The status of free speech in the virtual world with respect to the outlook of the US, UK, and India
Authored By- Tanishq Kashyap
The world of today is a virtual one. Since everyone has access to a wide range of free rights in the actual world, including the individual of speech and expression, it is difficult to imagine that the virtual world, is the only place where these rights are not also protected by law. It is obvious that the virtual environment also functions as a useful platform for the user to exercise rights when comparing the state of free speech and expression in the real-world and virtual scenarios. The presence of free speech and its limitations can be digitally mirrored through actual threats, unpleasant remarks, and slander, just like in the real world. However, as time goes on, there is a rising disagreement over how to strike a balance between free speech and its restrictions since a text or statement in a speech can have much more significance than just its literal meaning, which frequently leads to different interpretations and misunderstandings. This makes it difficult to pinpoint the restrictions on free speech in virtual environments. As a result, an effort has been made in this research paper to address the outlook of US, UK & India in relation to Free Speech in virtual world, followed by recent reforms in this context, and moreover, important recommendations have been given to balance the equation of digital freedom.
Key Words: Rights, Free speech & expression, Virtual World, US, UK, India
Human rights are often recognized as a type of guarantee rights that every human should have and cannot be a subject to be violated by others. Without rights, a person becomes a slave, and especially, the absence of a right to life elevates the human of a person's annihilation. Every person has a set of rights, and it is everyone else's responsibility to uphold those rights. Since the United States Constitution’s First Amendment, sometimes known as the Bill of Rights, went into effect, the legislative branch and the judicial branch have served as safeguards for the preservation of the human rights of all people. Therefore, human rights become citizenship rights under the influence of laws and other human bodies, and a nation becomes a citizen of that particular nation. A nation’s first and most important responsibility is to protect its citizens' rights. It can appear that disputes are unaffected, but if we look more closely at the real-world situation, a serious conflict will undoubtedly come into focus. As a result of social media's ability to create a second world known as the virtual world, which contains roughly 98 percent of the people living in our real world, it has been around for at least two or three decades that social media is now regarded as a fourth pillar of any stabilized democratic nation.
Although every nation has established a number of defined or uncodified rights and liberties in the physical world, the topic of whether or not human rights actually exist is becoming more and more important as we move toward virtual settings. There is no question that the Cyber Laws address the deterrents and punishments for offenses committed in the cyberspaces. Despite this, the law still lacks a clear distinction between the status of human rights and their regulation in the digital world, where an ever-increasing number of people are gathering to focus their attention, time, and resources over time. Examples of such digital environments include Facebook, Twitter, and other human rights sites. Social networking sites are increasingly seen as an integral aspect of an individual's life. Therefore, the law should pay particular attention to the virtual world by developing new standards and laws that mirror those in our actual world. For instance, people of a nation like India are granted a number of essential rights that safeguard their life, democracy, and privacy.
The users of social networking sites are not, by any stretch of the imagination, virtual; thus, certain rights and liberties should be ensured to them in order to safeguard their digital democracy. The right to free speech and expression is one of the most contentious human rights now in existence.
This is because it has become an urgent issue because other countries First Amendments and Bills of Rights recognized human rights. It is clear from a lawmaker’s point of view as well as from the standpoint of a layperson that the status of free speech in the virtual world has been a hotly debated matter recently. It is important to re-evaluate the effectiveness of human rights in the dominant virtual networks since individuals frequently fail to make a distinction between free speech and the regulation of free speech when they are online.
The purpose of this paper is to understand the current status of free speech in the virtual world with respect to the outlook of the US, UK, and India
The approach used in this paper is primarily descriptive. It examines pertinent data from many secondary sources to try to compare freedom of speech & expression in US, UK & India. The paper finishes with future consideration for the same.
