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FREEDOM OF SPEECH AND EXPRESSION IN THE

AGE OF SOCIAL MEDIA: PRELIMINARY THOUGHTS
ON CHALLENGES IN REGULATING ‘ONLINE
FALSEHOOD’
P. Puneeth*
Abstract
Emergence of social media platforms has turned out to be both a boon as well as a
bane. It has revolutionized the way people communicate with each other so much
so that the physical distances could hardly be considered as barriers for real time
communications. Social media platforms literally transformed the world into a
single social space. Whereas this is a boon, the baneful consequences of the online
social media platforms are that they enabled subversive and anti-social elements to
spread falsehood and misinformation to create hatred, incite violence, and divide
societies. They even have the potential to affect the sincerity and sanctity of ballot
and can weaken democratic institutions and processes. It has become increasingly
necessary to regulate them, which is one of the most serious and complex tasks.
Since the Constitution guarantees freedom of speech and expression to every
citizen in an equal measure irrespective of the media or platform one choses to
exercise the same, the regulation of social media platforms shall conform to the
Constitution. The paper explores how effectively social media platforms can be
regulated within the constitutional framework and, particularly, how creation and
circulation of falsehood can be regulated when ‘falsehood’ per se is not recognized
as a ground on which reasonable restrictions can be imposed on freedom of speech
and expression. It discusses guarantee of freedom of speech and expression in
USA and Singapore to draw appropriate analogies. The paper also examines whether
the Constitution of India permits enactment of a Singapore like legislation viz.,
Protection from Online Falsehoods and Manipulation Act, 2019 in India to
counteract deleterious effects of online falsehood.

I. Introduction
II. Constitutional Guarantee of Freedom of Speech and Expression
III. Limitations on the Right to Freedom of Speech and Expression
IV. Regulation of ‘Online Falsehood’ in the Age of Social Media
V. Conclusion
I. Introduction
THE CONSTITUTIONAL guarantee of freedom of speech and expression is
not limited to any particular media or platform. With the evolution of technology,
as the new media or platforms are created, the Supreme Court has recognized

* Associate Professor of Law, Centre for the Study of Law and Governance, Jawaharlal Nehru
University, New Delhi.
42 Kamkus Law Journal [Vol. : 4

that the freedom of speech and expression is exercisable on all such media or
platforms. Online social media platforms or sites are new additions to the list. The
emergence of online social media platforms provided the greatest opportunity to
people to disseminate news, views and to share all kinds of information almost
instantaneously like never before. It has, in a way, empowered the people. There is
also a flip side to it. The online social media also enabled subversive and anti-social
elements to spread falsehood and hatred, incite violence, misinform and mislead
people. The dangers of online falsehood, when widely circulated, are very many.
They have the potential to create hatred, incite violence, divide society, and can
even weaken democratic institutions and processes. Regulations, thus, need to be
put in place. Regulating social media is, however, one of the serious and complex
tasks. Since the constitutional protection to freedom of speech and expression
extends to social media as well, its regulation shall conform to the constitutional
limits envisaged under article 19 (2) of the Constitution of India. This paper seeks
to examine whether the online social media can effectively be regulated within the
existing constitutional framework.
This paper has been divided into different parts. Part II briefly explains the
significance of constitutional guarantee of freedom of speech and expression and
Part III outlines the grounds on which freedom of speech and expression can be
subjected to restrictions as per the constitutional scheme in India. It is argued that
by explicitly enumerating the grounds of restriction, the Constitution of India
accords better protection to the freedom than the Constitution of the United
States of America. Part IV briefly elucidates how online falsehood might prejudice
or have adverse implications on various legitimate state or collective interests of
the society. It focuses more on how falsehoods created and circulated online widely
with political ends in mind may influence the choices of the voters and, thus, affect
the “sincerity of the ballot.” Falsehood has the potential to weaken democratic
institutions and processes. Further, this part also explains the challenges in regulating
online falsehood within the constitutional framework. The important question it
examines is whether it is permissible under the constitutional scheme to impose
restriction or prohibition on creation and circulation of online falsehood in the
interest of holding ‘free and fair elections in India’ since it is not recognized as a
ground under article 19 (2)? Part V contains conclusion.
II. Constitutional Guarantee of Freedom of Speech and Expression
The freedom of speech and expression is one of the most cherished human rights
and it has pivotal significance in democratic polities. One cannot imagine a democracy
of any form, where there is no guarantee of freedom of speech and expression.
That is why freedom of speech and expression has been accorded the sacrosanct
2020] Freedom
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status of fundamental rights in most of the democracies. The Constitution of

