CONTENTS

S.NO CHAPTERS PAGE

NO.
1. INTRODUCTION 4-5

2. SOCIAL MEDIA 6

3. FREEDOM OF SPEECH AND EXPRESSION ON 7-11

SOCIAL MEDIA

1|Page
 4. CYBER LAW IN INDIA AND SOCIAL MEDIA 12-16

5. 16-17
INSTANCES OF ALLEGED ABUSE ON

SOCIAL MEDIA

6. CASE STUDY OF HATE SPEECH ON SOCIAL 17-19

MEDIA

7. HATE CRIME 20-24

8. CONCLUSION 25

INTRODUCTION
Hate speech is a speech, delivered by a person in a way that creates hatred in the minds of the
people towards some specific group of people. The speech that is given is full of harsh and
ridiculed words and is specifically meant to demean a particular group of people.

Hate speech consists of verbal and nonverbal expression that is used to demean, oppress, or
promote violence against someone on the basis of their membership in a social or ethnic group.
Hate speech involves more than simply indicating that you dislike someone. It also is different
than simply teasing or ridiculing someone, or shouting an ugly word at them in a single moment
of anger or frustration.1

www.bsu.edu, learning from hate, “Learning from a legacy of hate” web. 25 Apr. 2013.
1

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Hate speech is a term for speech intended to degrade person group of people their race , gender,
age , ethnicity, nationality , region sexual orientation ,gender identity, disability , language
ability ,ideology ,social class, occupation, appearance(height, weight, colour , etc., mental
capacity) and any other distinction that might be consider by some as liability the speech
ordinarily involves lies, deception, misdirection, logical fallacies. Out of citation or quotes,
“cherry picking”, denial, conspiracy theories, and derogatory terminology. It may involve true
facts, but they’re generally perverted to such an extent that the conclusion it derives is very
different from what the fact are meant to show.

Hate speech and hate writing are to mechanism that have been systematically used in recent
times, during and after elections, whip up anti- minority hatreds and in many cases, actual
violence. The above law relating to hate speech in India do not restrict the freedom of free
speech and expression, but rather safeguard it . These laws are used against minorities and other
communities in India, and it is constitutional mandate of the government to protect the interest of
such religion and social minorities. the regular application of these section is vital to upholding
the secular intent of the constitution of India, as enshrined in its Preamble.2

In many cases, hate speech is created by people who are part of a majority population. Their
messages typically are directed toward people who are part of a minority population. The targets
of hate speech are chosen just because they belong to that particular group of people. The
messages of hate also are designed to degrade or otherwise harm these targets for the same
reason. Hate speech is, outside the law, communication that vilifies a person or a group on the
basis of colour, disability, ethnicity, gender, nationality, race, religion, sexual orientation, or
other characteristic. In law, hate speech is any speech, gesture or conduct, writing, or display
which is forbidden because it may incite violence or prejudicial action against or by a protected
individual or group, or because it disparages or intimidates a protected individual or group. The
law may identify a protected individual or a protected group by disability, ethnicity, gender,
gender identity, nationality, religion, race, sexual orientation or other characteristic. In some
countries, a victim of hate speech may seek redress under civil law, criminal law, or both.

2
http://www.ohchr.org/Documents/Issues/Expression/ICCPR/Bangkok/TeestaSetalvadPart2.pdf

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Just about anyone can be a target of hate speech. Some people might become targets because
they are of a particular race, nationality, or religion. Other people could be targeted because they
are disabled in some way, or because of their gender, age, or sexual orientation.

India is one of such paradises on earth where you can speak your heart out without the fear of
someone gunning you down for that, or, it has been until now. Even if the situation of Indians is
a lot better than that of their fellow citizens of other nations, the picture is not really soothing or
mesmerizing for Indians any more. This observation is being made with regard to the exercise of
the right of freedom of speech and expression in the context of social media and the hurdles
placed on that by the arbitrary use of the so called cyber laws of the nation, particularly Section
66A of the Information Technology Act, 2000.
Before delving into the issue in details, it is but desirable to first understand the concepts of
social media and freedom of speech and expression.

SOCIAL MEDIA

Social media comprises primarily internet and mobile phone based tools for sharing and
discussing information. It blends technology, telecommunications, and social interaction and
provides a platform to communicate through words, pictures, films, and music. Social media
includes web- based and mobile technologies used to turn communication into interactive
dialogue.

