The Curious Case of Freedom of Speech viz-a-viz Criminal Intimidation: A Social Media Chapter
Social Media has now become the new world order. The anonymity it indulges has quickly turned into a platform for offenders to threaten and intimidate. Anyone with a smartphone and an internet connection, can, in the comfort of never having to disclose their identity, say things they could or would never say in person. Being anonymous is what gives them extra leverage over their targets.
The rate of Cybercrime related offences is skyrocketing daily, Revenge Porn, non-consensual morphing of photographs, breach of privacy, cyberstalking, etc, have become much more common in the virtual world. However, these virtual actions have real life repercussions. People have been known to take their own lives after an online kerfuffle went wrong, upon which they received actual life threats by one or several unknown entities. In criminal cases, the accused have been known to threaten victims into withdrawing their suit altogether behind the veils of Social Media, hence intimating mental health issues among social media users. These repercussions also include invasion on freedom of speech and in some extreme cases the sovereignty, integrity and security of States. Such instances not only threaten the victims but the very purpose of the Criminal Justice System itself, urging it to bring corroborative laws before Cyber bullying is normalized.
An offender using online means to communicate his threat composes a suit of Criminal Intimidation which comes under Section 503 of the Indian Penal Code,1860. This Section merely requires a threat that has been communicated to a target regardless of the medium used to communicate the aforementioned threat, as in this case, the Social Media. If the threat, however, is made in complete anonymity or their personal identity being wilfully concealed while making said threat, the charges will be covered under Section 507 of the Indian Penal Code,1860.
To fully grasp the concept of Criminal Intimidation we must first know what factors constitute an “injury”. The term is defined under Section 44 of the Indian Penal Code as “any harm whatsoever illegally caused to any person, in body, mind, reputation or property”. However, any mere threat to injure would not sum up to Criminal Intimidation, intention is considered to be the spirit of the offence. Further, the intention should be to cause alarm to that person; or to make them perform any act which they are not legally bound to do; or to omit any act which they are legally entitled to perform. If they are forced to do all of these acts as a means to avoid execution of such a threat, it would amount to Criminal Intimidation. Mere usage of filthy language does not satisfy the conditions laid down under Section 503.
Moreover, it is inconsequential as to whether or not alarm was caused by the accused person, rather it is sufficient that the alarm was intended toward a person being threatened. The threat made may not be a direct threat, it may not even be made in the presence of the person threatened. What is essential is for a threat to be made with the intent of causing alarm to the targeted person. The threat must also be of a nature that can be executed by the accused himself or by any other person. It must be made with an intention or for the purpose of causing alarm or influencing the mind of the target.
The Supreme Court elaborated the scope of Section 503, IPC in Romesh Chandra Arora vs. State (1960). In this case, the accused-appellant was charged with Criminal Intimidation. The accused threatened person X and his daughter, of injury to reputation by releasing a nude picture of the girl unless money was paid to him. The intent was to cause alarm to them. The Court stated that the motive of the accused was to cause alarm to get the money and to ensure that he did not go ahead with the threat of releasing the damaging photographs on a public platform.
Gradually even Section 503 was rendered down, the cause, Social Media, where an opinion, a comment or even a thought bubble spreads like wildfire. Some people might feel threatened without the person responsible or the accused ever intending to do so and without intention, the case of criminal intimidation does not exist. Another drawback of using an online medium to communicate is that the essence of a statement can very easily get lost in translation, and so in Social Media, a place filled with crass comments and over the top memes, it’s easy to misinterpret a sarcastic remark for an actual threat.
The only place that covers Criminal Intimidation apart from the IPC is Section 66A of the Information Technology Act, 2000. It speaks of punishment with regard to any person sending information which he knows to be false with the intention of Criminal Intimidation, injury or insult. Section 66A was scraped off however, by the Apex Court itself in 2015 under the landmark judgement of Shreya Singhal v. Union of India on the grounds that it violated the Fundamental Right of Freedom of speech and expression enshrined under Article 19 of the Constitution and so as of now, there is no legislation apart from IPC that deals with Criminal Intimidation. The framing of section 66A goes well beyond this brief, as it also criminalised speech that is “grossly offensive” or that aimed to cause, “annoyance”, “inconvenience”, “obstruction” or “ill will”. As none of these instances constitute a serious danger for human rights, their criminalisation could not be considered legitimate under any circumstances.
