SOCIAL MEDIA, FREEDOM OF SPEECH & LAW

sosial-media-law

This paper revolves around the role of the social media interaction in the 21st century and the human rights of the individuals. The goal of this paper is to show that social media is a useful and essential form of social interaction with no form of limitations and free from all restrictions.  As in the words of Salil Tripathi, ‘The premise of the virtual world is freedom. Forward- thinking companies, governments, journalists and others with a stake in freedom of expression, as well as the human rights community, must work more effectively together to ensure that the virtual world stays ahead.’ There is a current trend of the businesses and the government agencies to enable surveillance, whereby the companies are creating such tools for the government to utilize more sophisticated intrusive monitoring of the internet and the various modes of social interaction. This means that the real world is getting close to the virtual world, as such intrusion is made in an attempt to snuff out the fundamental freedoms. Instances of the encroachment of the electronic social media interaction by government officials has already started in India as had happened in the Late Shri Balasaheb Thackeray Facebook incidence at Palghar In Thane District of Maharashtra, which resulted in the arrest of the two girls. Through showing that there is need for the protection of the electronic social interaction and to protect the free thoughts of the various members of the online society, regardless of their age, gender, religion or other such classification, this research highlights the importance of freedom of expression and protection of the human rights for the development of the opinions of the individuals and the protection of the post modern world.

Introduction

Social networks today hold a vast repository of the personal information and data which is stored on the World Wide Web and is open to all. Today the social media has become a part of the normal routine of daily interaction between the individuals. All such information is stored on the net in digital form. ‘It falls to our national and international authorities to ensure that our individual rights to privacy and data protection are not sacrificed to social networks, but rather reinforced to recognize and meet the range of new challenges these powerful new media present.’[1]

The social media today provides us with many benefits as well as many disadvantages. It is an open book for all to read and learn about the various cultures, traditions and the different attitudes and personalities of the people. With this open form of discussion in the social media sites, is clubbed the right of freedom of speech and expression and the issue of the protection of these rights in the form of fundamental as well as human rights. With this new form of communication come the challenges to ensure that the internet regulations do not strangle the freedom of speech. The social media and the internet thus, has transformed into an important social and political activity.

There is a need to ensure better protection of personal integrity in social media, but in the same form the right to freedom of expression must not be undermined. There is a growing need to determine the area of protection of individual integrity (data protection) in the social media without undermining the right to freedom of expression.

‘Freedom of expression and a free media are fundamental building blocks of democracy, and the gateway to the realisation of many other human rights. Freedom of expression allows space for challenge and innovation; supports transparency and deters corruption; exposes human rights violations; and ensures that people can exchange ideas and make informed decisions.’[2]

‘Blogging[3], video-sharing and tweeting were crucial in the political events in North Africa and the Middle East in 2011. They are important to human rights defenders everywhere. But the use of these new technologies to assert old freedoms has been met with repression by some governments. A recent study of 37 countries by Freedom House[4]cites increasing website blocking and filtering, content manipulation[5], attacks on and imprisonment of bloggers, punishment of ordinary users, cyber attacks and coercion of website owners to remove content, in attempts by authoritarian states to reduce political opposition.’[6]

Of the various means of suppressing communication by Internet, the most extreme have involved simply cutting off all Internet access (Egypt, January 2011, and Syria at the time of writing),[7] or even creating a completely state-controlled mini-Net (apparently planned by Iran).[8]China has pressured search engines to distort search results. In several countries, bloggers and Internet activists have been subjected to threats and physical attack.

In India itself the government has favored the police system of control by which it has arrested the two girls in the Bal Thakeray Facebook incident[9]. In this incident Days after Bal Thackeray’s demise, Shiv Sena MP Sanjay Raut on Tuesday, Nov 20, 2012 ignited controversy over Shaheen Dhada and her friend’s arrest. Dhada committed the “crime” by writing on Facebook wall, “With all respect, every day, thousands of people die, but still the world moves on Just due to one politician died a natural death, everyone just goes bonkers.” Dhada’s friend, who has been identified as Renu, “liked” her comment and landed in the legal trouble. The two young ladies were booked under Section 295(a) of the IPC[10](Indian Penal Code) and Section 64(a) of the Information Technology Act, 2000[11]. They were later granted bail on surety of Rs 15,000 each. Shaheen Dhada, it was said, withdrew her comment and apologized.

Importance of freedom of speech and expression.

Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right.[12]The concept of the freedom of speech and expression is very essential to the protection of the privacy, integrity and the basic needs of the people. Freedom of expression, the free flow of information, and freedom and pluralism of the media have internationally been acknowledged as human rights in the post-Second World War intergovernmental instruments: the Universal Declaration of Human Rights (UDHR, 1948)[13]and the International Covenant on Civil and Political Rights (ICCPR, 1966). In both the UDHR and the ICCPR, Article 19 makes this commitment. The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Measures that the States use to interfere with the human rights in reference to the social media.

1. Blocking.

The main aim of blocking is to prevent specific Internet content from reaching a final user, a common aim is blocking images of child abuse; however, this does not obliterate the images, nor remove them from the Internet.

Blocking is also subject to “false positives”[14]and “false negatives”[15].[16]All blocking technologies reviewed in an Open Society Institute study were flawed in terms of over- or under-blocking. Most were easy to circumvent; all could be circumvented without much effort by determined people.[17] This is good news for political activists in repressive countries, but bad news for states, officials and private entities hoping to use blocking to stop dissemination of child abuse images or hate speech.[18]

2.  Censorship by Pressure.

Government officials increasingly contact authors or websites to apply pressure for content to be removed, with threats of legal action, withdrawal of contracts or licences and outright bans. YouTube and Facebook have removed or disabled activist accounts in China, Egypt, Ethiopia, Mexico and Tunisia.[19]

3. Internet Surveillance

We may think we are free and unobserved when we surf the Internet, chat with friends, send out tweets or upload video clips from our mobile phone, but in practice all this is logged.[20]

In repressive countries, the purpose of identifying those trying to access banned material may be to target opposition activists. In democracies, such surveillance may easily slip from targeting actual terrorists to those sympathetic to terrorists, or simply those with “extreme” views. For many years, anti-terrorism and emergency legislation has been extended in this way.[21]

4. Data Retention

“Data retention” refers to compulsory retention by communication service providers (including internet service providers, or ISPs) of the communication records of all their clients – beyond the normal (billing) period for keeping data – “just in case” the data might be useful in some future police or secret service enquiry. This ought to be viewed as mass surveillance of citizens without due cause: a fundamental departure from a basic principle of the rule of law.

Application Of Human Rights On The Social Media And The Protective Measures.

A. International Law.

1.  Basic legal principles.- Rule of Law.

The interrelated freedoms of communication, expression and asso­ciation are at the heart of any free, democratic society based on the rule of law. From the relevant articles (8, 10, 11)[22]of the ECHR[23], the Strasbourg Court has developed standard basic tests to be applied to restrictions placed on these rights, which must:

· ‘be based on “law”, that is on legal rules that meet quality require­ments of clarity, accessibility and foresee ability;’

· ‘serve a legitimate purpose in such a society, that is a “pressing social need”;’

· ‘be “necessary” to achieve that purpose, that is they must not be disproportionate to the purpose, nor ineffective;’

· ‘have an “effective remedy”, preferably judicial, if they do not meet these tests.’[24]

These standards are expressed in the case law of the Court and other international human rights bodies, such as the Human Rights Committee, which applies the provisions of the International Covenant on Civil and Political Rights (ICCPR).

2. The ECHR And The International Approach

The ECHR has two “due process” provisions. It requires:
·  in Article 6, that states provide a “fair trial”, with many specific guarantees, to anyone whose “civil rights and obligations” are “determined” in some forum, or faces a “criminal charge”;[25]

· in Article 13, that states provide an “effective remedy” to anyone whose ECHR rights and freedoms are violated.

3. The Convention on Cybercrime: weak reaffirmations of the basic principles

The Council of Europe Convention on Cybercrime[26], with its Additional Protocol, requires state parties to criminalize various activities in cyberspace, including “distributing, or otherwise making available, racist and xenophobic[27]material to the public through a computer system.”

 4.  The emerging Principles of Internet Governance

Certain principles stated by the Council of Europe Reykjavik Declaration and the Global Network Initiative (GNI) Principles, especially their emphasis on states’ “positive obligations” and the responsibility of information and communication technology (ICT) companies (such as ISP[28]s and search engines), make important contributions to ensuring effective respect for the human rights of online activists (and others).