Free Speech In Virtual Space: Crossing The Borderline
While living in a social settlement, the freedom of speech and its limitations can coexist peacefully since the law itself helps to distinguish between free speech and behaviour that is subject to governmental restrictions. Therefore, the distinction between speech and act does not lead to any conflict or disarray because the act's primary purpose is to distinguish between and control behaviour and free speech. However, when we go to virtual settings, the balance between speech and behaviour is easily upset since neither the government nor the people grasp the distinction between conduct and speech in the digital world. Virtual platforms like Facebook, Twitter, and others present all thoughts and comments as an activity, whether or whether they are hurtful to other people.
Due to this blurring of the boundary between speech from conduct in virtual worlds, speech and conduct often overlap. Therefore, one must improve his analogies and comprehension skills in order to detect the technique to capture the restricted speeches or conducts from the virtual “Speech vs. Conduct” game and defend the virtual "activities". If one carefully considers the substance and spirit of the terms employed in the First Amendment itself, the issue also develops into a serious dilemma. Citizens are expressly prohibited by the First Amendment from protesting state or governmental actions. However, the world of world is one of new technologies and their creators, including those of online games and game designers. Therefore, the First Amendment is useless for defending both the freedom to play online games and the right to create virtual games if, for instance, both game creators and players are private parties and a protection emerges between the private parties. Similarly, using one's right to free speech and expression while defaming another or violating their privacy may result in legal case.
A number of precedents had the power to overthrow judges on the highest court in several nations where the cases frequently brought borderline disputes to public attention and took on a terrible tone. The actual example of the “Borderline Disorder” is in “Elonis v. United States”. There is only one way to love you, but a million ways to murder you. I won't stop until your body is a bloody mess and is dying from all the little cuts. The very upsetting comment above was made by Mr. Anthony Elonis in regards to his wife, who had left with their children, on the social networking site Facebook. She was content with a protection order and custody of the kids because Mr. Elonis threatened her frequently on Facebook. Although Elonis believed he was using his right to free speech, he continued to make alarming threats on Facebook that were directed at his friends and the whole society. The amusing fact is that Anthony Elonis' Facebook “About” page makes it very plain that any content posted there is solely intended for entertainment purposes and does not reflect the views, beliefs, or values held by the actual Anthony Elonis, LOL. Despite this, Anthony Elonis was convicted of a federal offense and sentenced to three years in jail. In his pleadings, the accused argued that the First Amendment's guarantees of free speech barred him from being imprisoned.
The defence attorney dismissed this as blatant comedy, arguing that it would be satirical if every internet user said that any threats they distributed were unintentional.
Now, if we look at the ratio of the case, it is clear that the issue is mostly focused on the standard of the accused purpose vs. the standard of a reasonable case's viewpoint, which will be measured and taken into consideration in most legislation. Whether the threat is real or phony, it is apparent that the fact to propagate it has a threat on people’s bodily and mental health. Therefore, rather than focusing on the victim Mrs. Elonis, it is important to determine whether Elonis, the accused, qualifies for First Amendment protection.
According to the facts, the victim's right to live honorably and without fear or anxiety is violated by the persistent threats made against his wife, kids, and society as a whole. Therefore, it is clear that Elonis cannot get First Amendment-related protection. When does a speech turn into online harassment? How much of a person's rights can be protected under the First Amendment from the offence of cyberbullying? Through two important American precedents, the aforementioned two questions have significantly sparked discussions and raised the number of related topics.
The first precedent, commonly referred to as the “JAKE BAKER” case, is Abraham Jacob Alkhabaz, and it is crucial in this context. A student at Michigan University was named Jake Baker. He often posted sexually explicit articles to a digital bulletin board that was visible to Internet users while finishing his undergraduate degree. One of those stories had him describing his sexual torture of a woman quite well while revealing the identity of a student who was the woman. Following that, these brief stories caught the attention of one user by the name of Arthur Gonda. As a result, they both began exchanging mails and discussing their fantasies of how they may mistreat a young woman. Due to such awful articles and mails, Baker was discovered and prosecuted under 18 U.S.C. 875 (c) for the offence.