Observing the speed and scale with which messages spread on the Internet, the question of under which conditions Freedom of speech can be legitimately restricted has ergo been raised with great concern. Freedom of speech remains one of the fundamental principles of a democratic and pluralistic society. While this right can be restricted in exceptional cases, it stands without question that Freedom of speech and expression enables the exercise of other human rights. Fighting against hate-speech, or for equality, and freedom of speech are, thus, not only compatible with each other; instead, they exist in a mutually supportive relationship as they make essential contributions to safeguard human dignity.
The Constitution of India protects our Fundamental Right to Freedom, and the Freedom of speech and expression in furtherance of that, under Article 19 of the Constitution. This law however glorious does not stand absolute. The Honourable Court in the case S. Khushboo v. Kanniamal & Anr, held that - “the importance of Freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views'. Article 19 is also equipped with a clause of reasonable restriction to the Freedom of speech and Criminal Intimidation may come under reasonable restriction, depending on the nature of the intimidation. But by applying Section 503 to a plethora of cases, the Courts have upheld its validity and in essence its constitutionality. Distinguished critics argue that Section 503 is poorly framed, nearing being too vague and sets extremely low standards for criminalization of free speech.
The fear of injury however, does not justify the suppression of Free Speech. Communication of knowledge, opinions and ideas is how a rational man overcomes his irrational fears. Knowledge is the absence of ignorance but ignorance is the cause of fear. If one is to justify the suppression of freedom of2 speech, there better exist such a reasonable situation that induces fear. For instance, in a case where injury lurks in the form of serious imminent violence or that something inevitably evil were to happen if free speech was practised. The Indian law today recognizes that the Fundamental right to freedom of speech cannot be used to intimidate or even attempt to intimidate others. Section 503 stands for the fact that no one can use their Right to Freedom of speech to incite fear among others or cause alarm.
Thus arises the question, whether there is a need for a Regulatory Authority with powers to ban or suspend coverage of ‘objectionable content’, we believe that it will be rather ill-fitted to grant a regulatory authority such powers on social media and over the Internet more broadly, be this a self-regulatory authority or one with statutory powers.
Having such an authority would nullify the contrast between traditional media and social media as it would by default treat their role in society and the influence of their speech as the same. When censorship is considered, the facts of the situation should always be assessed against clearly defined thresholds. These thresholds include the extent or reach of the speech and the probability of action in its response, aside from the severity, intent, content, imminence and context. In the majority of cases, the impact of the words by ordinary individuals will not be the same as that of mainstream media when assessed according to these criteria.
Indeed, it is important to remember that where social media is concerned, it is the users, not the platform owners, who are the authors of the messages. In other words, Internet intermediaries such as Facebook, Twitter and WordPress, on which ordinary people publish their messages, are fundamentally different from traditional media: while traditional media produces content, Internet intermediaries are merely messengers.
Although there exists such content on the Internet that seems socially objectionable, much of it is not objectionable in the legal sense at all. However, determining whether or not a specific chain of facts violates the law is up to the Judiciary or an independent authority which is free of political, commercial or any other unjust influences. Where discretionary powers are given to an authority to make such assessments, it is bound to lead to misuse, further contributing to the dismay that already exists, as Indian citizens increasingly censor themselves.
The establishment of a regulatory authority thus will deplete the empowering force that the Internet has become for ordinary people, particularly the boost it has given to them to express themselves on a wide range of issues that concern them. While this requires speech that is sometimes controversial, it is also greatly beneficial, including forcing greater transparency and accountability on a wide range of power centres in our country, be they political or commercial. If these buds of active citizenship that so many Indians have embraced enthusiastically are to flower, freedom of expression should be protected and promoted, rather than curtailed.
In any case, action should be taken against speech that most certainly violates the law. Section 69A of the IT Act empowers the Central Government to block content “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”.