Social media can be defined as any web or mobile based platform that enables an individual or
agency to communicate interactively and enables exchange of user generated content. Andreas
Kaplan and Michael Haenlein define social media as “a group of internet- based applications that

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build on the ideological and technological foundations of Web 2.0, and that allow the creation
and exchange of user- generated content.” “Web 2.0” refers to Internet platforms that allow for
interactive participation by users. “User generated content” is the name for all of the ways in
which people may use social media. The Organization for Economic Cooperation and
Development (OECD) specifies three criteria for content to be classified as “user generated:” (1)
it should be available on a publicly accessible website or on a social networking site that is
available to a select group, (2) it entails a minimum amount of creative effort, and (3) it is
“created outside of professional routines and practices.”

Another variant of social media is mobile social media i.e. when social media is used in
combination with mobile devices it is called mobile social media. Due to the fact that mobile
social media runs on mobile devices, it differentiates from traditional social media as it
incorporates new factors such as the current location of the user (location-sensitivity) or the time
delay between sending and receiving messages(time-sensitivity).

FREEDOM OF SPEECH AND EXPRESSION ON SOCIAL

MEDIA

Article 19 (1) (a) of the Constitution of India also confers on the citizens of India the right “to
freedom of speech and expression”. The freedom of speech and expression means the right to
express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or
any other mode. It also includes the right to propagate or publish the views of other people.
The term ‘freedom of speech and expression’ includes any act of seeking, receiving and
imparting information or ideas, regardless of the medium used. Based on John Milton’s
arguments, freedom of speech is understood as a multi- faceted right including not only the right

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to express or disseminate information and ideas but also including the right to seek, receive and
impart information and ideas.

The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been witnessed
who are advocating for change, justice, equality, accountability of the powerful and respect for
human rights. In such movements, the Internet and Social Media has often played a key role by
enabling people to connect and exchange information instantly and by creating a sense of
solidarity.

Emphasising the importance of internet, the UN Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression in his Report, which was submitted
to the Human Rights Council, stated that the internet has become a key means by which
individuals can exercise their right to freedom and expression and hence, internet access is a
human right.

Report further stressed that States should ensure that internet access is maintained at all times,
even during times of political unrest. The States were also reminded of their positive obligation
to promote or to facilitate the enjoyment of the right of freedom of expression and the means
necessary to exercise this right, including the Internet. The States were also asked to adopt
policies to make the Internet widely available, accessible and affordable to all.
The UN Human Rights Committee has also tried to give practical application to freedom of
opinion and expression in the radically altered media landscape, the centre stage of which is
occupied by the internet and mobile communication. Describing new media as a global network
to exchange ideas and opinions that does not necessarily rely on the traditional mass media, the
Committee stated that the States should take all necessary steps to foster the independence of
these new media and also ensure access to them. Moreover, Article 19 of the UDHR and Article
19(2) of the ICCPR also provides for freedom of speech and expression even in case of internet
and social media.
Thus, it is seen that freedom of speech and expression is recognized as a fundamental right in
whatever medium it is exercised under the Constitution of India and other international
documents. And in the light of the growing use of internet and social media as a medium of

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exercising this right, access to this medium has also been recognized as a fundamental human
right.

RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION

The freedom of speech and expression does not confer on the citizens the right to speak or
publish without responsibility. It is not an unbraided license giving immunity for every possible
use of language and prevents punishment for those who abuse this freedom. Article 19(3) of the
ICCPR imposes restrictions on the following grounds:
(a) For respect of the rights of reputations of others
(b) For protection of national security, or public order, or public health or morals.
As per Article 19(2) of the Constitution of India, the legislature may enact laws to impose
restrictions on the right to speech and expression on the following grounds:
(a) Sovereignty and integrity of India
(b) Security of the State
(c) Friendly relations with foreign States
(d) Public order
(e) Decency or morality
(f) Contempt of court
(g) Defamation
(h) Incitement to an offence
Censoring Social Media
Information is a buzz word today. It is essential to march along with the progressive trends in
today’s world. Technology savvy world with an increasing capacity for communicating,
simplifying and storing information with amazing speed has put information at the core of
development. There can be no democratic participation in decision making without transparency
and sharing information. Social media has the power to reach the masses and distribute
information, which in turn has resulted in everyone acting as a watchdog, scrutinizing the
powerful and exposing mismanagement and corruption.

Till recently, governments across the globe have tried to withhold information from the common
man on one pretext or another. And, now with the advent of social media with immense power of

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delivering information to the masses, is perceived as a threat by Governments who are carefully
trying to regulate it. Internet has become the basis of modern civilization due to its limitless
possibilities and widespread reach. As it is quite instrumental in the storage and dissemination of
information and opinion, it has acquired a unique role in the functioning of democracies all over
the world. Through social media and internet, the citizens can unite despite territorial limitations.
Although everyone is not physically present, the force of the protest is not diminished in any
way. Thus, it is evident as to why Governments across the world seek to censor the internet.

