MxMIndia

Tag: freedom of speech

  • 'Like' it or not,everyone is talking about how a mere status update got a 21-year-old arrested. Can social media flourish, if every move is monitored?

    Are we really Free to post online?

    Cartoonist Hemant Morparia’s take on the controversy. First appeared in Mumbai Mirror. Republished with the permission of the cartoonist

     

    By Ananya Saha

     

    “Everyday thousands of people die. But the world still moves on. Just due to one politician dead. A natural death. Everyone just goes crazy. They should know. We are resilient by force, not by choice. When was the last time did any one show some respect or even 2 mins silence for Shahid Bhagat Singh, Azad, Sukhdev, or any of the people because of whom we r free living Indians. Respect is earned, not given. N definitely not forced. Today, Mumbai shuts down. (sic)”

     

    These are the words, posted as her Facebook status, that got a 21-year-old girl arrested. Not only that, her uncle’s hospital was ransacked in protest. If you cannot say ‘what’s on your mind’ on Facebook, and share with your friends, what good is social media? Well, you could have ‘Liked’ the status, and landed up in jail too. That is what happened to her friend. Both have now completely logged off Facebook. And everybody is left asking, what is wrong with the system?

     

    Maheshwar Peri

    Maheshwar Peri, Chairman, Pathfinder Publishing opined, “It is ridiculous whoever accepted the complaint based on a Facebook status. Social media is all about interaction with my friends and whoever subscribes to or believes in my opinion.” According to him, if the private discourse on internet or otherwise has been intruded upon leads to a police complaint and the police acts on it, it is ridiculous.

     

    The girls were charged with 505 (2) of the IPC and 66 A of the IT Act, arrested and later granted bail. The last few months have seen some interesting places in this regard, whether it is Aseem Trivedi, Karthi Chidambaram or the present case, which only point to the inefficacy of Indian cyberlaw.

     

    Pavan Duggal

    Pavan Duggal, Advocate, Supreme Court of India and President, Cyberlaw Asia, explained, “The entire case has demonstrated the complete inadequacy of the Indian Cyberlaw. The language and scope of provisions used under Section 66A are very wide and are capable of distinctive varied interpretations. Seen from another angle, Section 66A can be effectively used as a tool for gagging legitimate free online speech. The problem under Section 66A is that it comes up with extremely wide parameters which have not been given any specific definition under the law. These parameters are capable of being interpreted in any manner possible, by the law-enforcement agencies. As such, while Section 66A talks about sending any information that is grossly offensive or having menacing character, the law does not give any guidance as to what is grossly offensive or information having menacing character. Thus, it is left to the subjective description of the law-enforcement agencies in this regard. Further Section 66A(b) talks about sending any information by means of a computer resource or a communication device which a person knows to be false, but has been sent for the purposes of causing annoyance, inconvenience, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will, persistently by making use of such computer resource or a communication device. All these wide meaning terms used under Section 66A have not been defined, which itself provides huge amount of flexibility in Section 66A to be used in any circumstances perceivable. Thus, huge portions of legitimate free online speech could also be brought within the ambit of Section 66A of the amended Information Technology Act, 2000.”

     

    The present case has once again brought to the forefront as to what is the concept of liking on Facebook and its legal ramifications. Mr Duggal further pointed out that when a person clicks on “Like” button on Facebook, it does not constitute an offence under Section 66A. “Technically speaking, a person is only clicking the button of “Like” but is not per se either sending any information that is grossly offensive or has menacing character. Neither is the said person sending any information which he knows to be false but which has been sent for the purposes of causing annoyance, inconvenience, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will. In the present case, Section 66A has been erroneously invoked,” he pointed out.

     

    While Pranesh Prakash, Policy Director at Centre for Internet and Society, maintained that just because something is published ‘online’, it does not mean that it is exempt from law, he added, “The online laws in India are even worse than the laws applied offline and some of those laws that are applied online, are unconstitutional.” The fact that people were posting their views about Mumbai Bandh on various other media, it remarkably shows the unconstitutional application of the applied laws.

