Social media posts and freedom of speech

Oinam Nabakishore Singh *

In 2016, Merriam-Webster defined social media as "forms of electronic communication (such as Web sites) through which people create online communities to share information, ideas, personal messages, etc."

With the constant changes in information and communication technology, the social media platforms offer a host of services to allow the members and public to send and receive information in different formats. Improved access with improved internet connectivity and use of smartphones, at affordable cost, has also enabled more and user to be on social media.

After the death of Bal Thackeray, founder of Shiv Sena, on 17th November, 2012, a bandh was called by the supporters of Thackeray to pay respect to him, which led to suspension of all modes of transport in Mumbai city. Shaheen Dhada, 21 years old college student posted a status update on her Facebook account with text - "With due respect, every day thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers. …… Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect".

Her friend Renu Srinivasan clicked "Like" on the update in her Facebook account. Both the girls were arrested by Mumbai police under section 505(2) of the Indian Penal Code that seeks to punish statements that amount to "creating or promoting enmity, hatred or ill-will between classes". Additionally, the two students were also charged with Section 66A of the Information Technology Act that criminalizes online speech that is "grossly offensive or of menacing character."

They were also charged under section 295A of Indian Penal Code for making insulting or outraging religious feelings an offence. The punishment for each count is three years’ imprisonment. Since the crowd of supporters of Bal Thackeray were agitated and indulged in vandalism over the facebook posts, which they considered to be disrespectful to their leader, police personnels were posted in the homes of these girls for their security.

Shri Markandey Katju, a retired judge of Supreme Court and Chief of Press Council of India wrote to the Chief Minister of Maharashtra to take action against police officials who misused the laws to arrest the girls. He mentioned in his letter, "We are living in a democracy, not a fascist dictatorship. In fact, this arrest itself appears to be a criminal act since… it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime."

Ms. Shrey Singhal, who graduated from Campus Law Faculty, Delhi University in 2016, filed a Public Interest Litigation in 2012, Writ Petition (Criminal) No.167 of 2012, in Supreme Court challenging the constitutional validity of Section 66A and some other sections of Information Technology Act. Since Section 66A of IT Act is directly relevant to posts in social media, it is reproduced below for better appreciation of legality or otherwise of posts:

66A. Punishment for sending offensive messages through communication service, etc.

Any person who sends, by means of a computer resource or a communication device, —
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation. — For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

The judgement and orders of a bench comprising of Justice J. Chelameswar and Justice R.F. Nariman of the Supreme Court of India passed on 24th March, 2015 quashed section 66A of IT Act in the above mentioned Writ petition and other similar petitions on various grounds.

In the judgement of the Supreme Court, it was observed that the words and terms used in Section 66A of IT Act are vague and that section cannot get protection under Article 19(2) of the Constitution of India by way of reasonable restriction on the exercise of the right of freedom of speech in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

The Court relied upon its previous judgements on the freedom of speech and struck down section 66A of IT Act. It implies that posts in social media as described in that section would not be an offence to attract penalty under that section.

However, such posts can still be an offence under other existing laws like Section 500 of Indian Penal Code for defamation if such posts are defamatory or posts which amount to incitement for hatred, etc. One should avoid using social media for the purpose and abetment of any offence under any of the existing laws. As there are grey areas in interpretation of social media posts, there are possibility of getting in trouble for posting content, which may otherwise appear innocuous.

With increasing access to internet and smartphones in future, social media is going to engage larger section of population and larger role in shaping opinion. Conventional print and electronic media will have to share space with their younger brother, social media, who will become more aggressive. On the brighter side, social media will contribute to strengthening of democracy, which relies on debate, dialogue, dissent and informed voice of the people.

Views expressed are personal.