Again, apart from its beneficial role, Internet is open to misuse as well, which gives the State a
justification to regulate online content in the interests of the public at large. Several cyber-
crimes, defamation, invasion of privacy, incitement of offences, racist remarks, stalking, abuse,
hacking, harassment and many more can be easily committed through social media and once
such objectionable content is uploaded, it becomes viral and consequently, very difficult to
contain. Hence, the importance of the State regulating social media also cannot be denied.

As long as the interests of people, either individually or collectively are taken care of, there can
be no objection to government regulation but the problem arises when, in the name of regulation,
it starts censoring i.e. encroaching upon the civil rights of the people viz. freedom of speech and
expression etc. Although there are safeguards in this regard, every State tends to surpass them in
some way though its magnitude may vary from State to State.

China is the leader in Internet censorship. It has an elaborate mechanism in place to effect
censorship known as “Great Firewall of China” and officially as “Golden Shield Project”.
Blocking web- pages with objectionable content is the regular mode of internet censorship.

Coming to India, according to the Freedom House’s latest report ‘Freedom on the Net, 2012’,
India's overall Internet Freedom Status is “Partly Free”. India has secured a score of 39 on a scale
from 0 (most free) to 100 (least free), which places India 20 out of the 47 countries worldwide
that were included in the report. On 12 March 2012, Reporters without Borders published a
report titled ‘Internet Enemies Report, 2012’ on the basis of the growing control over the net
by Government. Report contained a list of ‘Enemies of the Internet’ that restrict online access
and harass their netizens; and a second list of ‘Countries under Surveillance’ for displaying a

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disturbing attitude towards the Internet. Report put India in the list of ‘Countries under
Surveillance’. In its seventh transparency report, published on 27th April 2013, Internet giant
Google noted that the Indian government has nearly doubled its requests to Google for removal
of content in the second half of 2012 as compared to the first six months. The report, further
noted that between July and December 2012, Google had received more than 2,285 government
requests to delete 24,149 pieces of information. In the first half of 2012, Google received 1,811
requests to remove 18,070 pieces of information. During the same six-month period, the Indian
government — both by way of court orders and by way of requests from police— requested
Google to disclose user information 2,319 times over 3,467 users/accounts.

Although the Information Technology Act was in force since 2000, India did not police the cyber
space with much vigour before the 2008 terrorist attack on Mumbai. After the attacks, the
Information Technology Act, 2000 was amended to expand and strengthen the monitoring and
censoring capacity of the Government. The cyber law of India now contains provisions relating
to blocking of websites, monitoring and collecting internet traffic data, interception or decryption
of such data, unhindered access to sensitive personal data, holding intermediaries’ viz. social
media websites liable for hosting user- generated objectionable content, etc. In this backdrop,
India has been considered as a country engaged in ‘selective’ Internet filtering.

Coming to India, according to the Freedom House’s latest report ‘Freedom on the Net, 2012’,
India's overall Internet Freedom Status is “Partly Free”. India has secured a score of 39 on a scale
from 0 (most free) to 100 (least free), which places India 20 out of the 47 countries worldwide
that were included in the report. On 12 March 2012, Reporters without Borders published a
report titled ‘Internet Enemies Report, 2012’ on the basis of the growing control over the net
by Government. Report contained a list of ‘Enemies of the Internet’ that restrict online access
and harass their netizens; and a second list of ‘Countries under Surveillance’ for displaying a
disturbing attitude towards the Internet. Report put India in the list of ‘Countries under
Surveillance’. In its seventh transparency report, published on 27th April 2013, Internet giant
Google noted that the Indian government has nearly doubled its requests to Google for removal
of content in the second half of 2012 as compared to the first six months. The report, further
noted that between July and December 2012, Google had received more than 2,285 government

9|Page
requests to delete 24,149 pieces of information. In the first half of 2012, Google received 1,811
requests to remove 18,070 pieces of information. During the same six-month period, the Indian
government — both by way of court orders and by way of requests from police— requested
Google to disclose user information 2,319 times over 3,467 users/accounts.

Although the Information Technology Act was in force since 2000, India did not police the cyber
space with much vigour before the 2008 terrorist attack on Mumbai. After the attacks, the
Information Technology Act, 2000 was amended to expand and strengthen the monitoring and
censoring capacity of the Government. The cyber law of India now contains provisions relating
to blocking of websites, monitoring and collecting internet traffic data, interception or decryption
of such data, unhindered access to sensitive personal data, holding intermediaries’ viz. social
media websites liable for hosting user- generated objectionable content, etc. In this backdrop,
India has been considered as a country engaged in ‘selective’ Internet filtering.