     

    “Indian cyberlaw is only aimed to be an enabling legislation for promoting growth of e-commerce, m-commercial and online free speech. Indian cyberlaw should not act as an impediment to the evolution and growth of online free speech, nor should it be seen as a handle to suppress free online speech. Section 66A needs to be serious quickly reviewed and amended so as to ensure that it does not become a tool for silencing genuine legitimate online free speech, under the garb of the parameters detailed therein,” said Mr Duggal.

     

    But that is exactly what it is doing, according to Mr Peri. He said, “If you look at the entire ecosystem we are living in, you have a govt which enjoys control, you have a law which can be misinterpreted, you have law enforcement agencies which are not as free as they are supposed to be and you have a mainstream media which is fearful of the big and mighty. Three of the four pillars of democracy are fearful of repercussion. How can you and I enjoy personal freedom then?”

     

    However, as Mr Duggal explained, certain restrictions have been put online free speech. “For example, the online free speech does not give the license to defame. Similarly, the entire issue pertaining to the Facebook status needs to be examined more carefully. There are various nuances under the Information Technology Act, 2000 which could be applicable,” he said. The present controversial action arose because Section 66A provides parameters for its inherent misuse. There are tremendous loopholes under the existing law. There is a need for ensuring that the Information Technology Act, 2000 needs to be amended in such a manner so as to ensure that the provision like Section 66A of the amended Information Technology Act 2000 are not used to the detriment of online free speech.

     

    Mr Duggal asserted, “In this particular case, it is well possible for the Government to have adopted the route available under the Information Technology Rules, 2011. In this case, Facebook is an intermediary under Section 2(1)(w) of the amended Information Technology Act, 2000 and could be mandated by virtue of direction by the Government under the Information Technology (Intermediary Guidelines) Rules, 2011 to remove such content. Such an action could have been done best in a manner that would have ensured minimal disturbance and yet would have ensured that the relevant language is removed.” However, what we are now seeing on the Internet is that more and more people reproducing the same lines and content that the girls posted.

     

    Section 66A also brings up the huge conflict that it has with the Article 19 of the Constitution of India. Article 19 (1)(a) of the Constitution of India guarantees to all citizens the fundamental rights to freedom of speech and expression. The restrictions given under Article 19(2) are the guiding lights for regulating free speech including online free speech. However, the parameters and restrictions granted under Section 66A are far more broad and wider than Article 19(2) of the Constitution of India. “Seen from another angle, Section 66A appears to be perfect tool to promote and propagate the concept of Internet censorship and censorship of free speech inIndia,” said Mr Duggal.

     

    The complexity of India may make it easy for such assaults on freedom of expression. But the democracy of India is where the solution lies. Is India’s social fabric strong enough?

     

  • It is not media’s right but rather an obligation to keep the people informed and it should not give the government a chance to step in and hold it accountable, says Justice Varma.

    @FF12: NBSA chief suggests independent regulation for media

    By A Correspondent

     

    In 1950, Jawaharlal Nehru said that freedom of speech should be granted to good and bad editors, but they should use it in national interest for he believed that if it is left to the government to decide, the good editors will be jailed and the only the chamchas will survive. This was the opening Justice JS Varma, former chief justice, Supreme Court and  News Broadcasters Standards Association (NBSA) Chairperson used for his keynote address for the session ‘Freedom of Media: Significance of self regulation’.

     

    Justice Varma said that freedom of speech is precious and we have to preserve it. The way to do so is self regulation as the media is mature enough to know to do it themselves and ward off the danger of state regulation.

     

    He said that it is not media’s right but rather an obligation to keep the people informed so that they can participate in government decision making process. It is the media’s duty to ensure transparency to ensure accountability.

     

    Justice Varma emphasised that the media should not give the government a chance to step in and hold it accountable. He said that the media (which reports) and judiciary (which decides) are the two strongest pillars of our democracy and they shouldn’t use their strength (power) to harm anyone, lest their power be curtailed due to lack of their accountability.

     

    Moving on, Justice Varma criticised the media, especially the broadcast media’s tendency for breaking news. He said that the key tenets of journalism should be kept in mind while reporting ‘breaking news’- is it true, fair and in public interest. He said that objectivity and due diligence must be applied while covering news. He cautioned the media, which has tremendous reach, to be cautious in its reporting as the effect of the news it flashes is instantaneous. He closed his address by saying “The more potential for damage, the more is the accountability you have”.

