INTRODUCTION
The discipline of law has constantly faced the challenge posed by special endeavors to the general rules of law. While at times, developments of the special endeavors have led to the development of specialized areas of law, it has also faced constant challenge from those who advocate that law should be general in its character and creating specialized fields leads to what may be called ‘multidisciplinary dilettantism’.2 In the initial years of development of law of cyberspace, when faced with the question, ‘Is there a law of cyberspace?’ Justice Easterbrook gave the famous remark that there was no more the ‘law of cyberspace’ than there was the ‘law of the horse’.3 Since then, cyberspace has increasingly posed new challenges in the operation of law and regulation. Many scholars and most importantly, Prof. Lawrence Lessig has articulated the unique regulatory problems that are brought to the light due to the growth of cyberspace activities.4
This academic exchange between Easterbrook and Lessig did not lead to any
1. Shreya Singhal v. Union of India, Writ Petition (Criminal), 167 of 2012 (Supreme Court).
2. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 207 University Chicago Law Forum (1996) (“We are at risk of multidisciplinary dilettantism…Put together two fields about which you know little and get the worst of both worlds…This should make us hesitate to prescribe legal adaptations for cyberspace.”) (emphasis added)
3. Id., at 208 (“Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on ‘The Law of the Horse’ is doomed to be shallow and to miss unifying principles”)
4. After a few years, Prof. Lawrence Lessig, in a response to Justice Easterbrook, argued that cyberspace poses unique challenges to the law. See generally Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harvard Law Review, 501 (1999); See also Lawrence Lessig, Code Version 2.0 (2006).
particular conclusion. However, over last few years, cyberspace has continued to pose challenges to general areas of law, which apply to cyberspace as they apply to any other transaction or medium. There have been multiple conventional rationales of free speech.5 However, Cyberspace has posed unique challenges to the conventional free-speech frameworks.6 In the age of cyberspace, increasingly, the freedoms are being enforced technologically.7 In these times of technologically enforced freedoms, freedom concerns the ability to participate in the process of production and distribution. The most important distinction that the Internet infrastructure has brought is the ‘disintermediation’ and the resultant democratization of production and distribution process8. Freedoms that rely on infrastructure can be controlled by controlling the infrastructure.9 These unique features of cyberspace also change the way free-speech constitutional challenges are adjudicated.10
In 2013, the Supreme Court of India was faced with certain special challenges to the fundamental right to freedom of speech and expression posed by cyberspace in the case of Shreya Singhal v. Union of India.11 This article is aimed at
5. J.B. Bury, History of Freedom of Thought, 239 (1919): (a) Self-governance rationale: Democracy assumes that we govern ourselves. Free-expression is indispensible to the unfettered exchange of ideas necessary for self-governance. Further, it also curbs the violence as the dissenters would less willing to resort to violence if sufficient freedom of speech is given to them. It also serves to check the abuse of the powers of the officials enjoying power; (b) Market place rationale: free speech is necessary to determine the truth. This rationale gives rise to the market place of ideas theory of freedom of speech. Therefore, the truth is not ex-post determination, but only based on the range of the acceptability of a certain idea; (c) societal tolerance rationale: free speech cultivates the virtues of societal tolerance and self-reliance. Therefore, freedom is not only with respect to the thought we agree with, but freedom for expressing the thought we hate. In an increasingly culturally diverse society, these virtues may be necessary for societal preservation; (d) self-development rationale: free speech is very essential for realization by a human being of his true character and potentialities. Free expression is necessary for the development of ideas, mental exploration and affirmation of the same. This rationale sees the free expression as the supreme condition for the mental and moral development; See also United States v. Schwimmer, 279 US 644 (1929); Abrams v. United States, 250 US 616 (1919).
6. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79(1) New York University Law Review, 1 (2009).
7. Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 Pepperdene Law Review 427, 432 (2009).
8. Diane Rowland, Uta Kohl & Andrew Charlesworth, Information Technology Law, 71 (4th edn., 2009)
9. Professor Lawrence Lessig, among others, understood these problems early on. See Lawrence Lessig, Code and Other Laws of Cyberspace (1999) (arguing that the internet can be used as a means of regulation and control)
10. William Fisher, Freedom of Expression on the Internet, Berkman Centre Blog (14th June, 2001) available at http://cyber.law.harvard.edu/ilaw/Speech/ (last visited on 25th January, 2016).
