Offensiveness and Freedom of Speech – A Comparative Study of our Rights and Duties in the Digital World

January 17, 2013, by | Start Discussion

“Freedom of speech does not protect you from the consequences of saying stupid shit.” ― Jim C. Hines

Yes, you have guessed it right, it with reference to current things happenings around.

Although I had written in one of the earlier editions about Sec. 66A my intention behind writing this article is to give readers a fair idea about legal status in India about the burning issue of Freedom of speech and expression and rights in the digital world.

Recent incidents

  • Anti-corruption cartoonist AseemTrivedi arrested on sedition charges – AseemTrivedi was exhibiting his political cartoons against Corruption in the anti-corruption protest at the MMRDA grounds, when his website was suspended by Crime Branch, Mumbai and arrested him on the counts of sedition Under Sec. 124 (A) of the Indian Penal Code, Sec. 66A of the Information Technology Act and under the National Emblem Act, 1971. http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.html
  • Industrialist held for “offensive” tweet on Chidambaram’s son – An industrialist was arrested on Tuesday on charges of posting “offensive remarks” against Union finance minister P Chidambaram’s son Karti Chidambaram on micro-blogging site Twitter. S Ravi, 46, who runs a packaging unit at Sederapet Industrial Estate in Puducherry, in a tweet on October 19 alleged that Karti had “amassed” more wealth than Robert Vadra, UPA chairperson Sonia Gandhi’s son-in-law. In another tweet on the same day, he said “as a Tamilian” he felt “bad to have sent P Chidambaram to national politics”. Ravi has been actively participating in events organized by the India Against Corruption (IAC) in Puducherry. http://articles.timesofindia.indiatimes.com/2012-10-31/india/34836084_1_puducherry-defamation-suit-union-territory
  • Two girls in Palghar were arrested over a remark posted on Facebook following Shiv SenasupremoBal Thackeray’s death. Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested. The duo was booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopedic clinic at Palghar. Her comment said “People like Thackeray are born and die daily and one should not observe a bandh for that.”  http://timesofindia.indiatimes.com/city/mumbai/Facebook-arrests-Relief-for-Palghar-girls-on-the-cards/articleshow/17394827.cms

Legal stand

I have covered this topic in four parts in order to simplify the things.

  1. Definition and explanation of Sec. 66A of the IT Act;
  2. Meaning of the term ‘offensive; and
  3. Meaning of the term Freedom of Speech and Expression guaranteed under the Constitution of India.
  4. Test of Balance of Convenience

Sec. 66A reads as –

Any person who sends, by means of a computer resource or a communication device,—

  • Any information that is grossly offensive or has menacing character; or
  • 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,
  • 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

Punishment – 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 section covers two different acts –

  1. Sending offensive or menacing messages by using electronic communication means; and
  2. Sending false messages with intend to to cheat, mislead or deceive people or to cause annoyance.

While proving false message is relatively easy, but the real question is ‘What constitutes an electronic message to be offensive or of menacing character?’

What constitutes offensiveness?

Term ‘offensive’ has not been defined by the Indian law. Oxford English dictionary defines word ‘offensive’ as – Causing someone to feel deeply hurt, upset, or angry;

While in criminal law, it is necessary to prove that the person has Mensrea i.e. guilty mind behind doing a particular act in order to prove guilt of a person.

Hence it can be said that it is a relative term and its interpretation varies from person to person.

Freedom of Speech and Expression

Article 19 of the Constitution of India defines Freedom of Speech and Expression as –
(Entire Article is not covered due to limitation of space. You can refer the Constitution of India for the same)

Art. 19 – Protection of certain rights regarding freedom of speech etc.

1.    All citizens shall have the right

a)    to freedom of speech and expression;
b)    to assemble peaceably and without arms;
c)    to form associations or unions;
d)    to move freely throughout the territory of India;
e)    to reside and settle in any part of the territory of India; and
f)    omitted
g)    to practise any profession, or to carry on any occupation, trade or business

The aforementioned rights are given subject to reasonable restrictions and considering the laws, rules and regulations made by the central or state government.  Supreme Court of India has time to time said that the Freedom of expression and speech is not absolute.

Test of Balance of Convenience

It means an objective test applied by the courts to each party’s circumstances to establish who is more inconvenienced with having to travel to court.

This test of balance of convenience is very critical in interpreting the provisions regarding offensiveness and it is important to note that in some of the recent incidents of arrest the situation prevailing at the site demanded immediate action from Police in order to avoid worsening of situation (I am not defending Police here).

Conclusion

To conclude, I remember this famous quote by George Washington

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

But while enjoying our fundamental and constitutional rights, we must not forget our fundamental duties given by the same Constitution.

As intention behind this article is to highlight on the legal provisions our rights, I also intend to enumerate our fundamental duties here. As a citizen of India it is expected that we should use our rights keeping in mind our duties and respect the spirit of our Constitution.

Article 51A – Fundamental Duties

It shall be the duty of every citizens of India-

  • to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
  • to cherish and follow the noble ideals which inspired our national struggle for freedom;
  • to uphold and protect the sovereignty, unity and integrity of India;
  • to defend the country and render national service when called upon to do so;
  • to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
  • to value and preserve the rich heritage of our composite culture;
  • to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
  • to develop the scientific temper, humanism and the spirit of inquiry and reform;
  • to safeguard public property and to abjure violence;
  • to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.

Sagar is a Law graduate. He is Head at Asian School of Cyber Laws(Maharashtra). He specializes in Cyber Law, Intellectual Property Law and Corporate Law. He teaches at numerous educational institutions across India.

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