     

    The moderator, Barun Das, Zee News CEO and Vice President, News Broadcasters Association (NBA) spoke about how the media can’t be regulated as it is an essential pillar of democracy. He opined that free media can be good or bad but media which is not free can never be good.

     

    Mr Das said that regulation is a process of evolution. The media needs to introspect and understand where it stands.

     

    He outlined the dilemmas faced by the media while trying balance the content and the bottomline where news is trivialised for gaining eyeballs. The broadcast media especially is constantly grappling with trying to strike a balance between what the audience ‘would like to see’ and what they “should see”.

     

    The stage was then thrown open for the panel discussion. Each of the panellist was given time to speak and answer questions by the moderator.

     

    The discussion was opened by KVL Narayan Rao, executive vice chair person NDTV and President, NBA.

     

    Mr Rao said that there is no question of compromise on the fact that that media is free and that is the way it should be in a democracy. He said thatIndiais the largest free news market with a reach of 500 million households (news TV reaching nearly 115 million households).

     

    He said that in the early 2000s, after the private players were allowed in, they got together to set up the NBA to set up a code of programming and ethics which will regulate their broadcasting. He emphasised that it was important to have an independent and respected authority to keep a vigil on what is happening in the industry. He was proud of the fact that they telecast a scroll reminding the viewers that they have a forum to go to if they have any complaints.

     

    He also spoke about the NBSA which has been an advisory to the media with regards to improvement in news coverage and takes up issues suo moto if the media is found lacking.

     

    When questioned by Mr Das about balance or conflict on interest between news and business, Mr Rao was emphatic that there should be a “Chinese wall separating news and commercial interests”. He opined that news is to inform, educate and entertain the public independent of government and advertisers. He allowed that some compromise may take place but said that with digitisation, more cost can be spent on content and hence the scenario will change.

     

    Next to take the mike was Nitin Desai, Former under Secretary General, United Nations and member NBSA.

     

    Mr Desai started by saying that he disliked the term self regulation and “independent regulation would be a more appropriate term”. He said that emphasis should be given to developing the independent regulation in such a way that it is credible in the eyes of the media, the people and the view makers.

     

    His main concern was about the emergence of new media and challenges presented to regulate it.  He reiterated the need for due diligence to be given to fair and unbiased reporting, rights of an individual to privacy and avoiding trial by media.

     

    He said that he had already noticed a change in the fact that the mindset of the editors and the non-media members on the NBSA was converging due to the internalising the sense of responsibility.

     

    When questioned about the trivialisation of content, Mr Desai said that it was being done as the measurements showed that the audience preferred it. He said that there was a need for a different measuring system for news channels. He also opined that news channel have to stop behaving like money making operations and take responsibility to cover news that “people should know”.

     

    Phillip Turner, Chief of Bureau, CNN International, South Asia said thatIndiahad a long tradition of journalism but we tended to forget it. He emphasised that focus should be on stories that have a relevance to the rest of the world and maintaining the integrity of the media. He agreed with Mr Desai that the new media is presenting a challenge for regulation but he was of the opinion that everything would work out if the media stuck to the basic tenets of journalism – fair, relevant, responsible and accurate reporting.

     

    When asked about the need for a NBA-like worldwide authority, he wasn’t sure that such a platform could work globally.

     

    Kiran Karnik, member NBSA and former president of NASSCOM spoke about the challenges of new media. He said that today, when the news is available instantly as reported by citizen journalists and through the new media, it is the responsibility of the media to separate what is true and what is not. He also opined that news media today has shifted from reporting news to making news. He cautioned them to use the power they have responsibly by maintaining their standards and not infringing on the rights of the people.

     

    When questioned on the challenges thrown up by the new media, he agreed that technology is not amenable to censorship and also the consumer is becoming the creator and consumer. But he emphasised that there should be zero tolerance for unverified news and the news media as the aggregators of news should use their own censors.

     

    Mr Das wrapped up the session by stating that now is the time to convert challenges into opportunities and inclusive growth through media is the way forward.