5.3 Right to Freedom of Expression

The right to freedom of expression is a fundamental human right recognized by international human rights treaties and the constitutions of a majority of countries. This right ensures that all individuals are able to freely express themselves through any media without interference in the form of censorship or the fear of reprisal. As such, it includes the right to have opinions without interference.1Universal Declaration of Human Rights (entered into force 1948). Under the right to freedom of expression, an individual’s opinion is protected and may not be criminalized, nor can an individual be subject to harassment, intimidation, and stigmatization for having a specific opinion.

However, freedom of expression is not an absolute right and may be restricted in some instances. These include when this freedom is not exercised in good faith, when it is harmful and likely to threaten law and order, or when it harms the exercise of the rights of others. However, these limits to the right to freedom of expression may only be enforced lawfully, to pursue a legitimate aim necessary in a democratic society, and in proportion to the stated aim.2Article 10 Protects Your Right to Hold Your Own Opinions. (2021). Equality and Human Rights Commission. https://www.equalityhumanrights.com/en/human-rights-act/article-10-freedom-expression

Women’s right to freedom of expression on the internet is at peril due to the prevalence of online gender-based violence (OGBV). Often, they are extremely conscious of what they post on the internet as they frequently face harassment, trolling, and hate speech for expressing themselves and their political opinions in digital spaces. Studies show that avoidance is the most common response of women to online violence – they avoid engaging with offensive content or in restorative interactions.3Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations. A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf Women also adopt strategies such as using pseudonyms, creating multiple accounts (some private, some public), and minimizing exposure to limit their reach and thereby protect their tweets.4Gurumurthy, A., & Dasarathy, A. (2022). Profitable Provocations. A Study of Abuse and Misogynistic Trolling on Twitter Directed at Indian Women in Public-political Life. IT for Change. https://itforchange.net/sites/default/files/2132/ITfC-Twitter-Report-Profitable-Provocations.pdf; Gurumurthy, A., Vasudevan,A., & Chami, N. (2019). Born Digital, Born Free? A Socio-Legal Study on Young Women’s Experiences of Online Violence in South India. IT for Change.  https://itforchange.net/born-digital-born-free-a-socio-legal-study-on-young-women%E2%80%99s-experiences-of-online-violence-south; Walsh, M.J., & Baker, S.A. (2021). Twitter’s Design Stokes Hostility and Controversy. Here’s Why, and How it might Change. The Conversation. https://theconversation.com/twitters-design-stokes-hostility-and-controversy-heres-why-and-how-it-might-change-166555. Also please note, a research study conducted by IT for Change in three South Indian states showed that young women used similar avoidance strategies to navigate online spaces. Such avoidance strategies limit women’s ability to fully realize their freedom of expression in the digital space, which includes the freedom to be free from the unlawful, harmful consequences of such expression.5OHCHR. (2021). Gender Justice and Freedom of Expression - Report of Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression. A/76/258. United Nations. https://www.ohchr.org/en/documents/thematic-reports/a76258-gender-justice-and-freedom-expression-report-special-rapporteur

Women’s freedom of expression on the internet is also curtailed by restrictive laws that unfairly limit their right to self-expression in the name of protecting them, safeguarding their modesty, and shielding society from so-called obscene and prurient content. Provisions such as Section 292 of the Indian Penal Code (IPC), 1860, and Sections 67 and 67A of the Information Technology Act (IT), 2000 (IT Act) penalize the exercise of a woman’s agency and autonomy in posting her images and videos online by terming them “indecent” or “obscene”.6Bhandari, V., & Kovacs, A. (2021). What’s Sex got to do with it? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in India. Internet Democracy Project. https://internetdemocracy.in/reports/whats-sex-got-to-do-with-it-mapping-the-impact-of-questions-of-gender-and-sexuality-on-the-evolution-of-the-digital-rights-landscape-in-india In some cases, courts also take a restrictive view of women’s online expression. For instance, in May 2020, the Orissa High Court charged a woman with abetment to suicide of her husband for exercising her agency and making an intimate video with her lover, who then allegedly shared it with her husband.7Shibani Barik v. State of Odisha, BLAPL NO. 915 of 2020, judgment dated 28 May 2020, Odisha High Court. This reflects the unfair restrictions imposed on a woman’s freedom of expression in the digital space by the legal-institutional system.