India also protects, under article 19 (1)(a), freedom of speech and all other forms
of expression – by words (not only spoken but also written) or by signs or by
visible representations, or in any other forms, in which a person can express oneself.
The exercise of freedom that is guaranteed is not limited to any particular platform
or media; it extends to all including the social media platforms – the emergence of
which was not even in the contemplation of framers of the Constitution at the
time of its making.1
Under the constitutional scheme, the freedom of speech and expression, unlike
certain other fundamental rights, is available only to citizens and not to others.2
Further, it must also be noted that this right to freedom of speech and expression
is available to all citizens in equal measure and, even though freedom of press is
considered to be implicit in it, the journalists in print or electronic media do not
have any special rights. No special privilege is accorded to them.3 Every citizen,
whether he/she is a journalist or not would have the same amount of constitutional
protection and their rights to freedom of speech and expression are subject to
restrictions on same grounds irrespective of the media or platform,4 which they
chose to express themselves.
The freedom of speech and expression, which is expressly recognized under article
19 (1)(a), is a composite right. It is wide enough to include within its ambit, as
recognized by the Supreme Court in a number of cases, various concomitant

1 In Anuradha Bhasin v. Union of India, 2020 SCC Online SC 25, the Supreme Court itself has
acknowledged that it, “in a catena of judgments, has recognized free speech as a fundamental
right, and, as technology has evolved, has recognized the freedom of speech and expression
over different media of expression. Expression through the internet has gained contemporary
relevance and is one of the major means of information diffusion. Therefore, the freedom of
speech and expression through the medium of internet is an integral part of Article 19 (1)
(a)…”
2 When it comes to non – citizens, though the position with regard to aliens or foreigners that
they are not entitled to freedom of speech and expression was very clear, with regard to
juristic persons like incorporate companies, there was some ambiguities. No doubt that as per
law, citizenship can only be conferred on natural persons and not on juristic persons. In Bennett
Coleman v. Union of India, (1972) 2 SCC 788, the apex court clarified the position by holding
that the citizens do not lose their fundamental rights when they associate to form a company.
3 Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578.
4 It may, however, be noted that the apex court has been somewhat reluctant to uphold pre-
censorship of press, whereas it had no hesitation in upholding pre-censorship of motion-
pictures. This indicates that the court has accorded differential treatment to freedom of
speech and expression exercised on different platform or media.
44 Kamkus Law Journal [Vol. : 4

rights viz., the right to freedom of press,5 right to information,6 right to interview
prisoners,7 right of broadcasting and telecasting,8 right to exhibit films,9 right to
sing10 or dance or write poetry or literature,11 right to dramatic performances,12
right to advertisement,13 freedom to circulate one’s views by words of mouth or
in writing or through audio-visual instrumentalities,14 right to reply,15 etc. The right
to free speech and expression also includes its negative facet i.e., right to remain
silent.16
It may be pertinent to ask oneself a question at this stage as to what does this
constitutional protection of freedom of speech and expression signify?
This question often reminds the author of the statement that is attributed to the
former military ruler of Uganda - Idi Amin Dada, who once said to have warned
the people that, “[T]here is freedom of speech, but I cannot guarantee freedom
after speech.”17
Even the military ruler, with all his might and unfettered powers, thought that he
could not possibly control, at all the times, the people from speaking whatever
they wish to. But he clearly warned them that he has the means to curtail their other
freedoms ‘after’ speech. Even under authoritarian regimes, people endowed with
the natural ability to speak and express themselves in wide variety of ways can do
so. But it is the threat of possible curtailment of freedom ‘after’ speech that has the
effect of deterring the free speech and other forms of expressions. The ultimate

5 Per B. R. Ambedkar, VII, Constituent Assembly Debates, 780. Also see Romesh Thapar v. State of
Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspaper
(P) Ltd. v. Union of India, AIR 1958 SC 578; Sakal Newspapers (P) Ltd. v. Union of India, AIR
1962 SC 305; Bennett Coleman v. Union of India, AIR 1973 SC 106.
6 State of U.P. v. Raj Narain, AIR 1975 SC 865; Secretary, Ministry of Information and Broadcasting,
Government of India v. Cricket Association of Bengal, AIR 1995 SC 1236.
7 Prabha Dutt v. Union of India, AIR 1982 SC 6.
8 Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatan, AIR 1988 SC 1642; Secretary, Ministry
of Information and Broadcasting, Government of India v. Cricket Association of Bengal, AIR 1995 SC
1236.
9 K. A. Abbas v. Union of India, AIR 1971 SC 481; Bobby Art International v. Om Pal Singh Hoon,
AIR 1996 SC 1846.
10 Usha Uthup v. State of West Bengal, AIR 1984 Cal. 268.
11 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
12 State v. Babulal, AIR 1956 All 471.
13 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. AIR 1995 SC 2438.
14 Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 637.
15 Ibid.
16 Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615.
17 See https://quotes.thefamouspeople.com/idi-amin-1664.php (last visited on July 15, 2020).
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purpose of constitutional protection to freedom of speech is, in effect, to accord