Simultaneously, the Intermediary Guidelines Rules, issued in 2011 under section 79 of the IT Act, makes it possible for anyone to Report to the intermediary, the content that they believe infringes the Rules. Much like Section 66A, the Intermediary Guidelines Rules face procedural and substantive shortcomings that have created another limitation on the Freedom of speech and expression, and protection of this Freedom online would require these Rules to be revised extensively. For example, one aspect of the Intermediary Guidelines Rules heavily criticised is that the Rules have effectively privatised censorship by relying on the intermediaries who now make the assessment as to whether or not content is unlawful, rather than compelling the Judiciary or an independent body to do so.
However, the proposition that intermediaries are tasked to take down unlawful content stands undisputed in the country. Rather than establishing a regulatory authority, a reexamination of the Intermediary Guidelines Rules can be useful to devise a mechanism that protects free speech while also effectively dealing with illegal content on the Internet. Such a system would require at its base, judicial intervention or review if content is to be removed, as well as a recognition of the creator’s right to be informed and their right to object/appeal.
In addition to such a review, there remains one more area that demands attention: that of non-legal measures to fight objectionable posts online. Whenever objectionable content on the Internet is discussed, India has been burried under censorship and arrests as means to tackle such speech. Yet in a country as diverse as India, where what might be offensive to one community might be common sense to another, such an approach alone will never fully resolve the problem of objectionable speech.
Since there exists a considerable gap between speech that is socially unacceptable and that which is legally unacceptable, the law shall pronounce plenty of this content uncontested. But more importantly, as this fosters a culture of intolerance, a purely legal approach might leave severe repercussions on the citizens' sense of community. What we need, therefore, is a far more extensive handbook, containing positive measures that aim towards nurturing public discussion and a culture of tolerance, ultimately changing social behaviour on the Internet.
Such a handbook must carry, among other things, both education for children and public awareness campaigns about the ways in which Indians’ Fundamental Rights and concomitant obligations translate to the Internet; about the damage hate speech and other forms of objectionable speech cause to the social fabric of the country; and about the ethical actions all of us can take while facing abuse or other forms of objectionable content. It must also include the active use of counter-speech and social dialogue, involving public denouncement of instances of hate speech by public officials. It must demand consideration; The absolute shunning of abusive acts and other objectionable speech by community leaders and influential figures can go a long way in clearing the road off such content indeed.
Such measures will provide a boost to the wide range of non-legal strategies that Internet users in India are working on to counter objectionable content online. More notable is the fact that all non-legal measures rely on Freedom of speech and expression, rather than restricting this right to combat objectionable content. It is important to remember that overall, fighting against hate speech, or for equality, and strengthening Freedom of speech are not simply compatible with each other. Instead, they exist in an affirming, mutually reinforcing relationship as they make complementary yet essential contributions to safeguard human dignity.
Currently, unfortunately, initiatives that recognise these repocarcations are sorely lacking in India. Rather than establishing a social media regulator, initiatives such as these require greater attention that should urgently be devoted. The Indian Penal Code, 1860 is an archaic law and some of its provisions do not cater to contemporary needs. There have been several amendments to the legislation, but some issues still remain uncontemplated. The scope of these provisions is ever-extending as the law is constantly evolving due to Judicial pronouncements. Legislative reforms in the area would help in achieving this goal. Hence, it is the solemn duty of law to stand by its subjects as a shield against offenders no matter what the platform. It is therefore apposite that the law take necessary steps to curb this menace and ensure digital welfare to all.
‘The Promotion, protection, and enjoyment of human rights on the Internet’. Resolution A/HRC/RES/20/8, adopted by the UN Human Rights Council at its 31st meeting, on 5 July 2012.
The importance and value of establishing clear thresholds in battling hate speech is further discussed in Kovacs, Anja (2012). Hate Speech and Freedom of Expression: How to Battle the Former while Strengthening the Latter – Recommendations for Governments, Media, People. New Delhi, Internet Democracy Project, August 2012
Nick Jones, Social Media and the New World Order, THE HUFFINGTON POST (June 25, 2013),
See in particular Art. 19(3), ICCPR, on what constitutes reasonable restrictions.
For more examples of non-legal initiatives that a range of actors can take, see Kovacs (2012).
Campus Law Centre
University of Delhi