5.3.1 Constitutional source of the right

The right to freedom of expression is a fundamental right under Article 19(1) of the Indian Constitution. However, the right is not absolute and is subject to reasonable restrictions on the grounds enumerated in Article 19(2), such as the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality, etc.

The Supreme Court in Anuradha Bhasin v. Union of India (2020), held that the fundamental right to freedom of expression extends to the internet. The court further held that any restriction on this right under the grounds laid down in Article 19(2) must satisfy the tests of necessity and proportionality, which include the following components:

“(i) The goal of the restriction must be legitimate.

(ii) The restriction must be necessary.

(iii) The authorities must consider if alternative measures to the restriction exist.

(iv) The least restrictive measure must be taken.

(v) The restriction must be open to judicial review.”8Anuradha Bhasin v. Union of India, (2020) WP(C).No. 1031 of 2019, judgment dated 10 January 2020, Supreme Court of India.

In many cases, Indian courts have recognized how different forms of OGBV harm women’s freedom of expression and online participation and their right to dignity. For example, in Present Petitioner…v. Unknown,9The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court . the court correctly recognized that the accused’s act of spreading fake and scandalous news against many women and writing filthy and derogatory posts about them denied the affected women’s right to equal participation in the online space and impinged on their constitutionally guaranteed freedom and dignity. In P. Saravanakumar v. State (2013), the Madras High Court was presented with a case where a famous singer received several threats on social media including comments on character, vulgar comments, as well as rape/assault threats.10P. Saravanakumar v. State Rep., Crl.O.P.No.232 of 2013, order dated 5 August 2019, Madras High Court. The court stated that such treatment denies women the dignity accorded to them under Article 21 which guarantees the right to life. The court also recognized the real harm caused by such speech i.e. liming women's freedom and right to online participation and degrading them from the position of a rights-bearing subject.

5.3.2 International sources of the right

5.3.2.1 Conventions

  1. Universal Declaration of Human Rights (UDHR)11Universal Declaration of Human Rights (entered into force 1948). and International Covenant on Civil and Political Rights (ICCPR):12International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976).:
    Article 19 of the UDHR states that everyone has the right to freedom of opinion and expression and that this right includes the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers. Article 19 of the ICCPR also provides for the right to hold an opinion and the right to freedom of expression of everyone regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of one’s choice. Article 19.3 of the ICCPR states that the freedom of expression may be subjected to restrictions if and only if such restrictions are provided by law and are necessary for (i) respect of the rights or reputations of others; or (ii) the protection of national security, public order (ordre public), public health, or morals.
  2. European Convention on Human Rights:13European Convention on Human Rights, opened for signature 1950 (entered into force 3 September 1953).:
    Article 10 of the Convention guarantees the right to freedom of expression. It also states that the exercise of this freedom carries with it duties and responsibilities and may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and necessary in a democratic society in the interests of national security, territorial integrity, or public safety; for the prevention of disorder or crime; for the protection of health or morals; for the protection of the reputation or rights of others; for the prevention of disclosure of information received in confidence; or for maintaining the authority and impartiality of the judiciary.
  3. American Convention of Human Rights14Organization of American States. (1979). American Convention on Human Rights: "Pact of San José, Costa Rica". Registration No.17955.:
    Article 13 of the Convention states that the exercise of freedom of thought and expression shall not be subject to prior censorship, but there may be subsequent legal liability if it is expressly provided by law and is necessary to ensure respect for the rights or reputation of others and the protection of national security, public order, or public health, or morals. It further states that freedom of expression shall not extend to advocacy of national, racial, or religious hatred that constitutes incitements to lawless violence, or to any other similar illegal action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin.