According to 18 U.S.C. 875 (c), whomever communicates any discussion in interstate or international commerce referring about any form of kidnapping or abuse threat to any individual will be subject to fine or imprisonment that may last up to five years in total or both. But there must be a real threat to that problem in order to bring about a criminal investigation. Jake Baker filed a motion to stop his prosecution on the grounds that the exchanged statements were fantasies rather than actual threats.
Despite having an offensive fantasy, the district court upheld Baker's appeal to have his conviction overturned on the grounds that the emails he exchanged with Arthur Gonda were private communications that were off-limits to the public and social media outlets with wide distribution, such as newspapers. As a result, the 18 U.S.C. S.875(c) accusation was unfounded and did not constitute a violation. When the Three Judges Panel heard the appeal to overturn the conviction, two of the judges made it clear that, in accordance with section 875(c), the threat must include the intent to harm any individual bodily and to bring about some modifications or effects through the extortion; both of these elements were missing from Baker's communication. The third judge on that panel, however, dissented from the majority's viewpoint and persuasively argued that the standard for determining whether or not a speech represents a genuine intention is flawed. The identity of Baker's classmate was given in the narrative as a young woman who had been sexually assaulted and killed by him; consequently, it is obvious to an informed person that Baker's communication amounted to that degree of offense.
Another important case is the “Nuremberg File” case, in which the ACLA organization (American Coalition of Life Activists group), which primarily promoted its anti-abortion campaign, created posters in 1995 titled "Dirty Dozen" showing a dozen physicians performing abortions. In the posters, a $5000 prize was offered along with the addresses and phone numbers of those physicians in the hopes that someone would assist catch them and have their medical licenses revoked. The posters were displayed across all media platforms. The “Nuremberg Files,” which featured a list of doctors who had been killed and maimed by anti-abortion activists and terrorists, were published on the Internet in 1996 with the assistance of Neil Horsely, an ACLA group activist. The physicians whose names were on the terrorists' list of people to assault were terrified because the ACLA organization, which played a key part in planning the past attacks, had revealed their residences and phone numbers. Due to this, several of those doctors filed lawsuits against the ACLA group of activists for violating 18 U.S.C. S. 248 of the F.F.A.C.E Act (Federal Freedom of Access to Clinic Entrances Act, 1994) and 18 U.S.C. S. 1962 of the RICO Act and requested protection from the court (Racketeer Influenced and Corrupt Organizations Act). The doctors were awarded approximately $107 Million in damages, and ACLO was prohibited from publishing and disseminating any posters, running any websites, or doing anything else similarly harmful.
The Trial Court stated that if the accused's speeches would have constituted a true threat, then only the accused would be held as liable, which was proven by the Jury. However, this is not where the narrative ends. When the Appeal Court abruptly overturned the Trial Court's Verdict on the grounds that it violates the First Amendment, it became surprising news. The panel of the Appellate Court compared the anti-abortion movement to earlier political movements and uprisings in American history and decided that the accused would not be found liable unless they explicitly supported or threatened to carry out violent acts. Additionally, if any of the accused—individually or collectively—had expressly threatened to cause violence, the actions they had already sparked may have coincided with the Trial Court's order. However, the panel found that in the Instant case, the ACLA organization's publicized statements only served to inspire unidentified terrorists who were unaffiliated with this group, and as a result, their speeches were entitled to First Amendment protection.
In the nations of the United Kingdom, e-censorship regulations are comparatively strict. The blocking of pornographic websites, including child pornography, as well as the prohibition and punishment of the dissemination of defamatory materials in accordance with UK law's Defamation and Copyright Laws have all been accomplished under the supervision of the United Nations. According to the English Common Law System, citizens are guaranteed a guarantee of negative freedom of expression. The right to freedom of expression has been guaranteed by the Human Rights Act since the adoption of European Convention (1950), coupled with a number of restrictions. Speaking about the UK's position of free speech, the extensive laws there protect the right to free speech and the freedom of the press while placing restrictions on arbitrary interference with family, correspondences, and privacy issues. There must be an independent press, a strong democratic society, and a functional court in order to secure this guaranteed freedom. Mails are not included in the list of restrictions when it comes to freedoms in virtual space, such as free access to the Internet. Due to the excessive monitoring effects on virtual spaces by the State or commercial Internet service providers, as the case may be, the graph of security concerns, including extreme surveillance against terrorism, has been trending higher since the start of the twenty-first century.