11. Shreya Singhal v. Union of India, Writ Petition (Criminal), 167 of 2012 (Supreme Court) [Hereinafter “Shreya Singhal”]
understanding this very interface between fundamental right to speech and expression, and cyberspace. The Supreme Court of India in Shreya Singhal struck down Sec. 66A of the Information Technology Act, 2000 on the grounds of vagueness. Shreya Singhal is the first step in the constitutional engagement of the Supreme Court with cyberspace. At the heart of this article lies the inquiry - whether the Supreme Court in Shreya Singhal case creates a cyberspace specific free speech standard? Several challenging constitutional questions pertaining to cyberspace are yet to come. This inquiry proposed above is very important to determine the contours of constitutional free speech protection on cyberspace. In order to delve deeper into this inquiry, the author will also conduct a comparative analysis of Shreya Singhal with early cyberspace free speech cases in the U.S.
The article is divided into two parts. Part I deals with the impact of Shreya Singhal on cyberspace specific free speech protection. Part II deals with the early U.S. cases of free speech on cyberspace and compares it with analysis in Shreya Singhal. The central argument of the article is that after the decision in Shreya Singhal, there is indeed a separate free speech standard for cyberspace, and that the Indian standard is less protective of free speech on cyberspace, unlike the cyberspace-specific jurisprudence developed in the U.S.
I Medium Distinction: How Does it Affect Article 19(1)(a) ?
“The virtues of the electronic media cannot become its enemies.”
Nariman J., Shreya Singhal v. Union of India12
1. Does Medium Matter?: Cricket Association of Bengal13 case
One of the preliminary arguments that was made by the respondents in Shreya Singhal is that the restrictions on freedom of speech on Internet are not bound by Article 19(2), as it is a separate medium altogether. The Supreme Court did not adopt this argument. In order to reject this proposition, the court relied on
12. Shreya Singhal v. Union of India, Writ Petition (Criminal), 167 of 2012 (Supreme Court).
13. Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236 [Hereinafter “Cricket Association of Bengal”]
Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal.14
In Cricket Association of Bengal,15 the apex court held that right to acquire and disseminate information forms part of freedom of speech and expression. The rationale for this holding was that it was the best way to find a trusted model of anything; since it is only through it that the widest possible range of ideas can circulate. Further, the court also held that the acquisition or dissemination of the information need not take place through any specific medium, and that the fundamental right is applicable to any kind of medium: “The ‘right to communicate’ includes right to communicate through any media that is available whether print or electronic, or audio visual such as advertisement, movie, article speech etc.”16
Based on this observation in Shreya Singhal, it was concluded that the fundamental right under 19(1)(a) is also applicable to speech and expression through the medium of Internet. Prima facie, this conclusion of the court seems obvious and the argument claiming otherwise futile. However, this raises some interesting questions with respect to the applicability of Art.19(1)(a) to cyberspace. At the heart of the inquiry lies distinction between these two propositions: (A) Article 19(1)(a) is applicable to cyberspace, and (B) Article 19(1)(a) is medium-neutral. While the first proposition is limited to mere ‘applicability’ of Article 19(1)(a), the second proposition would also mean that the ‘same standard’ to be applied to all the media. The question then arises is, can the holding in Shreya Singhal be extended to conclude that right to freedom of speech and expression is medium neutral?
The distinction between these two propositions will affect the cyberspace free speech jurisprudence in years to come as cyberspace poses new challenges to free speech jurisprudence. In order to understand the distinction, I propose to look into the arguments raised by the respondents and the petitioners respectively in the hearings.
14. Id.
15. Id.
16. Id.
2. Shreya Singhal: What about the Medium of Cyberspace?
While respondents unsuccessfully challenged the applicability of Article 19(1)(a) to cyberspace, the petitioners argued that creating special offences and lowering procedural safeguards for the Internet medium and thus distinguishing the medium of internet from other media violate Art.14 as there is no “intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication.”17
These two arguments were made in two different contexts: respondent’s argument pertained to the application of Article 19, while petitioners’ arguments pertained to treating these mediums equal under Article 14. The court clearly rejected the respondent’s contention holding that control over electronic medium “can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures.”18 At the same time, the court also conceded that electronic medium “may warrant a greater regulation over licensing and control and vigilance on the content of the program telecast.”19
In response to the petitioners’ arguments about Article 14 violation, the court held that Internet can be distinguished from other mediums and that there is intelligible differentia between Internet and other mediums. In order to hold that Internet is a distinct medium, the court relied on the following factors: “global reach of Internet”, “impossibility of pre-censorship” as everyone can publish their own content, “possibility of the use of new technologically advanced methods to modulate the content”, “lack of code of ethical conduct” and “individualized production” (of the content).20 Further, when it was argued that the procedural
17. Para. 5, Id.
18. Para 28, Id.(“As stated, all the above factors may make a distinction between the print and other media as opposed to the Internet and the legislature may well, therefore, provide for separate offences so far as free speech over the Internet is concerned. There is, therefore, an intelligible differentia having a rational relation to the object sought to be achieved – that there can be creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication. Thus, an Article 14 challenge has been repelled by us on this ground later in this judgment. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”(emphasis added”) (emphasis added).