5.3.2.2 UN resolutions

  1. Freedom of Opinion and Expression: Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Resolution adopted by the Human Rights Council on 19 June 2020 A/HRC/RES/43/415Freedom of Opinion and Expression: Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Resolution adopted by the Human Rights Council. A/HRC/RES/43/4. https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2FRES%2F43%2F4&Language=E&DeviceType=Desktop&LangRequested=False
  2. UN Human Rights Council Resolution on Protection of Freedom of Expression A/HRC/44/1216Freedom of Opinion and Expression: Resolution adopted by the Human Rights Council. (2020). United Human Rights Council. https://digitallibrary.un.org/record/3877197?ln=en
  3. The Promotion, Protection, and Enjoyment of Human Rights on the Internet: Resolution adopted by the Human Rights Council on 13 July 2021 A/HRC/RES/47/1617The promotion, protection and enjoyment of human rights on the Internet : Resolution. (2021). Human Rights Council. A/HRC/RES/47/16. https://digitallibrary.un.org/record/3937534?ln=en
  4. UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of Opinion and Expression CCPR/C/GC/3418International Covenant on Civil and Political Rights, 1966, Human Rights Committee, General comment No. 34, Article 19: Freedom of Opinion and Expression, CCPR/C/GC/34. https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf
  5. Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted By The Human Rights Council On 5 July 2018 A/Hrc/Res/38/519Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted by the Human Rights Council. (2018). UN Human Rights Council. A/HRC/RES/38/5. https://digitallibrary.un.org/record/1640463?ln=en

5.3.2.3 Declarations

  1. Joint Declaration on Freedom of Expression and the Internet:20International Mechanisms For Promoting Freedom Of Expression.(2011). Joint Declaration on Freedom of Expression and the Internet. https://www.osce.org/files/f/documents/e/9/78309.pdf :
    This Joint Declaration was signed by the UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media,21OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media. (n.d). https://www.osce.org/representative-on-freedom-of-media OAS Special Rapporteur on Freedom of Expression,22OAS (Organization of American States) Special Rapporteur on Freedom of Expression. https://www.oas.org/en/iachr/expression/ and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and People’s Rights23ACHPR (African Commission on Human and People’s Rights) Special Rapporteur on Freedom of Expression and Access to Information. https://achpr.au.int/en/mechanisms/special-rapporteur-freedom-expression-and-access-information  on 1 June 2011. It emphasizes the importance of the right to freedom of expression, especially in the context of the internet. The Declaration intends to play a transformative role in giving voices to billions of people and enhancing their ability to access information, goods, and services. To this end, it establishes some general principles on the applicability of freedom of expression on the internet. One such principle is that restrictions on freedom of expression on the internet are only acceptable if they comply with established international standards, including that they are provided for by law and are necessary to protect an interest which is recognized under international law.24International Mechanisms For Promoting Freedom Of Expression.(2011). Joint Declaration on Freedom of Expression and the Internet. https://www.osce.org/files/f/documents/e/9/78309.pdf

5.3.2.4 International advocacy efforts

  1. The Charter of Human Rights and Principles for the Internet:25Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf :
    The Charter enumerates certain components of the right to freedom of expression on the internet - freedom of online protest, freedom from censorship, right to information, freedom of the media, and freedom from hate speech.26Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p. 18. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf
  2. Feminist Principles of the Internet:27Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles:
    One of the important feminist principles laid down under this document is to recognize the right to sexual expression as a freedom of expression issue, no less important than political or religious expression.28Expression, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles It condemns the efforts of states and non-state actors to control, surveil, regulate, and restrict feminist and queer expression on the internet through technology, legislation, or violence.29Expression, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles

Footnotes

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