The impact was so great and uncontrollable that UK nations were referred to as Internet enemies in 2014. Russia, China, Pakistan, and other large countries at the time added their names to the list of Internet enemies. The mirror of the current Indian scenario may be easily seen if we dig deeper into UK Internet and defamation legislation. The fundamental difference between the two situations is that neither scenario has stringent enough restrictions against free speech in cyberspace, which enables those who call for the removal of any online information. Because of this simple complaint process, every “intermediary” (in the UK and India) has an unfair advantage to take down any content at any time. They do this in order to unfairly benefit from the defenses granted by the legislation. The intermediaries that host any disputed content are granted a safeguard under European liability that, if they were unaware of the infringing content, they would not be held liable and would simply be awarded an injunction to remove the published information. However, people who are aware of their content will not be protected by this liability safeguard.
The European Court enhanced the intermediaries' defenses in the L'Oreal v. eBay case in July 2011 by ruling that the intermediary's knowledge of the content must be demonstrated as necessary by a test suggesting that the economic operator's awareness must be tangible. The English High Court made a similar ruling in the case of BT v. Newzbin 2, holding that the hosts of the infringing content should have genuine and necessary knowledge of their work and that this awareness of awareness should not be overly strictly applied. Because of these rulings, all other hosts—aside from the few hosts who have committed multiple offenses—can be released from liability. Users of Twitter, Facebook, and Google have broken several super injunctions in July 2010 alone. For instance, after Greenpeace International received an injunction from the Scottish oil and gas exploration company Cairn to stop posting photos of their protest against the Arctic Drilling Plan at Cairn Headquarters to social networking sites, a number of unidentified users quickly published thousands more photos to overturn the injunction. The Cairn Company was ultimately defeated by The Greenpeace, and the injunction ruling was overturned. Now, if Facebook, Google, and Twitter had complied with the European Court's and the MPs' ruling, the images would have been taken off from their websites.
They also violated the injunction orders in this way. The condition can also be seen in other situations.
For instance, the Islamic States Community issued a video on April 19, 2015, depicting the beheading of 30 Ethiopian Christians along with anti-religious remarks. It is debatable whether or not this conduct falls under the purview of free speech. The simple response is “No,” as the terrorists have made a clear threat. However, this notion gained traction when, in one case, a guy joked that he would abandon the airport entirely if the aircraft were to be delayed. However, he was detained since it was believed that his statement did not fall under the free speech rights. However, from a wise person's point of view, the remark does not appear to be a threat because it is less likely that he would actually blow up the entire airport.
A distinct image emerges for us if we put a light on Modern India. There is no question that the more laws there are, the better the protection and the less conflicts there are. Although the Information Technology Act (IT Act, 2000) and its amendments have been trying to provide more restrictions on free speech and expression on the virtual environments, along with the protection of fundamental rights, it is very disappointing that up until now these laws have only increased and deepened the virtual issues rather than resolving them.