19. Para 29, Id.
20. Para 27, Id.
safeguards available for similar offences committed through non-internet media such as newspapers etc. (under Indian Penal Code) are not available for the offences under the Information Technology Act, the court held that “[t] his procedural safeguard does not apply even when a similar offence may be committed over the internet where a person is booked under Section 66A instead of the aforesaid Sections [Offences under the IPC]”.21 Therefore, the court allowed harsher punishments and lower procedural safeguards with respect to the medium of Internet.
Article 19: Far from “Medium-neutrality”?
This analysis of paragraph 27-29 of Shreya Singhal takes us back to the initial question i.e. the distinction between these two propositions: (a) Art.19 is applicable to cyberspace, and (b) Article 19 is medium-neutral. Clearly, the court positively asserted the first proposition. It may be easily mistaken to take the approval of the first proposition as the approval of the second proposition as well.
A combined reading of the court’s analysis of Article 19 and Article 14 makes it clear that since the court specifically asserts that the electronic medium may warrant a greater regulation, it refrained from holding that Article 19 is medium-neutral. Therefore, Shreya Singhal cannot be held to have adopted the second proposition, but only the first one. The question that arises is if Article 19 is not medium neutral, in what ways can the ‘cyberspace’ factor affect the determination of constitutionally permissible restrictions on free speech? In the next section, I will identify the avenues where the fact that the act of speech or expression was made through the medium of cyberspace, can affect the outcome of judicial determination under Article 19.
‘V.G. Row’ Test of Reasonableness and Cyberspace
Article 19 requires the determination of reasonableness. The locus classicus on the standard of reasonableness, V.G. Row v. State of Madras22 laid down that the
21. Para 99, Id.
22. V.G. Row v. State of Madras, AIR 1952 SC 196 [Hereinafter “V.G. Row”]
following factors will be relevant in determining “reasonableness”: “the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”23 The test laid down in V.G. Row was also upheld in Papnasam Labour Union24 and in many subsequent cases.
The factors making cyberspace a distinct medium are already mentioned above. In reasonableness analysis, the fact that speech takes place on cyberspace plays a major role. If we go by the factors listed in VG Row25 test, the arguments can be made that the extent and urgency of the evil sought to be remedied can change merely because of the cyberspace. In fact, the courts may proceed with the assumption that the urgency and the extent of the evil will automatically be of greater degree on cyberspace than on other media. Similarly, in deciding whether the imposition is disproportionate, the fact that the act of speech is made on cyberspace may lower the threshold of disproportionality.
ther places where the fact that speech is made on cyberspace instead of other media will make difference in Article 19(2) analysis are the specific grounds of restrictions mentioned under Article 19(2). For instance, the fact that the statement was made online may affect the determination of “public order” as the pervasive nature of cyberspace may make it available to exponentially high number of people, making it an imminent threat. A good example can be that of the impact of SMS technology in affecting the large-scale exodus from Bangalore of people from the north-eastern states26. Therefore, it is submitted that as per the ruling of Shreya Singhal, Article 19(1)(a) is not medium neutral. Though Nariman J. held that Article 19(1)(a) is applicable to cyberspace as it is applicable to other media, it is submitted that when a particular restriction n cyberspace speech will be subject to a constitutionality challenge on the grounds
23. Id.
24. Papnasam Labour Union v. Madura Coats Ltd. (1995) 1 SCC 501.
25. V.G. Row v. State of Madras, AIR 1952 SC 196.
26. After Rumours, Northeast People Flee Bangalore, The Hindu (16th August, 2012) available at http://www.thehindu.com/news/national/karnataka/after-rumours-northeast-people-flee-bangalore/article3776549.ece (last visited on 28th January, 2016)
of Article 19, the medium-distinction will play a role in determination of “reasonableness”, and the scope of the grounds under Art.19(2).