protection to freedoms after speech. The constitutional guarantee of freedom of
speech is an assurance that there will be no threat to the freedom even after speech,
provided one’s speech (or other forms of expression), is within limits that are
defined in the Constitution, which guarantees such freedom.
Freedom of speech and expression is not an absolute right in any country. There
are limitations imposed. In some Constitutions they are clearly and explicitly defined.
In some, like the United States of America, they are recognized later on a case-to-
case basis keeping in mind the “compelling state interests”. So, whenever one speaks
about freedom of speech and expression, one must know that what is protected
is the freedom to speak ‘freely’ and not ‘carelessly’. One must always respect the
limits imposed on the freedom guaranteed.
III. Limitations on the Right to Freedom of Speech and Expression
Under the Constitution of India, like in other countries, the right to freedom of
speech and expression is not an absolute right. The framers of the Constitution of
India have explicitly defined the limitations on freedom of speech and expression
by providing for imposition of restrictions on it under clause (2) of article 19.
Originally it provided for imposition of restrictions, broadly speaking, on four
grounds viz., (i) libel, slander, defamation, (ii) contempt of court, (iii) decency or
morality, or (iv) the security of the state.18
All other freedoms guaranteed under various sub-clauses of clause (1) of article
19 were also subjected to (reasonable)19 restrictions in the similar way under different
clauses of the said article itself. The grounds of restrictions, however, are not
exactly identical under all the clauses.
It may be interesting to note that in the Constituent Assembly, article 19 (article 13
in the draft Constitution) was criticized for hedging the rights with so many
restrictions. Some have made reference to the Constitution of the United States of
America, which does not explicitly provide for grounds on which restrictions can
be imposed on fundamental freedoms such as freedom of speech and press, etc.

18 The original clause (2) of article 19 read: “Nothing in sub-clause (a) of clause (1) shall affect
the operation of any existing law in so far as it relates to, or prevents the State from making
any law relating to, libel, slander, defamation, contempt of court or any matter which offends
against decency or morality or which undermines the security of, or tends to overthrow, the
State.”
19 The word ‘reasonable’ was not there in art. 19 (2) as originally enacted. All other clauses i.e.,
clauses (3) to (6) of article 19, had this word. Granville Austin says it was inadvertently
omitted in art. 19 (2). The word came to inserted in art. 19 (2) by the Constitution (First
Amendment) Act, 1951. The said Act added additional grounds of restrictions.
46 Kamkus Law Journal [Vol. : 4

The American Constitution declares such freedoms in broad and general terms
without expressly providing that the freedoms so guaranteed are subject to
restrictions. Criticizing the draft article 13, it was said that the rights are “riddled
with so many exceptions that the exceptions have eaten up the rights altogether.”20
It was even condemned as a kind of ‘deception’ that what was given with the one
hand is taken away with the other. Replying to the critics, B. R. Ambedkar, the
Chairman of the Drafting Committee of the Constituent Assembly, observed: 21
I am sorry to say that the whole of the criticism about fundamental
rights is based upon a misconception. In the first place, the criticism
in so far as it seeks to distinguish fundamental rights from non-
fundamental rights is not sound. It is incorrect to say that fundamental
rights are absolute while non-fundamental rights are not absolute.
The real distinction between the two is that non-fundamental rights
are created by agreement between parties while fundamental rights
are the gift of the law. Because fundamental rights are the gift of the
State it does not follow that the State cannot qualify them.
In the second place, it is wrong to say that fundamental rights in
America are absolute. The difference between the position under the
American Constitution and the Draft Constitution is one of form
and not of substance. That the fundamental rights in America are not
absolute rights is beyond dispute. In support of every exception to
the fundamental rights set out in the Draft Constitution one can refer
to at least one judgment of the United States Supreme Court.
The fact that the fundamental rights in America are not absolute is abundantly clear
from the observations made by the Federal Supreme Court of the United States
of America in Dennis v. United States.22 In this case the court observed that:
An analysis of the leading cases in this Court which have involved
direct limitations on speech, however, will demonstrate that both the
majority of the Court and the dissenters in particular cases have