Article 19 (1) of our Indian Constitution recognizes freedom of speech and expression as a fundamental and inherent right of Indian citizens, albeit this freedom is not unconditionally guaranteed to them and is instead protected by appropriate limits. These limitations cover issues affecting national, local, and other interests. Assuming that the IT Act, 2000 –12's provisions are accurate, the 2011 amendments draw our attention to the absurd reality that free speech and expression are better protected online than in the virtual world. Section 66A will be the most essential Section to us if we adhere to the limitations outlined in the IT Act in addition to the Constitution since it covers the offenses related to computer, internet, and profanity. An illustration of how the IT Act strengthens virtual conflicts is provided below. A well-known blogger from
Mumbai named Vidyut Kale is the proprietor of the website www.aamjanta.com. She has managed the aforementioned website for about six years. She once detailed a case of fraud and corruption on her website with supporting documentation. As a result, she once more disclosed information on a dubious real estate sale on the internet with papers in September 2012. But this time, two weeks after the aforementioned event, she received a notice of defamation. In response, Kale courageously asserted that she would be pleased to provide the documents to the Court since she had sufficient evidence and materials pertaining to the scams and dealings. The tale was still unfolding. The next day, Vidyut Kale was served with a second defamation notice requesting that the publications be taken down. In accordance with the provisions of the IT Act of 2000, she received this second notification. Due to the efficacy of the IT rules, Kale was unable to display her bravery this time. Due to the fact that the terms and spirit of the IT Act provisions were itself problematic and ambiguous, Kale may have been held accountable even if the content of her website was accurate. The weaknesses of the IT regulations are well brought out and underlined through this actual Indian scenario. The IT Act entirely goes against the great Constitution's need that a governmental body be involved in discussions on fundamental rights and limitations. It gives private organizations the authority to ban any publication or viewpoint made available online. As a result, the provisions of the IT Act permit anyone to object to any virtual content that has been published and to send libel or other legal notices requesting that the content be taken down from the Internet. If the requested content is not taken down, the content publisher may be held legally responsible as well. Due to the circumstances behind why Vidyut Kale was forced to delete the documents without taking any action against them, a similarly crafty situation may have occurred in his instance.
India encounters and draws lessons from a variety of precedents and instances of cyber freedom as the virtual issues are swiftly spreading throughout the entire country due to the ambiguous nature of the IT act, which primarily overlaps with the Freedom of speech guaranteed by the Indian Constitution. When Avnish Bajaj, the CEO of the online marketplace “Baazee.com,” was detained and brought before the court in 2004, it was because his website was being used by unidentified users to bid on a porn MMS.
Although the CEO was not at fault, he was eventually held responsible. In addition to Section 66A of the IT Act (2000), Section 79 also significantly contributes to the rise in concerns since it primarily addresses the private right of censorship. According to Section 79, anybody who discovers offensive content on the Internet has the right to request that it be taken down without first going before a judge. This temporary respite is known as intermediary relief, and the intermediary person will need 36 hours to review the relevant documents. While highlighting dodges, the act itself contains the precise definition of “Intermediaries.” The fact that the Indian legislative authorities failed to define a phrase so crucial to the IT act's liability provision is a genuinely dismal truth and a major oversight. Sadly, as a result of this tragic oversight, the IT Act now gives anybody the right to censor any information in a virtual environment.
The Importance of the Internet in Upholding the Right to Information
The case of Anuradha Bhasin resulted in a landmark judgment by the Supreme Court of India on whether the government's internet shutdown and movement restrictions in the state of Kashmir violated the fundamental right to freedom of speech and expression, and called the internet shutdown's validity into question in light of the restrictions under Article 19(2).
The court highlighted Article 19(2), which deals with the 'reasonable limits' that can be placed on freedom of speech and expression, and how the right to information is an integral component of the right to freedom of speech and expression. The essence of the previous case's freedom was that the right to free speech and expression belonged to every individual, and the level to which restrictions might be applied could even be absolute prohibition.
However, if the state prohibited the exercise of this right entirely, the state would have to use extraordinary caution to ensure that the restriction did not impose an unreasonable burden on free speech and that inferior alternatives could not be adopted. The proportionality test was developed by the Court to assist the government in considering the propriety of future restrictions.
Because online expression is a fundamental way of distributing information, the court ruled in its conclusion that the freedom of expression guaranteed by Article 19 extended to the internet, and that its total closure would have a severe impact on the circulation of free speech and expression.