Therefore, the Supreme Court, while holding that cyberspace is not like other media, and that different standards can be applied to cyberspace speech, opened the possibility of creating separate jurisprudence specifically with respect to cyberspace. This means that greater restrictions can be imposed on cyberspace speech as opposed to other media. Indeed, as per this analysis, the virtues of cyberspace may become its enemies. Procedural safeguards are if not more, at least, as relevant as substantive standards with respect to free speech. By allowing lower procedural safeguards, specifically with respect to blocking of websites, the court has set a lower threshold for cyberspace speech, thus carving a niche for cyberspace in the broader free speech jurisprudence. In the following section, the researcher will compare the Constitutional adjudication concerned with the interaction between the cyberspace and the First Amendment of the U.S. Constitution.
II. The United States Jurisprudence: Cyberspace Specific Free Speech Protection
1. Comparativism and Freedom of Speech: A New Niche Carved by Nariman J.
In many of the earlier cases, the Indian Supreme Court has often showed skepticism in applying the U.S. jurisprudence to the Indian free speech cases.27
27. See Indian Express Newspapers (Bombay) Private Limited v. Union of India, (1985) 2 SCR 287 (“While examining the constitutionality of a law which is alleged to contravene Article 19 (1) (a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country, we may take them into consideration. The pattern of Article 19 (1) (a) and of Article 19 (1) (g) of our constitution is different from the pattern of the First Amendment to the American Constitution which is almost absolute in its terms. The rights guaranteed under Article 19 (1)(a) and Article 19 (1)(g) of the Constitution are to be read along with clauses (2) and (6) of Article 19 which carve out areas in respect of which valid legislation can be made.”) (emphasis added). See also Kameshwar Prasad v. The State of Bihar, 1962 Supp. (3) S.C.R. 369 (“As regards these decisions of the American Courts, it should be borne in mind that though the First Amendment to the Constitution of the United State reading ‘Congress shall make no law.... abridging the freedom of speech...’ appears to confer no power on the Congress to impose any restriction on the exercise of the guaranteed right, still it has always been understood that the freedom guaranteed is subject to the police power - the scope of which however has not been defined with precision or uniformly. It is on the basis of the police power to abridge that freedom that the constitutional validity of laws penalising libels, and those relating to sedition, or to obscene publications etc., has been sustained. The resultant flexibility of the restrictions that could be validly imposed renders the American decisions inapplicable to and without much use for resolving the questions arising under Art. 19(1) (a) or (b) of our Constitution wherein the grounds on which limitations might be placed on the guaranteed right are set out with definiteness and precision.”)(emphasis added).
Free speech comparativism has been rejected mainly for the reason that decisions on the First Amendment of the U.S. do not have any bearing on Indian framework, because while this amendment is absolute in terms and it contains no exception for the exercise of the right, the grounds of restrictions are expressly provided in Article 19(2).28
This statement however does not represent the correct situation in the U.S. because though the First Amendment is absolute in its terms, it has been judicially established from the outset that the exercise of all these rights is subject to regulation by the State under its sovereign ‘police power’ which enables it to protect the interests of the community, by resorting to reasonable regulation.29 The only reason to incorporate the grounds in Article 19(2) was to expressly limit the specific grounds rather than rely on the broad notion of ‘police powers’.
Therefore, as also held in Shreya Singhal, by laying down the specific grounds, Article 19(2) also restricts the scope of ‘police powers’.30 The clear implication of J. Nariman’s argument seems to be that freedom of speech protection is broader under the Indian Constitution than in the U.S. and therefore, the U.S. doctrines and precedents cannot altogether be ignored merely on the ground that no express restrictions are mentioned in the text of the First Amendment.31
ACLU Case: Technologically-Driven Approach
In Reno v. ACLU,32 for the first time in the U.S., the interface between ‘First Amendment free speech right’, and ‘cyberspace’ came into question. The ACLU
28. Durga Das Basu, Vol. 2, Commentary on the Constitution of India, 2401 (8th edn., 2007).
29. K.A. Abbas v. Union of India, AIR 1971 SC 481.
30. Shreya Singhal, Para 17.
31. Gautam Bhatia, The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again, Indian Constitutional Law and Philosophy, (26 March, 2015) available at, https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect (last visited on 23rd January, 2016).