20 VII, Constituent Assembly Debates, 40.

21 Ibid.
22 341 US 494 (1951). It may be of further interest to note the observations of Holmes J., made
even in his dissenting judgment in Abraham v. United States, 250 U.S. 616 (1919). He observed:
“I do not doubt for a moment that, by the same reasoning that would justify punishing
persuasion to murder, the United States constitutionally may punish speech that produces or
is intended to produce a clear and imminent danger that it will bring about forthwith certain
substantive evils that the United States constitutionally may seek to prevent. The power
undoubtedly is greater in time of war than in time of peace, because war opens dangers that
do not exist at other times.”
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recognized that this is not an unlimited, unqualified right, but that the
societal value of speech must, on occasion, be subordinated to other
values and considerations.
In the United States of America, the restrictions imposed on freedoms are upheld
by the courts if they, inter alia, serve what is known as “compelling state interests.”23
One can even argue that, by explicitly recognizing the grounds of restrictions, the
Indian Constitution has, in fact, limited the power of the ‘state’ to curtail the freedom.
The rule of construction expressio unius est exclusio alterius clearly leads to that
Conclusion. Recently Jasti Chalameshwar J., has explicitly endorsed this view. He
has observed in his separate but concurrent judgment, in K. S. Puttaswamy v. Union
of India,24 that, “[I]n my opinion, provisions purportedly conferring power on the
state are in fact limitations on the state power to infringe on the liberty of the
SUBJECTS.”
Whereas, in the United States of America, based on the argument that the restriction
in question would serve the “compelling state interest”, it is possible to expand the
grounds of restrictions without amending the Constitution, in India, it is not possible
to do so. In order to add an additional ground, the Constitution needs to be
amended. From this point of view, one can argue that the Constitution of India
accords better protection to the freedom of speech and expression than the Federal
Constitution of the United States of America.
Further, in India, restrictions on the specified grounds can be imposed only through
a ‘law’ duly enacted by a competent legislature and not by executive action.25

23 It is pertinent to note that in the United States of America, different levels of scrutiny are
applied for examining the validity of regulations or restrictions imposed on different kinds of
protected speeches. Various levels of scrutiny applied are: (i) strict scrutiny; (ii) intermediate
review, and (iii) reasonableness balancing. When it comes to the content-based regulation of
speech involving viewpoint discrimination, the courts apply the strict scrutiny test, which is
the highest level of scrutiny, to test their validity. [For details, see R. Randall Kelso, “The
Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Review, and
Reasonableness Balancing” 8:291 Elon Law Review 291 – 405 (2016)]. The question of ‘compelling
state interest’ i.e., whether or not such regulation advances the compelling state interest is part
of the strict scrutiny test. There is no exhaustive list of what advances compelling state
interest. It has to be decided on a case-to-case basis. As ordinarily understood “[A]n interest
is compelling when it is essential or necessary rather than a matter of choice, preference, or
discretion.” See Ronald Steiner, “Compelling State Interest” available at: http://www.mtsu.edu/
first-amendment/article/31/compelling-state-interest (last visited on July 19, 2020).
24 (2017) 10 SCC 1.
25 Express Newspaper (P) Ltd. v. Union of India (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerala
(1986) 3 SCC 615.
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As far as grounds of restrictions are concerned, though the specification of so

many grounds for imposing restrictions on freedom of speech and expression
was widely criticized in the Constituent Assembly, within a year after the
commencement of the Constitution, the state power under clause (2) of article 19
to impose restrictions on freedom of speech and expression was found to be
inadequate, having regard to certain rulings of the Supreme Court,26 and thus, the
first amendment was brought, inter alia, to replace the said clause (2).27
As regards article 19(2), the first amendment did two things – on the one hand, it
further restricted the scope of the right to freedom of speech and expression by
not only adding additional grounds of restrictions but also by empowering the
state to impose restrictions “in the interest” of those stated grounds and, on the
other, it strengthened the protection to freedom of speech and expression by
adding the word ‘reasonable’, which was conspicuous by its absence only in clause
(2) of article 19 as it was originally enacted, whereas other clauses (3) to (6) of
article 19 have had this word from the beginning.28
The first amendment has recast the existing grounds and added additional grounds.
The number of grounds increased from four to seven. They are: (i) the security of
the State (ii) friendly relations with foreign States (iii) public order (iv) decency or
morality, (v) contempt of court, (vi) defamation, (vii) incitement to an offence. It
is axiomatic to state that increasing the number of grounds of restrictions resulted
in reducing the scope of the right to freedom of speech and expression. Further,
replacement of the words “relating to” with “in the interest of ” in clause (2) of
article 19 also expanded the state power to regulate or restrict freedom. The clause,
as originally enacted, allowed the state to impose restrictions “relating to” those
stated grounds. It meant that the restrictions should have a direct and proximate
connection with the grounds that are enumerated. The words “in the interests of ”,
on the other hand, enlarges the state power in the sense that the state can now
impose restrictions not only when free speech or expression can actually lead to
disturbance of public order etc., but even when it has the tendency to cause disorder.

26 Romesh Thapar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC
129.
27 The clause substituted by the Constitution (First Amendment) Act, 1951, reads: “Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevents the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub – clause in the interest of the security of the State, friendly
relations with foreign States, public order, decency or morality or in relating to contempt of
court, defamation or incitement to an offence.”
28 According to Granville Austin, the omission of the word ‘reasonable’ from article 19 (2) in
the original Constitution was because of inadvertence. See, Granville Austin, The Indian
Constitution: Cornerstone of a Nation (OUP, 2012).
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Foreseeing the possibility of disturbance to public order or threat to security of