Pre- Screening Content on Social Media

In December, 2011, the Indian Government asked the internet companies like Google, Facebook,
Microsoft, etc. to create a framework to pre-screen the data before it goes up on the website.
Some defamatory content was found on a social networking site and on that pretext, Government
has asked the companies to chalk out a way to ensure that such content is screened before it goes
online.
As a major debate broke out on the matter and it was portrayed in a negative light, Kapil Sibal
told media that the Government was not trying to censor the freedom of speech and expression
online; it merely wanted to stop offensive material from being uploaded on social networking
sites.
In the Secretary, Ministry of Information and Broadcasting, Government of India and
others vs. Cricket Association of Bengal and others
The Supreme Court held that “for ensuring the free speech right of the citizens of this country, it is
necessary that the citizens have the benefit of plurality of views and a range of opinions on all public
issues. A successful democracy posits an aware citizenry. Diversity of opinions, views, ideas and
ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching

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them. This cannot be provided by a medium controlled by a monopoly- whether the monopoly is of
the State or any other individual, group or organization.
In the light of the above, it can be opined that rather than censoring of social media, its regulation is
desirable in a way which maintains the rights of users and also protects that of the victims
simultaneously. This brings us to discussing the cyber laws of India which are intended to regulate
social media, albeit in an indirect manner.

CYBER LAW IN INDIA AND SOCIAL MEDIA

Although there is no specific legislation in India which deals with social media, there are several
provisions in the existing so-called cyber laws which can be used to seek redress in case of
violation of any rights in the cyber space, internet and social media. The legislations and the
relevant provisions are specifically enumerated as under:
The Information Technology Act, 2002
(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and 67B
contain punishments for computer related offences which can also be committed through social
media viz. tampering with computer source code, committing computer related offences given

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under Section 43, sending offensive messages through communication services, identity theft,
cheating by personation using computer resource, violation of privacy, cyber terrorism,
publishing or transmitting obscene material in electronic form, material containing sexually
explicit act in electronic form, material depicting children in sexually explicit act in electronic
form, respectively.
(b) Section 69 of the Act grants power to the Central or a State Government to issue directions
for interception or monitoring or decryption of any information through any computer resource
in the interest of the sovereignty or integrity of India, defence of India, security of the State,
friendly relations with foreign States, public order, for preventing incitement to commission of
any cognizable offence, for investigation of any offence.
(c) Section 69A grants power to the Central Government to issue directions to block public
access of nay information through any computer resource on similar grounds.
(d) Section 69B grants power to the Central Government to issue directions to authorize any
agency to monitor and collect traffic data or information through any computer resource for
cyber security.
(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable for any
third party information, data or communication link made available or hosted by him in the
following cases-
his function is limited to providing access to a communication system over which such
information is transmitted, stored or hosted.
He does not initiate, select the receiver and select or modify the information contained in the
transmission.
He observes due diligence and other guidelines prescribed by the Central Government while
discharging his duties.

Again, an intermediary shall be liable in the following cases:

He has conspired, abetted, aided or induced by threats, promise or otherwise in the
commission of the unlawful act.
He fails to expeditiously remove or disable access to the material which is being used to
commit the unlawful act, upon receiving actual knowledge or on being notified by the
Government.
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Section 66A of the Information Technology Act, 2000

Of all these provisions, Section 66A has been in news in recent times, albeit for all the wrong
reasons.
Before discussing the issue in detail, it is desirable to first have a look at Section 66A, the
provision itself. Section 66A of the Information Technology Act, 2000 inserted vide Information
Technology (Amendment) Act, 2008 provides punishment for sending offensive messages
through communication service, etc. and states:
Any person who sends, by means of a computer resource or a communication device,—
(a) Any information that is grossly offensive or has menacing character;

(b) 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,

(c) 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
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes 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.
Section 66A was inserted through an amendment to the Act in 2008. The Amendment Bill,
which was introduced in Parliament in 2006, had only the first two sub-clauses under Section
66A. Section 66A was originally intended to tackle spam, defined as unwanted and unwarranted
e-mails. The Department of Information Technology told the committee that sub-clause (b) of
Section 66A and Clause (i) of Section 43 of the Act sufficiently addressed the issue of spam.
However, the Standing Committee on Information Technology, in its 2007 report, recommended

