ABSTRACT
In the past few years we have relentlessly heard about the government banning apps, websites and social media pages stating security concerns, curbing hate speeches or other concerns which threaten the nation or constitution. We know that certain platforms are used by terror groups or hate mongers to cause unrest in the society and it is necessary to control them and digital censorship helps us to do the same. But many times the government takes down online platforms if they don’t align with the vision or values of the government, hence threatening the right to freedom of speech and expression of an individual. Laws and statutes which were once used to address exceptional threats are being used by the government mindlessly for digital control of speech, expression and actions.
Such steps not only curtail the fundamental rights of an individual but also become a hurdle in passing down information which could be of major concern or national interest. It may also result in formulation of biased opinions based on narratives controlled by higher authorities. There is an urgent need to strike down a balance between digital censorship and the right to freedom of speech and expression.
INTRODUCTION
In this digital age, the internet has become a vital part of our lives. Everything functions on a single click of our fingertips. It has made communication and sharing of information effortless. While sharing of information has become so easy, it has also given rise to illicit online activity. Cybercriminals, extremists, terror groups etc are using different applications and websites for spreading cybercrimes, spreading misinformation, radicalizing people, etc. threatening the security of India and its citizens as well as its integrity and sovereignty. To handle such situations digital censorship becomes a necessity.
Digital censorship refers to blocking access to online information and platforms under certain circumstances. It can be in the form of taking down the content or banning the social media account or taking down the whole website or application. It helps us to manage the problem up to a certain extent but does it affect the fundamental rights of an individual? Let’s explore the nuances of the same.
LAWS RELATED TO DIGITAL CENSORSHIP IN INDIA
The section 66A of the Information Technology Act, 2000 states the punishment for sending offensive messages through communication services etc. which are false and misleading for the purpose of causing annoyance, inconvenience, danger, obstruction, injury, criminal intimidation, etc.
The Section 69A of the Information Technology Act, 2000 empowers the government to block public access to any information through any computer resource if it is satisfied that such blocking is necessary or expedient in the nature of interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above. The reasons for the same to be stated in written.
In Shreya Singhal vs. Union of India (2015) the Supreme Court of India struck down Section 66A entirely declaring it unconstitutional stating it to be vague and obscure. It also caused fear among the citizens of getting arrested hence, people refrained from speaking. It was weaponised by higher authorities to threaten activists and journalists. The Hon’ble court also held that Section 69A of the Information Technology act was constitutionally valid as it consisted of structured procedures with reason being recorded in writing.
The section 79(3)(b) of the Information Technology Act, 2000 states that online intermediaries lose their safe harbour immunity if they fail to remove or disable access to unlawful information after being notified by the government or its competent agency.
LAW RELATED TO DIGITAL CENSORSHIP ACROSS EUROPE
Digital censorship across Europe is governed by the Digital Services Act (DSA). It has rules governing the online services. It protects the fundamental rights of citizens along with protection against illicit online legal activities. The key features of DSA are:
- There is transparency in content removal. The platforms are liable to state the reason for removal.
- The content removal can be appealed through the platform itself or an out of court dispute settlement body which reduces the hassle of traditional litigation. It is more efficacious and cheap.
- Illegal content can be reported by a user directly to the platform . They are required to take immediate actions and provide options of appeal to their decision.
- It follows a proportionality principle.
- Specific rules are stated to ensure that online platforms don’t possess and spread unintentional risks.
CONFLICT BETWEEN DIGITAL CENSORSHIP AND FREEDOM OF SPEECH
While digital censorship helps us to curb illicit online activities, at the same time the restrictions also jeopardize our right to freedom of speech under Article 19 (1)(a) of the Constitution of India. The challenge lies in determining the extent of regulation of the digital world. In recent years we have seen incessant taking down of online platforms, websites and applications and shutting down of the internet by the government. Sometimes they don’t even cite reasons properly and keep it vague. It might result in potential misuse and arbitrary decision making. People may not be able to express their views online in important situations which might change the whole discourse of the end of the situation, for better or worse.
In Anuradha Bhasin vs. Union of India (2020), the Hon’ble Supreme Court affirmed that access to the internet is a fundamental right when it is being used to practise freedom of speech and expression. It restricted the powers of the government to completely shut down the internet and mandated transparency and accountability i.e. all such executive orders should be publicly disclosed so that they can be legally challenged and reviewed systematically.
ANALYSIS
We can’t deny the importance of digital censorship as it protects us against severe issues of cyber crime, national threat, unrest among citizens due to false narrative or misinformation, etc. While there are a significant number of laws for digital censorship, the laws for injustice caused using those laws are barely there. We can see a trend of banning online platforms, websites or applications if it doesn’t align with the decisions, values or the visions of the government. Most of the time either the reasons are not stated for the digital ban or they are inadequate. In a few cases they ban the platform due to trivial issues. More legal provisions are required for protection against unlawful digital censorship. Moreover, challenging digital ban decisions in the court is time consuming and may cause monetary loss to the affected individual during that time period.
Following things could be done to resolve most of the issues stated here:
- A separate authority should be made to deal with what could be censored digitally and they should be free from the influence of the government.
- Transparency at grass-root level is required. The reasons for the censorship must be made public.
- Separate courts for speedy trials for such censorship should be made.
- Monetary compensation should be given to affected individuals if the censorship is proved to be unlawful.
- The content censored online must be reviewed periodically.
- Before censoring the content it must be ensured that no other alternative is available and censoring is the last resort to deal with the issues.
- More clarity should be given about what is going to be considered inappropriate and be censored digitally.
CONCLUSION
The need of the hour is to strike a balance between the fundamental rights and digital censorship. Digital censorship only becomes a problem when there is lack of transparency, accountability and adequate safeguards. It should be governed by proportionality principle and free from political influence. Digital censorship should not be used at every minor inconvenience at the whims of the government as the internet and these platforms are also a medium of our expression. We all are aware of the rippling effect of the internet and online platforms.
I would like to conclude by stating that in the future digital governance should aim at protecting its citizens from genuine harm without compromising the aspects of online dissent, innovation, democratic participation etc. It must meet the constitutional standards while effectively dealing with the challenges posed by the internet and online platforms.
Author: Bhavna
2nd Year Undergraduate Law Student
Faculty of Law, University of Allahabad