state, friendly relationships with foreign countries, etc., the state can restrict free
speech.
Adding the word ‘reasonable’, on the other hand, had a positive effect. It mandated
that the restrictions that can be imposed on it must be reasonable having proximate
nexus or a rational relation with the grounds specified in clauses (2) of article 19
and further, restrictions should be proportionate to the object sought to be achieved.
In the year 1963, clause (2) of article 19 was further amended vide section 2 of the
Constitution (Sixteenth Amendment) Act, 1963 to make one more addition to the
grounds of restrictions. The amendment was based on the recommendation of
the Committee on National Integration and Regionalism appointed by the National
Integration Council. As the Committee recommended “that article 19 of the
Constitution be so amended that adequate powers become available for the
preservation and maintenance of the integrity, and sovereignty of the Union”, a
new ground viz., “the sovereignty and integrity of India” was added.
There are now eight grounds on which freedom of speech and expression can be
restricted.
It may, however, be noted that these grounds are not exhaustive. Sometimes, the
freedom of speech and expression can be restricted relying on other provisions
of the Constitution if the exercise of the freedom comes in conflict with them.
One may note, for example, parliamentary privileges. It is not recognized as a
ground under article 19(2) even though the Parliament and State Legislatures are
empowered under the Constitution to punish breach of their privileges. The way
the court constructed the relationship between the two – the right to freedom of
speech and expression, on the one hand, and the power of the Parliament to
punish for the breach of its privileges, on the other – completely leverages the
latter at the cost of the former.29 It cannot be said to be a harmonious construction.
What is more pertinent to be noted, in this context, is that the judiciary can identify,
through the process of construction of the Constitution, additional grounds for
imposition of restrictions on freedom of speech and expression. But, unlike in the
United States of America, it is not open for the court in India to recognize a
ground, which has no textual basis in the Constitution.
IV. Regulation of ‘Online Falsehood’ in the Age of Social Media
As stated earlier, the freedom of speech and expression, which is a composite
right, can be exercised on any platforms or media including online social media.
29 Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395; In Powers, Privileges and Immunities
of the State Legislatures, Re, AIR 1965 SC 745.
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Irrespective of the platform or the media, the extent of the freedom remains the
same as well as the state power to restrict it even though the challenges thrown up
by different media are different.
Information and communication technology (ICT), which is the defining feature
of the contemporary age, has redefined the way people interact and the speed
with which they communicate with each other like never before. Distances do not
matter at all. The ‘internet’ and ‘social media’ platforms have provided greater
opportunities for the people to pass on news or information and more publicly
and openly express their views, ideas, opinions, beliefs etc., One does not have to
rely on conventional print or electronic media like televisions and radios to
disseminate information to wider section of the population. One can even open
his/her own YouTube channel without any cost and keep disseminating information
to the world at large. With Internet enabled handhelds like mobile phones and
iPads one can make videos and share it with others on various social media platforms
within seconds.
These innovations and developments have both positive and negative dimensions.
It is not only possible for people to exchange news and views, ideas and opinions,
but also to spread falsehood and hatred, incite violence, misinform and mislead
people. It is because of this potential and possibility, these social media platforms
might as well be described as ‘anti – social media’30 platforms. The statements that
are false, when widely circulated online, have the potential to spread hate, incite
violence, divide society, and can even weaken democratic institutions and processes.
Having regard to its negative potentials, which could have far reaching consequences,
the legal regulation has become imperative. World over increasingly the need is felt
to regulate social media platforms. Some countries like Singapore have taken a
lead and enacted a statute viz., Protection from Online Falsehoods and Manipulation
Act, 2019 (hereinafter “POFMA”).
The POFMA is a comprehensive legislation, which primarily aims at preventing
electronic “communication of false statements of fact in Singapore”.31 It contains
host of provisions to enable authorities to take appropriate measures to counteract
the effects of communication of false statements of fact. The phrase ‘statement
of fact’, as defined under the Act, refers to “a statement which a reasonable person
seeing, hearing or otherwise perceiving it would consider to be a representation of
fact”.32 It is amply clear from the definition that it does not include views, opinions,
30 Shiv Vaidhyanathan, Anti – social Media: How Facebook Disconnects Us and Undermines Democracy
(OUP, 2018).
31 The Protection from Online Falsehoods and Manipulation Act, 2019, s. 5(a).
32 The Protection from Online Falsehoods and Manipulation Act, 2019, s. 2(2)(a).
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criticisms, satire, or parody. The Act further seeks to suppress financing, promoting
or supporting those involved in repeatedly communicating false statements of
facts and also seeks to enhance transparency in political advertisements made online.
It enables the competent authority to issue ‘Codes of Practice’ to be followed by
‘digital advertising intermediaries’ or ‘internet intermediaries’ for the purpose of
enhancing “disclosure of information concerning paid content directed towards a
political end”.33
Section 7 is one of the key provisions of the POFMA that criminalizes
communication of false statement of facts in Singapore. Clause (1) of section 7
prohibits a person from communicating in Singapore a statement, which he/she
knows or believes to be false if such communication is likely to -
(i) be prejudicial to the security of Singapore or any part of Singapore
(ii) be prejudicial to public health, public safety, public tranquility or public
finances;
(iii) be prejudicial to the friendly relations of Singapore with other countries;
(iv) influence the outcome of an election to the office of President, a general
election of Members of Parliament, a by-election of a Member of
Parliament, or a referendum;
(v) incite feelings of enmity, hatred or ill-will between different groups of
persons; or
(vi) diminish public confidence in the performance of any duty or function
of, or in the exercise of any power by, the Government, an Organ of
State, a statutory board, or a part of the Government, an Organ of State
or a statutory board.
As is evident, the provision does not criminalize mere communication of false
statement. It penalizes such communication only when it leads to or likely to lead
to any of the stated consequences.
POFMA has been subjected to criticism on several counts in Singapore. Moreover,
it is also not clear as to whether section 7, which covers wide areas, falls strictly
within the purview of clause (2)(a) of article 14 of the Constitution of the Republic
of Singapore. Article 14(1)(a) confers on the citizens of Singapore “the right to
freedom of speech and expression” subject to the provisions contained in clause
(2) (a), which reads as follows:

