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Introduction
The digital era has opened up a new field of conflicts around the right to free speech and expression. Internet as a digital medium has made social media platforms such as X formerly twitter, Meta (Facebook/Instagram), YouTube, Tik-Tok etc. the new public squares where people are free to speak and share. However, at the same time, the ability to operate at scale has created certain legal conflicts around the reach, extent, and limitations of rights to free speech.
Although its rise has facilitated political activism, outreach, and the blossoming of other creative spheres, digital media has also been leveraged to perpetrate targeted abuse, censorship, disinformation, and other related crimes against public expression.
Foundations of Speech Rights and Statutory Exceptions
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Right to Freedom of Speech and Expression under International Law
Article 19 of the Universal Declaration of Human Rights (UDHR) says that everyone has the right to freedom of opinion and expression. All people have the right to seek and share information and to spread their views through any channel and source, without restrictions on borders. Similarly, the International Covenant on Civil and Political Rights (ICCPR) in Article 19 recognizes the right to freedom of speech and expression via electronic means as well, with the provision for reasonable restrictions for the protection of the reputation and rights of others or for national security.
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Domestic Provisions Pertaining to Right to Free Speech and Expression
Article 19(1)(a) of the Constitution of India provides that all Indian citizens have a fundamental right to freedom of speech and expression. However, this right is not absolute and comes with the restrictions specified in Article 19(2). The Indian Constitution provides that the right may be reasonably restricted in the interest of India’s sovereignty and integrity and security of the State, friendly relations with foreign states, public order, decency, and morality, contempt of court, defamation, and incitement to an offence. However, the Indian jurisprudence on the issue has been nuanced with the courts declaring that the restrictions should be narrowly interpreted and applied.
Unlike the restrictions under Article 19(2), the First Amendment to the US Constitution protects all speech from state regulation unless it falls under a few specifically designated narrow categories such as incitement to imminent lawless action, obscenity, defamation, etc. With regard to social media, the biggest hurdle for free speech rights in the US arises from the State Action Doctrine, which essentially states that the First Amendment only applies to government actors. Social media are private entities and therefore not bound by the first amendment, and therefore can censor, shadow ban or otherwise regulate speech as they see fit. Courts have been reluctant to apply the State Action Doctrine to social media platforms.
Foundations of Legal Immunities for Social Media Entities
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The Legal Doctrine of Intermediary Immunity
Interactive computer services and social media platforms benefit from a law called ‘Communications Decency Act’, 1996, which in Section 230 says that “No provider or user of an interactive computer service shall be liable … for any action taken in good faith in reliance upon the direction of a content creator”. In simpler terms, social media platforms are not responsible for content published on their websites or applications by their users. Moreover, the interactive service can moderate the content, remove any content as determined to be necessary, without being held liable for such content removal by users.
India has a similar law called the Information Technology Act, 2000, Section 79 of which provides that an intermediary shall not be held liable for any third-party information or data passed on its network provided that it acts as a mere conduit for information. The intermediary shall not be held liable if it does not modify or alter the information in any manner, or take any action which is in the direction or control of the intermediary. However, the safe harbor granted under Section 79 of the IT Act is conditioned upon compliance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023. The Rules require platforms to undertake due diligence while publishing or transmitting any information, and to have grievance redressal mechanisms and processes to take down content upon receipt of a court order or government direction. In other words, a failure to comply with these rules will lead to platforms losing the protection of the IT Act and its employees facing prosecution for publishing or transmitting any unlawful information.
Key Case Law and Judicial Developments
a. Shreya Singhal v. Union of India, (2015) 5 SCC 1
In this historic judgement, the Supreme Court of India struck down Section 66A of the IT Act, which had been used to censor online speech by criminalizing the sending of “offensive” or “annoying” messages through online platforms. The Court read down Section 79 to hold that the intermediary shall not be held liable for hosting any kind of content until there is a court order or governmental direction to remove the content. The Court also clarified that the state cannot selectively target individuals’ speech based on the fact that it is “offensive”, “unpopular”, etc. The Supreme Court emphasized that the right to free speech and expression includes the right to criticize government policies, even when they are considered controversial.
b. Javed Ahmed Hazam v. State of Maharashtra, 2024
The Supreme Court of India emphasized the right to criticize the government in this case too. A WhatsApp post regarding the revocation of special status to Jammu and Kashmir was deleted by WhatsApp, and a criminal case was filed against the Professor who posted it. However, the Supreme Court quashed the criminal case, stating that the right to criticize the government is a fundamental right under the Constitution. However, the Court added that the test for determining whether criticism is such that it leads to public order problems should be viewed from the lens of a strong-minded and sober person, rather than from someone who feels that every criticism from any quarter is undermining public order or security.
c. Murthy v. Missouri , 2024
An attempt to seek an injunction against the communication between federal agencies and social media regarding disinformation did not succeed due to the Supreme Court acknowledging the fine line between a regulation and coercion by the state.
The Legal Issues Relating to Freedom of Speech and Expression
Freedom of speech on social media is currently limited not so much by state forces but rather by each individual’s personal feed. Personalized algorithms promote specific content depending on the profile of the person surfing on the resource. This has limited the ability of individuals to come across content that is contrary to their personal beliefs, which is a fundamental aspect of democracy.
Under Article 69A of the IT Act, 2000, the central government and the state governments can direct intermediaries to block or disable access to any information on grounds of India’s sovereignty and integrity, security of the country, etc. However, the reliance on private intermediaries to enforce such content blocking or takedown directives can become a tool of suppression by the state, creating a chilling effect on free speech. Additionally, as noted in Part III, the intermediaries may have to face criminal liability for failure to comply with these takedown directions. This has caused platforms to self-censor their own content and that of their users, stifling free speech.
Conclusion
The right to freedom of speech and expression has to be carefully balanced between the state, social media platforms, and the individual. To secure rights to free speech and expression in the digital age, these recommendations are made:
i. Right to know what algorithm is doing:
The Government must amend the relevant laws to require that social media companies release information about content moderation in the first place for those who are shadow-banned or censored. The latter can be achieved by the companies creating review boards with the authority to hear complaints and reverse decisions by the algorithm or moderators.
ii. Judicial Oversight of Content Blocking Regulations by the State:
The content blocking or takedown orders by the state must be subjected to judicial oversight so that the orders are narrowly tailored to the harms alleged.