Recommendations of the Council of Europe’s Committee of Ministers on measures to promote respect for freedom of expression and information with regard to Internet filters, and the May 2011 Report of Frank La Rue, the UN Special Rapporteur on Freedom of Opinion and Expression, on the promotion and protection of the right to freedom of opinion and expression, focusing on trends and challenges to all individuals’ right to seek, receive and impart information and ideas of all kinds through the Internet.[29]

5. The Reykjavik Declaration

In 2009 the Council of Europe Conference of Ministers responsible for Media and New Communication Services adopted the Reykjavik Declaration. The intention was to stress the need to ensure European human rights standards are upheld on the Internet.

The Reykjavik Declaration does not explicitly designate access to the Internet as a fundamental right, but comes close by stressing that “the notion of positive obligations developed in the case law of the European Court of Human Rights is particularly relevant in this context.”[30]Also, the Committee of Ministers had already concluded that “access to and the capacity and ability to use the Internet should be regarded as indispensable for the full exercise and enjoyment of human rights and fundamental freedoms in the information society.[31]

6. The GNI Principles

The Principles on Freedom of Expression and Privacy drawn up by the GNI[32] make an important contribution by specifically including private sector entities in these obligations.

They include somewhat basic reaffirmations of the need for compliance on the Internet with international free expression and privacy standards, and even more basic references to the need for compliance with the rule of law in matters affecting freedom of expression on the Internet.

7. Child Protection.

The Federal Trade Commission recently proposed several updates to the Children’s Online Privacy Protection Act of 1998 (COPPA). COPPA currently provides that operators of websites and other online services that collect personal information online about children under 13

B. Indian Law.

1. Women and Children.
In India, The Women and Child Ministry is planning to make changes in the Indecent Representation of Women (Prohibition) Act, 1986 to include electronic media and internet under its purview. At present the legislation only includes depiction of women in publications, and it plans to make extensions of its applicability on both women and children (both male and female).[33]

2. Computer Emergency Response Team-India (CERT-IN) and Cyber Regulations Advisory Committee (CRAC)
On January 20, 2004, the then minister for Information technology, Arun Shourie formally inaugurated the Computer Emergency Response Team-India (CERT-IN). Sec 88, of The Information Technology Act, 2000 provides for the Constitution and the powers of the Cyber Regulations Advisory Committee (CRAC).

3. Constitutional provisions.
Every citizen of India has got a Fundamental Right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Normally Fundamental Rights are inviolate and cannot be violated even by Government except in some circumstances. However, the Fundamental Right to Freedom of Speech and Expression is not absolute and is subject to Article 19(2) of the Constitution.

5.  The Information Technology Act, 2000
Internet intermediaries in India are required to follow certain due diligence requirements under the cyber law of India incorporated in the information technology act, 2000 (IT Act 2000). If they fail to observe such cyber due diligence, the safe harbour protection available under the IT Act 2000 is lost.[34]

5. Cyber laws.
National Cyber Security Database of India (NCSDI) is an initiative by Perry4Law Techno Legal Base (PTLB) to strengthen the Cyber Security Capabilities of India. Our aim is to constitute a Techno Legal Cyber Security Database of India.[35]

Conclusion.
Freedom of expression on the Internet is a fundamental freedom of our age. Together with Internet privacy, it is vital to our freedoms to communicate and associate, and to collectively determine how our societies should be run.[36]The government is under a duty to determine the area of investigation and control of the internet and the social media and also the level of control which has to be applied. It is the duty of the government to enforce the fundamental and the human rights without interfering with the freedom of the people to express themselves. There is  need to maintain the level of the privacy of the individuals who are blogging, video sharing, using twitter, commenting and liking various statements on the various social networking sites. Till there is no form of near and current danger to the government or other people there should be no form of interference with the freedom rights of the people in general. Every person has the right to express freely his/her emotions through the various forms of communication and such form of communication can be controlled only up to the limit where it does not interfere with the right to privacy of the individuals. Every person has an equal and protected right to express freely his/ her feelings, emotions and thoughts regarding the various issues which might be near to them. Thus this paper concludes that the social media interaction has to be controlled by the government, but such form of control should be such as would not interfere with the general and specific human and fundamental rights of the people, in specific, the right to freedom of speech and expression.

[1]Issue Discussion Paper Douwe Korff, Professor of International Law at London Metropolitan University, and Ian Brown, Senior Research Fellow at University of Oxford, page2.

[2]As referred to from

http://www.hrdreport.fco.gov.uk/promoting-british-values/democracy/freedom-of-expression/, on the 27th march, 2013.