33 See the Protection from Online Falsehoods and Manipulation Act, 2019, s. 5 (a), for explicit
statement of purpose of the Act.
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(2) Parliament may by law impose –

(a) on the right conferred by clause (1) (a), such restrictions as it
considers necessary or expedient in the interest of the security of
Singapore or any part thereof, friendly relations with other countries,
public order or morality and restrictions designed to protect the
privileges of Parliament or to provide against contempt of court,
defamation or incitement to any offence.
It is evident that above clause does not recognize prohibition of spreading of
‘falsehood’ per se as a ground for imposing restriction on freedom of speech and
expression. Since the clause provides for imposition of restrictions “in the interest
of ” specifically stated grounds, the false statements that have reasonable and
proximate nexus to any of them can be restricted and not otherwise. Thus, on
plain reading of various sub-clauses of clause (1) of section 7 of the POFMA in
the light of article 14(2)(a) of the Constitution of the Republic of Singapore, it
seems that the above stated sub-clauses (i), (iii) and (v) of clause (1) of section 7 of
the POFMA clearly falls within the purview of article 14(2)(a) whereas the sub-
clauses (ii), (iv) and (vi) of clause (1) of said section 7 appears to be ultra virus.
In this time and age online falsehood might prejudice various other legitimate state
or collective interests of the society, most particularly, holding of free and fair
elections, which is a foundation of democracy. ‘Misinfor mation’ 34 and
‘disinformation’35 spread online through various social media platforms might
influence the political choices of voters and that threatens the very foundation of
the democracy. The possibility of online misinformation and disinformation
influencing the voter choices is not a figment of imagination of scaremongers. It is
no longer a mere hypothetical possibility. Many democracies across the world
have already experienced it and are seriously enquiring into and exploring the
possibility of enacting stringent laws, like Singapore, to deal with the problem.
International Grand Committee on Disinformation and Fake News had formally
declared that “[T]he deliberate spreading of disinformation and division is a credible

34 ‘Misinformation’ refers to “inadvertent sharing of false information”. See “Disinformation

and ‘fake news’: Final Report”, Infra note 36.
35 ‘Disinformation’ means “the deliberate creation and sharing of false and/or manipulated
information that is intended to deceive and mislead audiences, either for the purpose of
causing harm, or for political, personal or financial gain.” See “Disinformation and ‘fake news’:
Final Report”, Infra note 36.
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threat to the continuation and growth of democracy and a civilizing global

dialogue”.36
The political parties, the candidates or any of their supporters can use various
social media platforms to either create a distrust towards the other political parties
or candidates or to create and circulate false positive narratives about themselves.
Such practices are likely to affect the “sincerity of the ballot”. In the larger interest
of democracy, spreading of misinformation and disinformation to influence the
voter choices or for any other political gains, thus, needs to be dealt with. The
important question, however, is can that be done within the existing constitutional
framework.
The Constitution of the Republic of Singapore does not explicitly permit imposition
of restrictions on freedom of speech and expression either for preventing the
circulation of ‘falsehood’ or in the interest of ‘free and fair elections’. Nevertheless,
section 7(1)(iv) of the POFMA seeks to punish those who influence, by making
false statement of facts, the outcome of an election to the office of President, a
general or by-election to the Parliament or referendums contemplated for various
purposes under the Constitution. If ever challenged in the court, the said provision
in the POFMA may not possibly survive the constitutional scrutiny. The answer,
of course, depends on the intricate nuances of the Singapore Constitution as
interpreted and developed by the Supreme Court of Singapore.
In India, like in the case of Singapore and unlike the USA, the freedom of speech
and expression guaranteed under article 19(1)(a) has been explicitly made subject
to reasonable restrictions that may be imposed by the state. The grounds in the
interest of which such restrictions can be imposed have been specifically enumerated
in article 19(2) of the Constitution. Though the grounds that are enumerated are
very wide and are sufficient to tackle most of the problems even in this age of
social media, every legitimate state or collective interests that are likely to be affected
by online falsehood cannot be safeguarded by relying on those grounds. Creation