32. Reno v. ACLU, 117 S. Ct. 2329 (1997).
case assessed the constitutionality of two statutory provisions that criminalised indecent speech aimed at minors on the Internet. Like in Shreya Singhal, and unlike earlier First Amendment cases, the fact that the provision pertained to cyberspace medium got this case considerable attention.33 Stevens J. stressed on the characteristics of Internet, as distinct from other mediums, which almost mirrors the observations of Justice Nariman in Shreya Singhal:
The Internet is a unique and wholly new medium of worldwide human communication as human thought, and is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services… [C] yberspace is located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet…[I]nternet is the most participatory medium in history given the low barriers to access and the parity of speaker and listener.”34 (emphasis added)
Though the characterization of cyberspace in ACLU is almost the same as in Shreya Singhal, there was a key difference, which creates a huge gap between the U.S. and the Indian cyberspace free-speech jurisprudence. The principle reason for Justice Stevens’ holding the statute unconstitutional was that it “suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. It chills adult free speech because it is technologically impossible for adults to ensure that minors are not able to see their speech on the boundary less Internet.”35 (Emphasis added) Therefore, the stress on technology was in fact used to protect the speech. Arguably, the statute would be constitutional had it been any other medium where it is “technologically possible” for the adults to monitor or if the medium had not been “boundary less”. In Shreya Singhal, the Supreme Court’s opinions seem to indicate that these liberating features of cyberspace may in fact be justification for “greater regulation”.36 In ACLU, contrastingly, the medium-based argument was in fact used for justification of greater protection of cyberspace i.e. since Internet
33. Mark S. Kende, The Supreme Court's Approach to the First Amendment In Cyberspace: Free Speech as Technology's Hand-Maiden, 14 Constitutional Commentary 465 (1997).
34. Reno v. ACLU, 117 S. Ct. 2329 (1997).
35. Id
36. Shreya Singhal v. Union of India, Writ Petition (Criminal), 167 of 2012 (Supreme Court).
provides platform for such a large scale of speech, the chilling effect on the medium will also be much greater.37
Kende, in his article, The Supreme Court's Approach to the First Amendment In Cyberspace,38 calls this approach of relying on technological features of cyberspace as “technology driven first amendment approach”. In fact, he raises the concern that in order to protect the speech on cyberspace, the courts diverted from the grounds like vagueness and overbreadth and instead adopted higher scrutiny for cyberspace speech:
“The Court in both cases was driven by the Internet's brilliant capabilities to insulate technology from government restraint. Thus, unlike earlier Court decisions that limited regulation of the media, like print, in order to protect free speech, the Court in the Internet cases uses free speech principles to protect the medium.”39 (emphasis added)
In Shreya Singhal, the court did the exact opposite. The judgment focused on vagueness and overbreadth instead of what Kender calls “technology driven first amendment approach”, which also affords special first amendment protection to speech over cyberspace. As liberating the judgment is, mainly because of its immediate outcome such as striking down of draconian Section 66A,40 it looks ominous for cyberspace-friendly free speech jurisprudence as not only have they refused to adopt the American “technology driven approach”, the Court went a step ahead and held that greater restrictions can be put on speech over cyberspace.
III. Applying Market-place Approach to Cyberspace: A Justification for Greater Protection?
Another element that went missing in Shreya Singhal was analysis of “market space” approach with respect to cyberspace. The court relied on the classical cases, which adopted this approach in the U.S. context: Abrams v. United States,41
37. Reno v. ACLU , 117 S. Ct. 2329 (1997).
38. Mark S. Kende, supra note 32, at 465.
39. Id., at 473.
40. Lawrence Liang, Free Speech Ver. 2.0., The Hindu (March 25th, 2012) available at http://www.thehindu.com/opinion/op-ed/free-speech-ver20/article7028787.ece (last visited on 25th January, 2016).
41. See Abrams v. United States, 250 US 616 (1919).
and Whitnet v. California42. ‘Marketplace of ideas’ approach as described in Abrams is as follows:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”43 (emphasis added).
