The Chilling Effect on freedom of speech and expression in Cyberspace

The Supreme courts strikes down S 66A of the Information Technology Act as unconstitutional as it has a total chilling effect of the Freedom of Speech and Expression of Netizens. A landmark judgment .

S 66A was introduced in the Information Technology Act 2000 in the year 2008 that provided for  punishment for sending offensive messages through communication service. The section had 3 parts. Sec 66A sub-clause (a) prohibited sending of messages which were grossly offensive menacing; sub-cluase (b) prohibited sending of any message that caused inconvenience , annoyance , insult , injury or caused criminal intimidation  repeatedly and sub-clause (c) provided punishment for sending any message that misled the receiver about   the origin of the sender . Thus S 66A prohibited a) posting of offensive or defamatory content b) acts of spamming , cyber stalking or cyber bullying; and  c) acts of phishing . This section made these acts a cognizable offence with punishment of imprisonment upto 3 years which gave powers to the Police to arrest without a warrant, if the Police are of the opinion that an offence under the section is likely to be committed or has been committed .

Section 66A was introduced in the year 2008 as the offences of posting of defamatory content , cyber bullying , cyber stalking , spamming were on the rise and existing provisions of the Indian Penal Code ( IPC) were insufficient to address all these technology related crime. The origin of this section can be traced back to the Telecommunication Act 2003 in the UK.

S 66A became notorious after the police made arrests of unwary citizens who were posting and voicing their opinions online on incidents happening around them and the section got its infamous identity of being draconian. Shaheen Dada and Renu Srinivasan were arrested after an innocent post or a comment made by them on a social media site relating to the death of senior political leader Bal Thackrey. Aseem Trivedi was booked under S 66A for displaying cartoons mocking the parliament and corruption and Prof Ambikesh Mahapatra was arrested for forwarding caricatures of political leader Mamata Banerjee.  3 “Whatsapp” group admins were also arrested for circulation of messages that were spreading rumours. Overall the mood amongst citizens was that of sheer panic and distress as S66A was getting invoked at the slightest instance of inconvenience faced by political parties or the state. In the year 2013 the Government issued an advisory based on a court order that caution is to be exercised before making arrests and police powers were thereafter curtailed whereby the Police were required to take permission of an officer of the rank of an IG or a DIG prior to making any arrests. However the civil society was in no mood to tolerate the shackles put around its fundamental right of freedom of speech and expression guaranteed by Art.  19 (1) (a) of the constitution.

Several petitioners filed public interest litigations citing police excess and demanding that the section be struck down as draconian and unconstitutional.The Supreme Court in the landmark judgment delivered on 24th March 2015 by Justice Rohinton Fali Nariman and Justice Chelameswar struck down S 66A of the IT Act as unsustainable and unconstitutional stating that the chilling effect  on free speech will be total as S 66A was too vaguely worded and would cover any opinion on any subject. The entire judgment is based on legal analysis of freedom of speech and expression which has its foundation in three basic concepts i.e discussion , advocacy and incitement. The court observed that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. Mere discussion or even advocacy of a particular cause however unpopular , is at the heart of Art 19(1) (a) of the Constitution , the article that guarantees the freedom of speech and expression. It is only when the discussion or advocacy reaches a level of incitement , reasonable restrictions as defined under Art 19(2) of the constitution apply.

The Supreme Court has again, for one more time, stepped in and ruled in favour of protecting the constitutional rights of the citizens against the right of the state to curb individual freedoms.

So what does this judgment mean to internet users ? How has it affected the freedom of expression and speech on the internet ? Is now cyberspace in India less regulated that before ? Does it mean that now one can talk about anything and everything on the internet arbitrarily without any fear of law? This seems to be the general mood amongst the public . Do anything  or say anything on the internet . The State no longer has powers to curb the freedom and arrest and there are not fetters on the right of free speech and expression.

Well, technically this judgment is only in respect of the wording of 66A as they were vague , loose and prone for misuse because of the arbitrary powers of arrest given to the police under the section. As the Section is in respect of  any message that is annoying , inconvenient , grossly offensive etc, and no distinction is made between a mere discussion and advocacy and incitement by such words that may immediately lead to public disorder, affecting the security of the state, etc ,  the same has been struck down.

The Supreme Court annulled S 66A being unconstitutional as it had the “chilling effect “ on a large amount of protected and innocent speech . Any discussion or advocacy disseminated over the internet that may be a point of view  pertaining to governmental , literary, scientific or other matters which may be unacceptable or unpalatable to certain sections of society, will certainly be offensive or will cause annoyance to that section of society, which emans any opinion or discussion would be covered under S 66A and the chilling effect would be total.

However any content that may cause an injury to reputation or defamation or criminal intimidation or cause public disorder or is obscene in nature,  will continue to be a criminal offence punishable under various provisions of IPC as well as the IT Act 2000. Cyber defamation continues to be a criminal offence under S 499 of IPC. Posting of obscene material on the internet attracts the penal provision of S 67 of the IT Act which provides for punishment of imprisonment upto 5 years. If any content posted on the internet, threatens the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, is against decency or morality, amounts to contempt of court or is defamatory or is an incitement to an offence , then such a post or content is an offence u/s 66F of the IT Act . Cyber stalking is also defined under S 345D of IPC and was recently included as a crime by an amendment in law following the gang rape incident in Delhi and may also cover certain acts of Cyber bullying.

Cyber law in our country has evolved as a knee jerk reaction to incidents and hence appears haphazard in some places. As a policy, India is regulating its cyberspace stringently as opposed to developed countries like USA or UK where the approach is towards promoting an open society in cyberspace with minimum regulations. S 66A was introduced in year 2011 to regulate offensive content on the internet . S 69A of the IT Act provided for blocking of websites that hosted objectionable content. However due to the vagueness in the wording of S 66A , it was getting widely misused. The Supreme Court had wide powers to read down section 66A and introduce clarity and could have introduced the reasonable restrictions defined under Art. 19(1) (a) of the constitution in it thus making it more concise and effective. Clarity in wording would have brought all the offences such as cyber defamation , cyber bullying, cyber stalking , spamming and phishing under one umbrella making its implementation easier

The legislature will now have to rethink of a proper amendment that does not get abused and also addresses peculiar cyber offences.

In the judgement , the Supreme Court has taken a sweeping view of the Freedom of speech and expression and has held that S 66A is violating this right and is hence unconstitutional. The Supreme Court observed that as  the Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship and that India is a sovereign democratic republic, hence liberty of thought and expression is a cardinal value that is of paramount importance for every citizen.  Though this right is not absolute and is subject to reasonable restrictions  at the same time it is necessary as we need to tolerate unpopular views. Existence of S 66A would have had a chilling effect on the free flow of ideas and opinions which are essential for a meaningful governance.

Thus it is definitely a victory for the citizens of India as its freedom of speech and expression is once again protected by the Supreme Court but not without reasonable restrictions. Let us not forget that with every Right there is a reciprocal duty and an obligation.

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