily included publishing rules and regulations for users, privacy policy, terms of usage for users[16].

However, these intermediary guidelines were reprobated on account of being vague regarding “prohibited content”. Moreover, anyone could ask the intermediaries to take down unlawful content. These issues were addressed in Shreya Singhal vs. Union of India[17], the court recognized people’s right to free speech and expression and held that the provisions of section 79(3)(b) of the IT Act must align with Article19(2)[18] of the Constitution and not beyond its scope. The Court also observed that “it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”[19]

In My Space Inc. v. Super Cassettes Ind. Ltd[20],  court observed that it would create a chilling effect on free speech if intermediaries were to expect identification of every illegal content and would certainly lead to a kind of private censorship on users.In Kent Ro Systems Ltd &Anr vs Amit Kotak &Ors.[21]The court opined that it would be an arbitrary and unreasonable interference with the right to carry out the intermediary’s business if he is obliged to screen every content, in the particular case, every infringing content. He is obliged to remove any infringing content and not to detect every.

Therefore, it can be grasped easily that up until now Unless intermediaries have the correct information and if the proper order is given by the appropriate authority, intermediaries cannot be held accountable. Moreover, the information provided to the intermediaries must be specific and not too broad. But, the introduction of new rules, which are currently under review by a review committee, has created a chilling effect in the netizens’ and intermediaries’ minds. Rule 4(2) requires the intermediary to save a copy of user’s data, determine the first originator of content and share with the Government whenever it requires supposedly in defense of “public order”, which is vague enough to be misused.[22]

Detention of Journalism

Many journalists have been attacked and even killed during the ongoing Covid-19 period.[23] Aside from cases under various sections of the Indian Penal Code (IPC), ‘terror’-related charges and sedition have become increasingly common against journalists. Due to the pandemic lockdown in 2020, section 144 of the Criminal Procedure Code (CrPC) was applied to journalists as well, in increasing numbers, along with the provisional orders of the Disaster Management Act 2005 and the Epidemic Diseases Act,1897.[24] Numerous suits of defamation have been filed against many journalists for reporting on sensitive issues and dragged out proceedings in courts have rendered them a delayed justice. In Siddhartha Varadarajan case, Sections 66D & 67 of Information Technology Act 2000, Sections 188 & 505(2) of IPC among others were snapped on him for a tweet that was allegedly defamatory as regards Uttar Pradesh’s C.M.[25] He was later granted anticipatory bail. Another case was also filed against him in relating to a tweet made on the covid death.[26]

India has ranked 142  out of 180 countries on the report of Reporters Without Borders(RSF)’s World Freedom Index 2021.[27]The Government’s hostile and repulsive attitude to the independent media and the criminalization of journalists for their reports have not been more pronounced than in the first few months of the lockdown. In March 2020, all social media platforms were informed to ‘inform users that they should not host, display, upload, modify, publish, update or share any information that might affect public order and that is not unlawful in any manner.’[28] In  Indian Express Newspapers vs. Union of India[29], it was agreed that the freedom of the press is in favor of public interest as it disseminates facts and information to the public which is their right to information. This is how a democratic society works.

Keeping A Balance

Under the guise of calamity, the state has been stifling dissent, which is not a new concept in India. The British during the colonial regime punished under sedition law for penning ‘politically sensitive’ articles in his magazine, Young India. Similarly, Bal Gangadhar Tilak was arrested when he actively excoriated the conduct of Britsh during the plague in 1897. Lately, the Uttar Pradesh government had threatened to use the National Security Act (NSA) against the people for allegedly spreading fake news and false alarms. This was rightly called out by Justice D Y Chandrachud in a recent hearing of suo moto case regarding essential items of Covid 19 that is, “I flag this issue at the outset. We want to make it very clear that if citizens communicate their grievances on social media and the internet, then it cannot be said its wrong information.”[30] Article 19(2) of the Constitution grants the Government to impose limited restriction on the Freedom of Speech and Expression of the people in the interest of the security of the state, public order, friendly relations with other states, public decency or morality, contempt of court or incitement of any offense but, this restriction must be proportionate to the threat at hand as observed in the case AnuradhaBhasin vs. Union of India.[31]It is indeed true that many social media posts have indeed been found inaccurate, or worse, intentionally forged to spread chaos and bigotry. Yet, the power of citizens to spout off the truth cannot be thwarted by invoking any provision which unambiguously violates the freedom of expression or creates a chilling effect amongst the people and the issue of false information must be countered with facts and appropriate legislation and guid

---

[1]INDIA CONST. art. 19. Cl 1.

[2] UP police to take action against those spreading rumours that COVID spreads through 5G trials(09/05/2021), THE ECONOMIC TIMES, https://rb.gy/mdsi3x.

[3]The Indian Penal Code, 1860, No. 45, Imperial Legislative Counil, 1860(India).

[4]The Delhi Prevention of Defacement of Property Act, 2007, No. 1, Legislative Assembly of National Capital territory of Delhi, 2008.

[5]Id.

[6] Delhi Police arrests 25 people, lodges 25 FIRs over posters critical of PM Modi(15/05/2021), LIVEMINT, https://rb.gy/hzid2u.

[7]Attacks on journalists cast a shadow on state of freedom of expression: CHRI (02/02/2021), THE HINDU, https://rb.gy/xaoq7x.

[8]Shubhajit Roy, India signs joint statement at G-7 for freedom of expression: ‘Internet curbs threat to democracy THE INDIAN EXPRESS (Jun. 19, 2021, 3:56 PM), https://rb.gy/gpomz3.

[9]The Information Technology Act, 2000 No. 21, The Indian Parliament, 2000.

[10]Id.

[11]Krishnesh, Deep dive: How the intermediaries rules are anti-democratic and unconstitutional, INTERNET FREEDOM FOUNDATION ( Jun. 19, 2021, 4:01 PM), https://rb.gy/7wrj28.

[12]2008 Indlaw DEL 763

[13]The Information Technology (Amendment) Act, 2008, No. 10, The Indian Parliament, 2008.

[14] See supra note 3.

[15]See supra note 9.

[16]Saumya Kapoor, Tracing the development of “intermediary liability in India, LEXOLOGY (Jun. 19, 2021, 4:21 PM), https://rb.gy/gqsfnb.

[17]AIR 2015 SC 1523.

[18]See supra note 1.

[19]See supra note 17.

[20]2011 (48) PTC 49 (Del).

[21] 2017 (69) PTC 551 (Del).

[22]See supra note 11.

[23]Journalists detained, assaulted in India during COVID-19 lockdown, CPJ, https://rb.gy/wxfydn.

[24]Behind Bars: Arrests and Detentions of Journalists in India 2010-2020, FREE SPEECH COLLECTIVE, https://rb.gy/ludr2f.

[25](2020) 111 ACC 768.

[26]FIR against The Wire’s Siddharth Varadarajan for article on farmer’s death; Varadarajan calls it malicious prosecution, THE LEAFLET, https://rb.gy/qwoq9g.

[27]Billy Perrigo, The Indian Government Is Silencing Critics Even As Its COVID-19 Crisis Surges, TIME (JUN, 19, 2021, 5:05 PM), https://rb.gy/wu0pe0.

[28]See supra note 24.

[29] 1985 2 SCC 434.

[30]LawDon’t Clamp Down on SOS COVID-19 Messages, Supreme Court Warns States, Police, THE WIRE, https://rb.gy/dbvrad.

[31] (1941) 3 All ER 338.