[3]A blog (a portmanteau of the term web log)[1] is a discussion or informational site published on the World Wide Web and consisting of discrete entries (“posts”) typically displayed in reverse chronological order, as mentioned in http://en.wikipedia.org/wiki/Blog, referred to on the 16th march, 2013.

[4]Freedom House is an independent watchdog organization dedicated to the expansion of freedom around the world which analyze the challenges to freedom; advocates for greater political and civil liberties; and support frontline activists to defend human rights and promote democratic change.  Founded in 1941, Freedom House was the first American organization to champion the advancement of freedom globally, as had been referred to on the 16th march, 2013 from

http://www.freedomhouse.org/about-us

[5]A misuse of statistics occurs when a statistical argument asserts a falsehood. In some cases, the misuse may be accidental. In others, it is purposeful and for the gain of the perpetrator. When the statistical reason involved is false or misapplied, this constitutes a statistical fallacy as referred to on 16th march, 2013 on

http://en.wikipedia.org/wiki/Data_manipulation.

[6]This Issue Discussion Paper was prepared by Douwe Korff, Professor of International Law, London Metropolitan University and Ian Brown, Senior Research Fellow, Oxford Internet Institute, University of Oxford.

[7] “Syrian Internet shutdown”, Renesys blog, 3 June 2011, see:

www.renesys.com/ blog/2011/06/syrian-internet-shutdown.shtml.

[8] “Iran vows to unplug Internet”, Wall Street Journal Online, 28 May 2011, quotes Iran’s head of economic affairs as saying the aim is to create “a genuinely halal network, aimed at Muslims on an ethical and moral level”, largely detached from the worldwide web, as referred to from
http://online.wsj.com/article/SB10001424052748704889404576277391449002016.html.

[9]  As has been referred from http://news.oneindia.in/2012/11/20/anti-bal-thackeray-comment-shiv-sena-ignite-controversy-1101561.html on the 18th march, 2013.

[10]295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.— Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 2[citizens of India], 3[by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to4[three years], or with fine, or with both; as referred from http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.html#

Section_295A_Deliberate_and_malicious_acts_intended_to_outrage_religious_feelings or_any_class_by_insulting_its_religion_or_religious_beliefs, on the 18th march, 2013.

[11]64 of The Information Technology Act. Recovery of penalty.- A penalty imposed under this Act, if it is not paid, shall be recovered as an arrear of land revenue and the licence or the Digital Signature Certificate, as the case may be, shall be suspended till the penalty is paid. CHAPTER XI OFFENCES, as referred from http://www.indiankanoon.org/doc/1962230/ on the 18th march, 2013.

[12]Surbhi Singh, ‘the freedom of speech and expression’, referred to from http://www.goforthelaw.com/articles/fromlawstu/article16.htm, on 27th march, 2013.

[13]”Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration of Human Rights (1948).

[14]” blocking of sites with no prohibited material

[15](when sites with prohibited material slip through a filter)

[16] For examples of “over-blocking” and its causes see Brown (2008), ibid – including Pennsylvania’s Internet filtering law, struck down in 2004 partially because of over-blocking: the blocking of 400 sites had prevented access to over 1.1 million others, while being easily circumvented. The Court found no evidence that the Act “reduced child exploitation or abuse” (CDT v. Pappert, 2004).

[17]An overview of evasion technologies (proxy servers, “tunnelling”, “hosting or URL rotation”, botnets, evading DNS-based filters) is on pp. 18-19 of the Executive Summary of Callanan et al. (2009), op. cit. (note 5) – with a useful chart (p. 17) indicating the characteristics of the various blocking strategies discussed: the likelihood of over- and under-blocking; the resources and maintenance effort required for each; and the intrusiveness in terms of deep-packet inspection (DPI) requirements.

[18]See: Clayton R., “Failures in a hybrid content blocking system”, Proceedings of the 5th Workshop on Privacy Enhancing Technologies, Dubrovnik, May 2005, available at: www.cl.cam.ac.uk/~rnc1/cleanfeed.pdf.

[19] Kelly and Cook (2011), op. cit. (note 1), p. 8.

[20] Brown I. and Korff D. (2009), “Terrorism and the proportionality of Internet surveillance”, European Journal of Criminology, 6(2), pp. 119-134.