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that the Bill be made more stringent. Thus, sub-clause (c) was added to the provision, besides
increasing the punishment for violation to three years imprisonment from up to two years.
A minute perusal of the provision clearly indicates that there is an inherent inconsistency
between the phraseology of Section 66A and Article 19 (1) (a) of the Constitution, which
guarantees freedom of speech and expression to every citizen. Under Article 19(2), restrictions
on freedom of speech and expression are reasonable if they pertain to any of the listed grounds,
such as sovereignty and integrity of India, security of the state, friendly relations with foreign
states, public order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence. But under Section 66A, restrictions have been placed on freedom of
speech and expression on several other grounds, apart from those mentioned in the Constitution.
There are several anomalies in the provision, which are inconsistent with free speech
requirements. Words like “grossly offensive”, “menacing character”, “annoyance”, “danger”,
“obstruction”, “insult” and “injury” do not have any precise definition. A prominent question
that has been left unanswered is whether these words are to be construed with regard to the
sensibilities of the particular person the words are addressed to or as per that of a reasonable
man. Going by the sensibilities of particular individuals, it is most likely that even authors of
innocent communication through e-mail could be accused of having violated the law.
To add to the fear that this provision could be hugely misused, several incidents in the recent past
bear testimony to the same. A chronological order of such events is as follows:
In April 2012, Ambikesh Mahapatra, a professor of chemistry in Jadavpur University in West
Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on
social networking sites.

In May 2012, two Air India employees were arrested by the Mumbai Police for putting up on
Facebook and Orkut content that was against a trade union leader and some politicians. They
were in custody for 12 days.

In October 2012, Ravi Srinivasan, a businessman, was arrested by the Puducherry Police for
tweeting that Kartik Chidambaram (son of Union Finance Minister P. Chidambaram) appears to
have amassed more wealth than Robert Vadra, son-in-law of Congress president Sonia Gandhi.

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 In November 2012, Shaheen Dhada was arrested for questioning the shutdown of Mumbai
following the death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was
“liked” and shared by her friend, Renu, who was also arrested by the Thane Police in
Maharashtra.

In the face of widespread abuse of Section 66A, a writ petition has been filed in the form of a
public interest litigation in the Supreme Court challenging the section’s constitutionality wherein
it has been submitted that the phraseology of impugned Section is so wide and vague and
incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence
falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution. Admitting the writ petition,
Division Bench of Supreme Court, comprising Chief Justice Altamas Kabir and Justice J.
Chelameswar, noted that the “wording of Section 66A is not satisfactory. It is made very wide
and can apply to all kinds of comments.”
To prevent the misuse of Section 66A, however, Ministry of Communications and Information
Technology, Government of India has issued Advisory to State/UT Governments on
implementation of Section 66A. They have been advised that with regard to the arrest of any
person in connection with a complaint registered under Section 66A, the concerned police officer
of a police station under the State’s jurisdiction may arrest any person only with prior approval
of such arrest from an officer not below the rank of the Inspector General of Police in the
Metropolitan cities or an officer not below the rank of Deputy Commissioner of Police or
Superintendent of police at the district level, as the case may be.

INSTANCES OF ALLEGED ABUSE ON SOCIAL MEDIA

1.Youth held for ‘objectionable’ FB post against Azam Khan

A Class XI student from Bareilly was arrested by Rampur police for sharing an “objectionable”
post on Facebook against senior Samajwadi party leader and state Urban Development Minister
Azam Khan. A team of crime branch sleuths picked him up from his house Monday and he had
been remanded in judicial custody for 14 days.
2.FIR filed against Owaisi over Delhi hate speech

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An FIR has been lodged against All-India Majlis Ittehadul Muslimin (AIMIM) leader and MP
Asaduddin Owaisi by Delhi police on the directions by a city court for his alleged “hate speech”
in June last year. The FIR includes charges under Section 153 A (promoting enmity between
groups), 504 (intentional insult with intent to provoke breach of peace) and 120B (criminal
conspiracy ) as well as sections 66A, 66F and 67 of the IT Act that relate to “objectionable”
speech and cyber terrorism.
3.FIR against author Taslima Nasreen on cleric’s complaint
An FIR has been lodged against controversial Bangladeshi writer Taslima Nasree for allegedly
hurting religious sentiments (on Twitter) following a complaint by a prominet Muslim cleric in
Bareilly district of Uttar Pradesh.
4.Two girls arrested for Facebook post questioning ‘Bal Thackeray shutdown’ of Mumbai,
get bail
Two girls were arrested over their Facebook post questioning the shutdown in the city for Shiv
Sena patriarch Bal Thackeray’s funeral with the comment also leading to an attack on the clinic
of an uncle of one of them by Sena activists.
5.Cartoonist Aseem Trivedi charged with sedition ready to surrender
Charged with sedition and insulting national emblems in his cartoons, Aseem Trivedi — a
political cartoonist based in Kanpur — claims he will travel to Mumbai and surrender to the
police in a couple of days. The Mumbai Police’s cyber wing had blocked Trivedi’’s
website, http://www.cartoonsagainstcorruption.com,lastDecember, sparking a debate on freedom
of expression in India.
6.Kerala youth arrested for posting abusive Facebook comments against Modi
A Kerala youth was arrested on charges of posting abusive comments and photos on Facebook
against Prime Minister Narendra Modi. The case was registered against Rajeesh at Anchal police
limits in Kollam district on Tuesday after he had posted three abusive posts on Facebook. An
RSS worker had complained against Rajeesh – a local CPI (M) worker.
7.Two arrested for e-mail showing Pinarayi’s ‘mansion’