It is submitted that the market-place approach was adopted in the Indian jurisprudence in the case of Khushbo v. Kanniamal.44 In this section, I will answer a specific question: if we adopt this approach, then in what cases should the state interference become necessary? At times, speech may be restricted because the market of speech may not be really as free. Due to excessive editorial gate-keeping involved in the traditional media of speech, including newspapers etc., the market needs to be regulated. For instance, if there is harm to someone’s reputation due to what is printed in a newspaper, it is important that there is greater regulation of such speech as the other person may not have access to equally powerful architecture of free speech. 45
However, the circumstances are not the same with respect to cyberspace. It is submitted that the market at cyberspace is comparatively different. The market in cyberspace is more efficient in the sense that access to architecture of speech and expression is much greater and much more widespread than other media.46 Therefore, the medium of cyberspace gives even lesser of the justification for curbing freedom of expression. Thus, the line between ‘harm’ and ‘offence’
42. Whitney v. California, 71 L. Ed. 1095
43. Abrams v. United States, 250 US 616 (1919).
44. Khushboo v. Kanniamal, (2010) 5 SCC 600.
45. William Fisher, Freedom of Expression on the Internet, Berkman Centre Blog (14th June, 2001) available at http://cyber.law.harvard.edu/ilaw/Speech/ (last visited on 25th January, 2016). (“[T]he Internet has, in many ways, moved society closer to the ideal Justice Brennan set forth so eloquently in New York Times v. Sullivan, 376 U.S. 254 (1964). It has not only made debate on public issues more ‘uninhibited, robust, and wide-open,’ but has similarly invigorated discussion of non-public issues. By the same token, the Internet has empowered smaller entities and even individuals, enabling them to widely disseminate their messages and, indeed, reach audiences as broad as those of established media organizations.”) (emphasis added)
46. Id.
substantially shifts on cyberspace. Most of the offence-based harm can be mitigated due to access and participation that cyberspace provides. Cyberspace is more participative.
herefore, an offensive content affecting someone’s reputation may be easily tackled through generating counter-narratives on cyberspace than on other media. Thus, this provides another ground for applying higher standards of scrutiny for restriction of free speech instead of the lower standard laid down in Shreya Singhal. The protective mood of the courts while applying First Amendment to online speech in its initial days may have played a significant role for the growth of these online platforms can be understood.47 Though Shreya Singhal seems to be hail-worthy if we only restrict ourselves to the immediate outcomes of the case, the apex court’s holding that greater regulation or restrictions can be imposed on cyberspace will definitely affect the future litigation.
In this case, we should recognize that the contribution is essentially made to the doctrine of vagueness and overbreadth instead of cyberspace speech protection. Therefore, it is high time that we recognize technology driven approach for freedom of speech instead of the current approach of relying on vagueness and overbreadth as the former approach furthers free speech more than the latter approach does. Though it holds Article 19(2) is applicable to cyberspace speech, by holding that greater restrictions are permissible merely based on the medium, Shreya Singhal closes as many doors as it opens.
CONCLUSION
Free speech concerns in cyberspace are not merely a new drink in the old bottle. Cyberspace factors such as scale, manipulation, greater chilling effect,
47. Jack M. Balkin, supra note 7, at 427 (“The latest incarnation of Silicon Valley can be attributed to a decision in 1789 and efforts to give it life two centuries later. When James Madison first proposed what became the First Amendment to the United States Constitution, he could scarcely have imagined the world of Facebook, Flickr, Google, Pinterest, and Twitter. But the American constitution’s free speech guarantee would help usher these companies into being at the dawn of the Millennium. In turn, the free speech guarantee would itself be reincarnated, bringing the United States and the world closer to the ability of ordinary persons to talk to each other.”) (emphasis added)
connectivity, role of new intermediaries etc. create sui generis concerns for the free speech jurisprudence. Therefore, free speech jurisprudence is not only to be applied to cyberspace, but also to be carefully modified. It may be for good or for bad, depending on the approach that the courts take in the application of Art.19(1)(a) and Art.19(2) standards to the cyberspace questions. As the comparison of the Indian and the U.S. jurisprudence with respect to cyberspace free speech shows, the characteristics of Internet may provide justification for both, greater regulation or greater protection.
While the U.S. jurisprudence provides greater protection to cyberspace on the basis of these characteristics of Internet, the Indian jurisprudence, after Shreya Singhal, paves the path for greater regulation of cyberspace. Therefore, in order to answer the question raised at the beginning of this paper, it can be concluded that in Shreya Singhal, India has adopted a cyberspace specific free speech standard, which is less protective that the standard applied to other media.
Further, free speech concerns of cyberspace are not merely based on content censorship, but also subtle architectural controls, which may, at times, substantially affect the speech flow. Finally, mere constitutional adjudication is not sufficient for sufficient protection of speech protection on cyberspace. The decisions made by legislatures, administrative agencies, technologists, entrepreneurs, and end-users may also affect the cyberspace culture of free speech. Though the technical designs and regulatory decisions may directly affect the free speech values, the role played by the judicial elaboration of constitutional precedents cannot be underplayed. |