36 Principle (ii) of the International Principles on the Regulation of the Tech Platforms declared
by the International Grand Committee on Disinformation and Fake News. The meeting of the
said International Grand Committee was convened by the UK House of Commons’ Digital,
Culture, Media and Sport Committee in November 2018. In addition to the parliamentarian
of UK, the Grand Committee consisted of parliamentarians invited from eight other countries:
Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia, and Singapore. The International
Principles on the Regulation of the Tech Platforms declared by the Grand Committee is
annexed to the “Disinformation and ‘fake news’: Final Report” submitted by the Digital, Culture,
Media and Sport Committee, on February 18, 2019, HC 1791. available at: https://
publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/1791.pdf (last visited
on June 15, 2020).
54 Kamkus Law Journal [Vol. : 4

and circulation of false statements of facts, which are likely to affect those
enumerated state or collective interests viz., the sovereignty and integrity of India;
the security of the State; friendly relations with foreign States; public order; decency
or morality; contempt of court; defamation; or incitement to an offence can be
restricted or prohibited but not the falsehood per se. It is because article 19(2) does
not specifically recognize ‘falsehood’ as one of the grounds for regulating freedom
of speech and expression. Further, it is very pertinent to note that when it comes
to imposing restrictions on the freedom in the interest of enumerated grounds,
the constitution makes no distinction between ‘true speech’ and ‘false speech’. It
appears that both can be restricted in the interest of those enumerated state or
collective interests of the society.
However, in case of ‘defamation’ and ‘contempt of court’, laws governing those
subjects allow ‘truth’ as defense. But in other cases, like disturbance to public order,
threat to security of state or friendly relationship with foreign states, etc., no
distinction is made between ‘truth’ and ‘falsehood’. Even if the circulation of true
statements of fact is likely to lead to, for example, public disorder, the same can
also be prohibited just as false statements of fact.
It is not even desirable to incorporate ‘falsehood’ simpliciter as a ground under
article 19(2). Making ‘falsehood’ per se an autonomous ground may have a chilling
effect on freedom of speech and expression as the state, then, may not make
distinction between ‘honest factual errors’ and ‘deliberate lies’. Denying constitutional
protection to the former would have a deterrent effect on free speech. Further,
sometimes falsehood may be so innocuous which may not affect/prejudice any
of the legitimate state or collective interests, in which case there is no justification
for the state to intervene. More importantly, “[A]s a general rule… the government
does not stand as the definer of truth, which is designed to emerge from the clash
of opinions rather than from government fiat.”37 It may be worthwhile to note
that even in the United States of America, where false statement of facts is denied
the constitutional protection in certain cases, mainly in cases relating to defamation
and commercial speech, the Supreme Court made it clear that the protection is
accorded to false statements as well in cases where denial would have chilling
effect on true speech.38

37 John R. Vile, “False Speech”, available at: https://mtsu.edu/first-amendment/article/1506/

false-speech (last visited on July 31, 2020).
38 For details of the legal position in USA and its critique, see Mark Spottswood, “Falsity,
Insincerity, and the Freedom of Expression”, 16(4) William & Mary Bill of Rights Journal 1203
(2008).
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The pertinent question, however, is can creation and circulation of falsehood be

restricted in India when it is likely to affect the “sincerity of the ballot” and weaken
the democratic processes and institutions? Article 19(2) of the Constitution of
India does not explicitly empower the state to impose restrictions on freedom of
speech and expression in the interest of holding ‘free and fair elections’.
India is the world’s largest democracy and is a federal country with parliamentary
form of governments at both the union and the states. In addition, there are three
tiers Panchayati Raj institutions, which are also representative bodies, established for
the purpose of local self-governance. Periodic elections are held to the Parliament,
State Legislative Assemblies and also the Panchayati Raj institutions. It is axiomatic
to state that maintaining the sanctity, integrity and purity of elections held to all
those representative bodies is not just important; it is the foundational requirement
for the survival of democracy. Deliberate and politically motivated creation and
circulation of false narratives either in favour of or against any political party or
candidate in an election may influence the voter choices and, thus, affect the sanctity
of the ballot. This is undoubtedly a serious concern that needs to be addressed.
The question is how can that be addressed. No doubt, the Representation of
People Act, 1951 (hereinafter “RP Act”) treats, under section 123(4), creation and
circulation of falsehood “in relation to the personal character or conduct of any
candidate, or in relation to the candidature, or withdrawal of any candidate, being
a statement reasonably calculated to prejudice the prospectus of that candidate’s
election” as ‘corrupt practice’. But it does so only if the falsehood is published “by
a candidate or his agent or by any other person with the consent of a candidate or
his election agent” and not otherwise. The provision does not cover the cases of
creation and circulation of false positive narrative about the candidate’s own personal
character, conduct or accomplishments nor does it cover cases, where falsehood
is created and circulated by some supporter of a candidate or his/her political
party without the ‘consent’ of the candidate or his election agent. The RP Act has
its limitations in tackling the falsehood and counteracting its influence on voter
choices. There is a need to explore other ways of tackling it.
Further, influence on voter choices is just one of the many problems the falsehood
has potential to generate. As stated before, creation and wide circulation of
falsehoods have the potential to create hatred, incite violence, and divide society,
apart from weakening democratic institutions and processes. The focus on the
latter, in this paper, is only for the purpose of illustration.
In India, since grounds on which restrictions can be imposed on freedom of
speech and expression are explicitly enumerated, the ‘state’ can neither regulate nor
authorize or require the social media platforms or service providers to regulate
56 Kamkus Law Journal [Vol. : 4