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The Kerala Police cyber cell on Sunday arrested two youths on charges of circulating an e-mail,
which contained a picture of a palatial mansion, wrongly attributed to CPM Politburo member
and state secretary Pinarayi Vijayan.3

CASE STUDY ON HATE SPEECH ON SOCIAL MEDIA:

MUMBAI FACEBOOK ARREST CASE

Shreya Singhal v. UOI

INTRODUCTION

Supreme Court in a landmark judgement struck down section 66A of the Information
Technology Act, 2000 which provided provisions for the arrest of those who posted allegedly
offensive content on the internet upholding freedom of expression. Section 66A defines the
punishment for sending “offensive” messages through a computer or any other communication
device like a mobile phone or tablet and a conviction of it can fetch a maximum three years of
jail and a fine.

Over the last couple of years there has been many cases in which police has arrested the
broadcasting of any information through a computer resource or a communication device, which
was “grossly offensive” or “menacing” in character, or which, among other things as much as
cause “annoyance,” “inconvenience,” or “obstruction.” In a judgment authored by Justice
R.F.Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has
now declared that Section 66A is not only vague and arbitrary, but that it also
“disproportionately invades the right of free speech.”

FACTS OF THE CASE

3
https://indianexpress.com/article/india/india-others/section-66-a-instances-of-alleged-abuse-on-social-media-
2324927/

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Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for
expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s
death. The women posted their comments on the Facebook. The arrested women were released
later on and it was decided to close the criminal cases against them yet the arrests attracted
widespread public protest. It was felt that the police has misused its power by invoking Section
66A inter alia contending that it violates the freedom of speech and expression. In 2013, the apex
court had come out with an advisory under which a person cannot be arrested without the police
receiving permission from senior officers. The apex court judgment came on a batch of petitions
challenging the constitutional validity of Section 66A of the IT Act on the grounds of its vague
and ambiguous and was being misused by the law enforcing authorities.

JUDGEMENT ANALYSIS

The verdict in Shreya Singhal is immensely important in the Supreme Court’s history for many
reasons. In a rare instance, Supreme Court has adopted the extreme step of declaring a
censorship law passed by Parliament as altogether illegitimate. The Judgment has increased the
scope of the right available to us to express ourselves freely, and the limited space given to the
state in restraining this freedom in only the most exceptional of circumstances. Justice Nariman
has highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also
“a cardinal value that is of paramount significance under our constitutional scheme.”

NO LEGITIMATE DEFENCES

The Supreme Court agreed with the petitioners that none of the grounds contained in Section
19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the
IT Act. “Any law seeking to impose a restriction on the freedom of speech can only pass
muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject matters
set out in Article 19(2).” There were two tests that were put to the Section 66A- clear and present
danger and the probability of inciting hatred. Section 66A has failed those tests because the posts
that people were jailed for did not incite public hatred or disrupted law and order.

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CONCLUSION

In quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given afresh lease
of life to free speech in India, but has also performed its role as a constitutional court for Indians.
The Court has provided the jurisprudence of free speech with an enhanced and rare clarity.
Various provisions of IPC and Sections 66B and 67C of the IT Act are good enough to deal with
all these crimes and it is incorrect to say that Section 66A has given rise to new forms of crimes.

HATE CRIMES

The concept of hate crimes by analyzing the various definitions stated by different criminologist
throughout the world, Hate Crime or Hate Violence is said to be, ‘crime or violence committed
due to the victim’s real color, race, religion, disability, sexual orientation or origin. It’s an
offence that shows the evidence prejudice made on religion, race, sexual orientation or ethnicity.

Various jurists from USA and Europe assumed that the distinctiveness is only the exclusive
criteria for studying the concept of hate crimes. However, in hate crimes, the state of socio-
economic should be examined thoroughly. The social economic factors like social learning of

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bias, inequality, policy of selective handling of groups violence, economic factors etc. have
major impact over hate crimes.