[21]See, for example, from our own experience: Korff D. (1983), “Aspects of the law regarding freedom of expression in the Federal Republic of Germany”, later used (with the author’s trial observation report on the case against Haag et al.) in the AI publication “Prosecution for the exercise of the right to freedom of expression in the Federal Republic of Germany”, AI Document EUR 23/02/85, London, 1985, or Korff D. (1986), “Criminal-legal restrictions on freedom of expression in Israel and the Occupied Territories”, used in an AI Submission to the Israeli Government later that year.

[22]“Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”

“Article 11 – Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

[23]European Convention On Human rights as was referred to from http://www.echr.coe.int/ECHR, on 28th march, 2013.

[24]See: Harris D. et al. (2009), Law of the European Convention on Human Rights, (2nd edn), Chapter 8 (Articles 8-11: General Considerations), Chapter 14 (Article 13: The Right to an Effective Remedy) and Chapter 6 (Article 6: The Right to a Fair Trial). For a simpler overview of these standards, see Korff D., “The standard approach under Articles 8-11 ECHR and Article 2 ECHR”, available from: www.coehelp.org/ mod/resource/view.php?inpopup=true&id=2130. For details of the application of these principles in the field of freedom of expression, see the Council of Europe Human Rights Handbook on Article 10, available from:

www.coehelp.org/file.php/54/ resources/Handbooks/art_10_eng.pdf.

[25]Much case law, and academic debate on the Convention, has focused on the definition of “civil rights and obligations” and “criminal charge” – the qualifying factors for “fair trial” under Article 6 (if the issue is outside them, the person can rely only on the “effective remedy” of Article 13). We do not go into this distinction here, because in practice most cases related to political activism clearly fall within Article 6: they result from (criminal) investigation, prosecution, imprisonment or harassment; because the European Court of Human Rights increasingly reads elements of the judicial protection under Article 6 into the requirements of Article 13; and because we see the distinction as anachronistic – drafted in the 1950s when many states’ due process in administrative (e.g. tax) law fell short of the “fair trial” requirements. Today, the ICCPR simply says that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” in determining any rights arising in any “suit at law” (criminal or not).

[26]“The Council of Europe, based in Strasbourg (France), now covers virtually the entire European continent, with its 47 member countries. Founded on 5 May 1949 by 10 countries, the Council of Europe seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals”, as referred from http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en, on the 25th march, 2013.

[27]This means ,’A person unduly fearful or contemptuous of that which is foreign, especially of strangers or foreign peoples’; as referred to in

http://www.thefreedictionary.com/xenophobic, on the 25th march, 2013.

[28]Internet service providers.

[29]Human Rights Council, 17th session, 16 May 2011, A/HRC/17/27:

www2.ohchr. org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

[30]Paragraph 3. See also paragraph 8: “Council of Europe member states share the responsibility to take reasonable measures to ensure the ongoing functioning of the Internet and, in consequence, of the delivery of the public service value to which all persons under their jurisdiction are entitled.”

[31]Recommendation CM/Rec(2007)16 of the Committee of Ministers on measures to promote the public service value of the Internet, at:

https://wcd.coe.int/wcd/ ViewDoc.jsp?id=1207291.

See also the Internet Governance Principles, adopted at the COE conference “Internet freedom: From principles to global treaty law”, April 2011, available in draft form at:

www.coe.int/t/dghl/standardsetting/media-dataprotection/conf-internet-freedom/Internet%20Governance%20Principles.pdf.

[32]GNI, founded in 2009, describes itself as “a diverse coalition of leading information and communications companies, major human rights organizations, academics, investors and technology leaders”, who seek to protect and advance freedom of expression and privacy in ICTs. See: www.globalnetworkinitiative.org. This page also has links to the GNI Principles, the Implementation Guidelines for the Principles, and the Governance, Accountability and Learning Framework for the Principles.

[33]’Plan to Cover Net, e-Media in Indecent Representation Act’, FILED ON: SEP 17, 2012 22:04 IST, from

http://news.outlookindia.com/items.aspx?artid=775519

[34]As referred to from http://cyberlawsinindia.blogspot.in/, on the 28th march, 2013.

[35]As referred to from http://perry4law.co.in/ncsdi.html, on 28th march, 2013.

[36] This Issue Discussion Paper was prepared by Douwe Korff, Professor of International Law, London Metropolitan University and Ian Brown, Senior Research Fellow, Oxford Internet Institute, University of Oxford.

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