Freedom of Speech under the Digital Age

 Freedom of speech and expression is the fundamental right guaranteed under the Constitution of India. Digital age has changed the whole scene. There is need to look at the freedom of speech from the Internet and Digital technologies point of view. The digital revolution brings to the forefront the importance of organizing, sorting, filtering, and limiting access to information, as well as the cultural power of those who organize, sort, filter, and limit access. The digital media products can be copied, altered, annotated, combined or mixed with other contents and produce something new. In this article the author highlights the importance of Digital Technologies and Internet Speech.  Freedom of Speech - Aright The concept of Freedom of speech embraces individuals, corporates, media people, business entities. The free speech principle is the battleground over many conflicts. Freedom of speech involves toleration of a great deal of nonsense, and even of matters, which are in bad taste. Free Speech has three categories (1) Speech that every one has right to - political speech, speech about political affairs (2) speech that no one has right - obscene speech or pornography, (3) speech for which adults have right but not children. Freedom of speech is the fundamental right under the Constitution of India. Digital age has changed the whole scene. There is need to look at the freedom of speech from Internet and Digital technologies point of view. Three types of actors perform Internet functions  (1) speaker or sender (2) listener or receiver and (3) service provider - intermediary. The relationship between speaker and the intermediary allows speaker to upload information to host computer. The relationship between listener and intermediary allows listener to view or download information posted by the speaker.  Ambit of the Right It has been commonly understood as encompassing full freedom of expression, including the freedom to create and distribute movies, pictures, songs, dances, and all other forms of expressive communication. Digital technologies changed social conditions in which people speak and brought to light the features of freedom of speech that have been in the background to the front. The digital revolution makes possible widespread cultural participation and interaction that previously could not have existed on the same scale. The digital age makes the production and distribution of information a key source of wealth. Lowering the costs of transmitting, distributing, creating, and modifying information has important democratizing and decentralizing effects. For it also lowers the costs of forming communities of interest, of interacting with people, of making new things out of old things, of innovating, copying, altering and modifying, of distributing an individual’s ideas to large numbers of people.  Political Right It is the single most important political right of citizens. Without free speech no political action is possible and no resistance to injustice and oppression is possible. Without free speech elections would have no meaning at all. A democratic culture is essentially a deliberation about public issues. It is a culture in which individuals have a fair opportunity to participate in the government and about individual liberty as well as the collective self-governance “By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts”1  Digital/Internet Technologies Digital technologies highlight the cultural and participatory features of freedom of expression. Internet speech has two important characteristics: It routes around traditional mass media and it gloms onto it. To route around means to avoid the gatekeepers and bottlenecks of the mass media, to do an end run around them. To glom on is to appropriate or take something from mass media and make use of it. Freedom of speech is both cultural and individual. People exercise freedom by participation. It values interactivity, which is vastly provided by Internet. It is easier to cross cultural and geographical borders. Internet link provides ability to copy, modify and annotate information. Another key feature of the Internet is that users do not have to reveal their true identity in order to send e-mail or post messages on bulletin boards. Users are able to communicate and make such postings anonymously or under assumed names.  Nature of Internet Speech Internet embraces all subjects under the sun and mode of expression; it is the source of creativity and ability to build something else especially in the wake of World Wide Web. The structure of HTML code encourages copying, imitation, and linking. It is participatory and interactive. People don’t merely watch but they surf through it, they write comments and continually add things to it. The digital media products can be copied, altered, annotated, combined or mixed with other contents and produce something new. Internet speech is a social activity that involves exchange, give and take. Web constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers and buyers. No single entity controls access or membership on the Web, and there is no single point from which sites or services can be blocked. It creates new communities, cultures and subcultures. On the Internet everyone can be a publisher and can be sued as a publisher. It exemplifies freedom of speech: Cable can accommodate hundreds of channels, as can satellite broadcasting. The number of speakers on the Internet seems limitless. Maximizing the population’s active participation through the use of the Internet furthers the political, social, cultural, and economic development by strengthening democratic societies.  Breach of freedom of expression When defamatory expressions are used or printed, the law of libel applies. It has been said that for internet speech no law applies. It is not true. Law adopts itself to new medium as it was done at the advent of telegraph, telephone, radio, motion pictures and television. Law is quickly adapting to the computer. Strictly speaking, the medium is irrelevant to the cause of action. After all, a falsehood is still a falsehood regardless of how or where it is published. It is called cyber- defamation.  Defamation Defamation, when in a written permanent form, is known as libel, and oral defamation is known as slander. The internet’s capacity to carry words afar greatly increases the damage possible from a single incident of defamatory speech. But the law of defamation will equally apply even if the defamation takes place on the Internet. While web pages can include sound files, which with the use of a sound card and speakers can reproduce sounds, words, etc., the overwhelming majority of content on the internet is graphical in nature. As the internet, at least for the time being, is primarily a visual medium, and considering that the view from a screen is readily printable into a more permanent form, defamatory speech over the internet most probably falls under the rubric of libel.  