Freedom of Speech and Expression is an important aspect of everyone's life and of society as a whole. One of the goals of human existence is the right to life, without which there are no lives, no humans, no legislation, no nation, and no civilization. However, some constraints on such perfect freedom should remain in order to safeguard self-personality and creativity from being hampered by other people. Apart from the changes implemented by the legislature and judiciary changing from nation to nation as expounded in detail, I, as a citizen of a democratic country, have the right to offer further recommendations to better the situation of free speech in the virtual world which are as follows:
1. First and foremost, before punishing any citizen who has voiced an opinion online, it should be properly investigated if the words are untrue and detrimental in nature, and if not, the citizen should not be punished.
2. When seeking the shutdown or banning of any information or material published on the Internet, the full material should be revised to ensure that blocking the material does not violate digital freedom and public interest.
3. Governmental Interference must not be desirable to safeguard individuals' privacy in virtual discussions since the government has the authority to acquire whatever data is required in that inquiry in order to conduct a necessary investigation. As a result, the government should not ban websites and virtual user accounts excessively.
4. No laws or policies should be enacted by any government in any nation that restricts individual freedom of speech and expression.
5. Before using a social media account or signing up for a virtual site, every citizen must be attentive in examining the terms and conditions of that specific site; otherwise, you will never know that what you believe is not an offense is actually a clear breach of law.
6. When receiving complaints about restricting material or shutting down a website, police officers should not take action unless they get a court order or follow any special procedure required by law and the court.
7. As a user of a public network, adequate functionality shall be maintained while using the Internet in Cybercafé. For example, at Cybercafé, each user should have an account in his or her utilized computer where their operating time and the sites they have visited are stored. The breadth of the freedom provided to individuals will not be limited by such a system.
As a result, it is expected that by adopting the above recommendations, both the government and individuals would be successful in resolving the concerns and recovering from the Borderline Disorder between Free Speech and Virtual Media. The Virtual World should be handled the same as the actual world. In the age of contemporary technology, the rights that are guaranteed as basic rights in countries should also be safeguarded equally in the Digital Environment.
Social networking sites comprising the Virtual World are foreshadowed as the modern channel of connection in today's times, without which no rapid solution to link the entire World in one thread is feasible. This is an important point since the same virtual environment is also replete with issues linked to digital democracy, where freedom of speech and expression play an important role, just as it does in the actual world. Even freedom-related concerns will be far more restricted in the virtual environment than in the real scenario. Although the right to free speech and expression should be freely available to preserve online freedom, it cannot be disputed that ensuring perfect freedom would result in the rise of cyber bullying, offensive words, and hate speech, culminating in bodily harm to any individual. Before implementing any guidelines for the cyber space, the legislature's responsibility is to regulate virtual user freedom to the extent that it is a true threat or highly offensive in nature, and to unregulated virtual user freedom to the extent that it is just a criticism and does not amount to a true threat to anyone. As a fourth pillar of a nation and a third world, social or digital media should be kept in such a way that, in addition to preserving the individual's right to expression, dangerous remarks and bullying should be avoided. Also, if there are no apparent hazardous and prospective coercions towards anybody, the subject should be left to the Concerned User's judgment because Report Spam options are now a very easy fallback to get rid of the less detrimental utterances. As a result, for such less defamatory remarks, the user should take action, and the best action one can do is to oppose by speech, but this should be appropriate and not extreme. Threats inflicting substantial harm to society or individuals, on the other hand, must not be avoided and left to people's discretion. Last but not least, the First Amendment, Indian Constitution, Universal Declaration of Human Rights, and other Bills of Rights, which differ from
nation to nation, have been safeguarding you through a slew of rights, including the right to free speech and expression, so that you can freely share and express your views and opinions in the virtual media. It is unquestionably the obligation of the legislature and the judiciary to eliminate unwarranted constraints on this freedom via reforms; but, this does not imply that you can speak whatever you want without regard for fundamental appropriateness. You have a basic right to express yourself on any subject, but not in a rude or abusive manner that may cause harm to others. Apart from the legislature and the judiciary, it is up to you to strengthen the position of free speech in the virtual world rather than degrade it via abuses, annoying and dangerous threats, remarks, and expressions. This is ultimately the core aim and vision of safeguarding Fundamental Rights as well as Cyber Democracy.
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