freedom of speech and expression on any ground other than the once recognized
under the Constitution. In the circumstances, it may not be possible to have a ‘law’
to prevent creation and circulation of false narratives on various social media
platforms with political ends in mind. Is it, then, desirable to add a new ground to
empower the state to illegalize creation and circulation of such false narratives?
Some may readily expect the answer to be in the affirmative but great amount of
circumspection is needed whenever a decision has to be taken to further circumscribe
fundamental freedoms. Inclusion of ‘free and fair election’ as an additional ground
for imposing restrictions on freedom of speech and expression may have
unintended consequences. There is a need to have a holistic understanding of the
possible implications of such inclusion. No hasty decision shall be made.
Another important challenge in regulating the online falsehood is the sheer amount
of contents created and circulated online. To a great extent, by relying on article
19(2), even online contents can be regulated but it may be impracticable to do so
owing to the humongous amount of content that is being created and shared
online every day. According to Eric Schmidt, the Executive Chairperson of Google,
“we are creating the equivalent amount of information every other day as all of
humanity created from the beginning of recorded history to the year 2003, and
this is in large part enabled by the World Wide Web.”39 Further, as noted by House
of Commons’ DCMS Committee in its report, “[I]t is hard to differentiate on
social media between content that is true, that is misleading, or that is false, especially
when those messages are targeted at an individual level.”40
Having regard to the difficulty in regulating online contents, the state governments,
in certain exigencies, often resort to internet shutdowns in India. Such measures
may have far reaching consequences. If the proportionality test is adopted to
determine the constitutional validity of internet shutdowns, such measures at times
may seem to be excessive and, thus, impermissible to resort to. Ordering complete
shutdown of Internet even in particular areas for any number of days may amount
to infringement of freedoms guaranteed under article 19(1)(a) and (g) of the
Constitution of India as the Supreme Court had unequivocally declared that “the
right to freedom of speech and expression under article 19 (1) (a), and the right to
carry on any trade or business under 19 (1) (g), using the medium of internet in
constitutionally protected.”41

39 As cited in Michael L. Rustad and Sanna Kulevska, “Reconceptualizing the Right to be

Forgotten to Enable Transatlantic Data Flow” 28(2) Harvard Journal of Law & Technology 349
(Spring 2015).
40 DCMS, “Disinformation and ‘fake news’: Final Report”, supra note 36 at 85.
41 Anuradha Bhasin v. Union of India, supra note 1.
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These are the broad and primary issues that need to be paid attention to while
formulating laws or policies for regulating free speech in the age of social media.
V. Conclusion
Striking a harmonious balance between individual liberties and the legitimate state
or collective interests of the society is one of the perennial problems of statecraft.
Even if the balance is ever struck, the boundary line drawn between ‘liberties’ and
‘restraint’ at any point in time hardly remains apposite for long. Maintaining proper
balance between the two requires boundary line to be drawn and re-drawn as per
the needs of time and circumstances.
The constitutional history reveals that the boundary line between freedom of speech
and expression and the state’s power to impose restrictions on them has been re-
drawn twice after the adoption of the Constitution of India and both the times
state power to impose restrictions has been enlarged, which resulted in narrowing
the scope of freedom. If more and more grounds of restrictions are added, the
constitutionally guaranteed freedom of speech and expression stands bereft of
much of its substance. Thus, no overtly broad additional ground shall be inserted
into article 19(2) as a knee-jerk reaction to deal with the problem of online falsehood.
Prior to formulating appropriate state responses, it is important to understand the
extent to which online falsehood prejudices the other legitimate state or collective
interests, more particularly, the degree to which it influences voter choices and
affects the sincerity of the ballot. Inadequacies of the existing constitutional and
legal framework, if any, shall be ascertained in the light of that and the least restrictive
alternative shall be adopted to deal with the problem of online falsehood.