Here is a case study of such nature which recently shook not only the roots of Indian government
but also displays the political as well as ethical side of India which has turned out too abysmal.

CASE STUDY: IMPACT OF THE MEDIA

MUZAFFARNAGAR RIOTS

In the recent decades, with a sharp rise in the communal incidents and religion based tensions,
the growth of communal riots and force has acquired a dangerous position in India. Communal
violence has been prevailing in India since a long time. For example, the 1984 anti-Sikh riots.

27th August 2013, a terrifying yet sad day in India which gave birth to a new group of communal
riots namely ‘Muzaffarnagar Riots’. Severe clashes between the two communities, the ‘Muslims’
and ‘Jats’ in Muzaffarnagar and Shamli, India broke out in the parts of rural areas and
communally sensitive district of Muzaffarnagar in Uttar Pradesh which claimed more than 43
lives leaving 93 plus injured. These riots in Muzaffarnagar have not only raised questions about
the social stability in India but also about the ability of the civil administration in order to
remove disorder and enforce tough rules and laws against targeted communal violence.

From inception, the situations and factors which led to the emergence of such serious riots and
violence was, on this one day when a Hindu girl was walking past a Muslim community on her
way to school; she was being harassed by a man who passed lewd, insulting comments on her.
The girl then further complained to her brothers about the incident. Without giving it a thought,
the brothers took the matter in their own hands and decided to teach that guy a lesson by
inserting a knife into the guy’s stomach, which ultimately resulted in his death. The guy who had
harassed the girl belonged to the Muslim community. The friends, family and neighbors of that
Muslim boy caught hold of the girl’s brothers and lynched them mercilessly in front of many
witnesses. This was not the end but a beginning which opened doors to the Muzaffarnagar
communal riots. The girl’s father, when tried filing a FIR against the family of the boy who had
harassed the girl, the police refused to register the FIR. On the other hand, when the Muslim

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family went to file a FIR for the murder of their son who harassed the girl, the police readily
registered the case and arrested the Father of the girl with his other close relatives.

Here, the problem actually started, as by thinking that clear discrimination was done by the
administration, the Jat community requested the panchayat of their community to force the police
in order to drop the charges against girl’s father. Nonetheless, the Administration did not take
any final decision. The Jat community again approached the Panchayat under the ‘Bahu Beti
Bachao Sammelan’ and distributed a few inflammatory videos and pictures via CD/MMS. With
no action brought in by the main people of the district, people of the Muslim community took
advantage of the situation and on a certain day attacked the people of the Hindu community.
After this incident, the riots spread like fire which became uncontrollable.

The vernacular media and a few major national news channels (electronic) have seemed to have
played a vital role in provoking and instigating serious violence and aggression against the
Muslim community. Through unfound and false stories, a mischievous and deliberate attempt in
spreading hatred between the communities was a part of the role which the media played.
Nonetheless, with the support of the representatives of political parties like BJP, they used social
media like Facebook, MMS and CD’s as a tool arouse hatred before as well as during the riots.
Moreover, the people of Muzaffarnagar gave a communal color to the violence by exaggerating
the incidents. Many Hindi news channels and newspapers misreported the happenings on daily
basis by setting up a picture in the minds of the public that it was the Muslims who were
slaughtering the Hindus and initiating distorted violence. As a result, there was a severe rise in
the rumors and passion to fight and revolt back in the riots.

PLANS OF GOVERNMENT TO CURB THE MISUSE OF SOCIAL MEDIA

1. Setting up of a cyber surveillance agencies which can forewarn about any such malicious
intent and timely notifying in order to take suitable action.
2. Frame guidelines for telecom operators to prevent panic reaction and block harmful
content on the internet and social media.
3. Prepare a legal authority approved by the government to fill the existing gaps in the
Information Technology Act for dealing with such situation, including deterring
malicious use of the internet and social media.

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Social media is just a body to broadcast information quickly – whether the information is good or
bad depends ultimately on the individual, how he takes it. Whether he gets lured immediately or
waits for the reliable source and frames his action which may be in favour of whole society.

ROLE THAT MEDIA SHOULD PLAY DURING COMMUNAL RIOTS

Despite the increased level of communication methods, very few governments say about
successful communication to the mass during conflicts because they fail to understand the
perception of the same conflict in the minds of the common mass.4 The role of the social media
in covering and resolving conflicts, especially those revolving around the religious differences
that may lead to fueling communal riots in India is extremely critical.5 There are enough
challenges faced by a journalist and media personnel regarding the care he should take in such a
situation.