Importance of Speech First, what is the force of speech? Is it the expression of personal thoughts, or is it a form of action that affects and can harm others? Nehru was a renowned orator. His most famous speech is the “Tryst with Destiny” address to the Constituent Assembly of India in New Delhi on the night of August 14th and 15th, 1947. Freedom of speech involves toleration of a great deal of nonsense, and even of matters, which are in bad taste. Free speech is simply what is left when many other things are taken out. Whether speech thus labelled ought to be regulated; and if so, how and by whom. Do we have the definition of hate speech or inciting speech?  Censorship Even under cyber age the censorship cannot be ignored. Censorship regrettably is inevitable in certain cases e.g. where the speech has clear potential to incite religious strife or hatred between communities or the expression is patently obscene without any redeeming literary or social element. “Apparently the banning itch is persistent and the Censor’s axe continues to be employed indiscriminately. No heed is paid to the Supreme Court’s wise admonition in Abba’s case that the standards set by the Censor ‘’must make a substantial allowance in favor of freedom’’. Our Supreme Court has ruled that freedom of expression cannot be curtailed because of the hyper-sensitivities of excitable persons who resent any legitimate criticism of their beliefs or their leaders. Again freedom of expression cannot be suppressed on account of threats of violence because that would tantamount to negation of the rule of law and surrender to blackmail and intimidation. Freedom of expression cannot be held to ransom by an intolerant group of people.”3  Graffiti - A form of expression The word “graffiti” is derived from the Latin word “graphium,” which means “to write.” It was originally used by archaeologists to describe drawings and writings found on ancient buildings and monuments in Pompeii, Egypt and in the Roman catacombs. In its modern day use, refers to deliberate human markings on property. Graffiti can take the form of art, drawings, or words, and is often illegal, especially when done without the property owner’s consent.4  The most basic definition of the term “graffiti” is “inscriptions or drawings scribbled, scratched, or sprayed on a surface, originally as inscribed on ancient walls.” Graffiti is often seen as being part of a subculture that rebels against authority. For some, graffiti is not only an art but also a lifestyle. It can be a matter of political practice and can form just one tool in an array of resistance techniques. In India whether it is Metros, Big cities or rural areas walls are literred with Graffiti with commercial advertisements and during Election times with messages of political parties.  Advantages of Technology During the 1990s, freedom of expression has extended to include the computerization of the way we live, work, and conduct our day-to-day affairs. Due to its capability for instantaneous global communication, the Internet has provided a new frontier for free speech and its protection within the parameters of responsibility and lawfulness. But the technologies also can produce new methods of control that can limit democratic cultural participation. Therefore, free speech values — interactivity, mass participation, and the ability to modify and transform culture — must be protected through technological design and through administrative and legislative regulation of technology.  First, the digital revolution lowers the costs of copying and distributing information. Large numbers of people can broadcast and publish their views cheaply and widely. Websites, for example, are easy to construct and easy to access. For example, the development of web logs (or bogs) allows people to publish content to the Internet with the press of a button, lowering the costs of publication and distribution even further.  The digital revolution brings to the forefront the importance of organizing, sorting, filtering, and limiting access to information, as well as the cultural power of those who organize, sort, filter, and limit access. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. The Internet allows people to shape public opinion by routing around traditional mass media. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists. Protecting freedom of speech in the digital age will require a new class of cyber lawyers, who understand the impact of technological design on free speech values and can help shape regulatory solutions that promote technologies that, in turn, will help secure the values of free expression. The digital revolution made a different kind of scarcity salient. It is not the scarcity of bandwidth but the scarcity of audiences, and, in particular, scarcity of audience attention..  Women’s Participation - International Law Violence or fear of violence also curtails women’s freedom of expression and information.1[48] Intimidated by the violence, women frequently opt not to report incidents of violence to the authorities remain in seclusion and do not participate in society. International Law - Article 19 of the Universal Declaration of Human Rights states:  “Every one has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information through any media and regardless of frontiers.”  The rights to freedom of expression and opinion are similarly stated in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). That provision also provides that these rights may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:  for respect of the rights or reputations of others; or the protection of national security or of public order (order public), or of public health or morals.” Conclusion Freedom of speech is a political right with social significance for development of life. Digital technologies have imparted new dimension and speed. Every system must work within legal framework for proper order. Internet speech must come within scope of the existing laws of censorship, defamation, obscenity, etc._____________________________________________________________________________________________________________________________

1. 79 N.Y.U.L.REV.1(2004)
2. DIGITAL SPEECH AND DEMOCRATIC CULTURE:A THEORY OF FREEDOM OF EXPRESSION FOR THE INFORMATION SOCIETY - JACK M. BALKIN*
3. Indian Express- Sunday,November 21.2004 Soli Sorabjee - Mindless Censorship.
4. http://en.wikipedia.org/wiki/graffiti_art [Dec 2004]

Author Name: Vinod K Shah