The guidelines for a reporter in covering communal riots should be to look out for detailed
background information, not continue with the stereotyping of communities, find residents who
deal with both the communities, talk to victims from both sides, corroborate the victims’ as well
as the police’s accounts, discover the role of the police, the politicians and the media and
highlight stories where communities have helped each other.The people of society form their
opinions based on the immediate coverage of reporters on the ground and how television anchors
and the media expert analyst sitting in the studios analyze in their frame of mind. Reporters and
journalists are not value-free. A communal riot is a sensitive issue and their personal opinion
may get in the way of professional reporting. It would be extremely difficult for a reporter or a
journalist to cover and report on a communal riot. However, this problem would halt if the
reporter or the journalist keeps the basic concept of reporting in mind, where first of all he or she
needs to understand that conflicts where he/she is a social process in which he or she is an
important social actor, an actor whose job is to halt the conflict and not add to it.6

4
Ballantine, B. (2003). Improving the quality of risk management in the European Union: Risk
communication.
5
Ahmed, S. (2010). The Role of the Media During Communal Riots in India: A Study of the 1984 Sikh
Riots and the 2002 Gujarat Riots. Media Asia, 37(2), 103-112
6
Ahmed, (2008).Pros and cons of conflicts sensitive reporting. Submitted for Islamabad Policy
ResearchInstitute (IPRI) and Regional Centre for Strategic Studies (RCSS), Sri lanka.

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On the broader aspect, there are many functions of the media in usual and reporters in particular
include preventing or calming the conflict so that a viable solution is reached immediately.
During a communal riot, the media can even get the international perspective on the events and
thereby create an environment where the world starts to discuss the same. Ultimately, it might
force the national and the state governments to act accordingly in fovour of the society. The
media should realize that they can either alleviate or aggravate the situation. The media have the
capability to provide a great deal of information during an ongoing communal riot. They can
inform the public or communicate directly with the victims and their families .Thus, controlled
steps and actions should be taken in order to prevent the situation from further aggravation.7

CONCLUSION

Through our research, we have been to conclude that responsibility of media increase while
covering the communal riots. Media coverage & social media helps people to get new
information and new opinion to the same issue, it is necessary to insure the liberty of the opinion
giving and views by people in social media helps people to have better and update information
regarding a with range of social, political, technical issues. But this is important that we should
not reprobates and trouble makers to misuse social media. There is an urgency in the part of the
government to install effective mechanism and surveillance system which check objectionable
content and suspends its transmission through social media. Telecom companies should develop
effective techniques to trace the location of the uploading content. Few sections of the media and
some users of social networking sites bid to hurt the sentiments of the religious groups through
their opinion blogs and posts, which have tendency to provoke, deprave the peaceful ambience
and lead the communal unrest. Social networking sites should be boosted to device greater self-
check that they contribute lest to large scale law and order disturbance. The state should use all
measures to punish those guilty for fueling the communal violence. It is also important that
media should know that they can relive the situations and should react responsibly. Bit alone
media can never bring about a racial change overnight, support from the part of readers are also
required, and try to maintain the harmony in the society and promote the essence of fraternity.

7
Berry, L., Jones, A., Powers, T., & Sava, A. M. (1999). Media interaction with the public in
emergency situations:Four case studies

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 CONCLUSION

It is clearly evident that social media is a very powerful means of exercising one’s freedom of
speech and expression. However, it is also been increasingly used for illegal acts which has
given force to the Government’s attempts at censoring social media. Where on the one hand, the
misuse of social media entails the need for legal censorship, on the other hand, there are
legitimate fears of violation of civil rights of people as an inevitable consequence of censorship.
What is therefore desirable is regulation of social media, not its censorship. However, the present
cyber laws of India are neither appropriate nor adequate in this respect. An analysis of the

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existing IT laws shows that there is unaccountable and immense power in the hands of the
Government while dealing with security in the cyber space. Even then, it is not sufficient to
check the misuse of social media. Hence, a specific legislation is desirable to regulate social
media.
However, there are many practical difficulties which may arise while doing so. There is a very
thin line which demarcates the enjoyment of one’s right and the violation of the enjoyment of
else’s right in the process. In social media, the exercise of freedom of speech and expression by
one may result in the invasion of privacy and defamation. Again, the idea of objectionable
content varies from one person to another. A cartoon is a harmless way of having fun but offence
may be taken by the person concerned. Similarly, hate speech, racist remarks, religious
sentiments have different meanings for different people.
Keeping all this in mind, it is suggested that the Government should form a Committee including
technical experts to look into all the possible facets of the use and misuse of social media and
recommend a suitable manner in which it can be regulated without hindering the civil rights of
citizens.

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