The evolution of social media has altered the communications landscape, making it possible to share thoughts and ideas across the world. The advent of this freedom raises questions about the regulation of speech on these platforms, a concern that presents itself very starkly in India. That makes a discussion paper on social media's intricate relationship with freedom of speech, which walks arm-in-arm with the legal framework governing these issues, really important.

It starts off by defining social media as interactive technologies that facilitate user-generated content and community building and talks about the main dimensions that include social networking sites, media sharing networks, and microblogging services. Subsequently, the constitutional provisions concerning freedom of speech are discussed in India, starting with Article 19(1)(a), which guarantees this right but also allows for reasonable restrictions under Article 19(2).

The paper examines the implications of Section 66A of the Information Technology Act, 2000. This section previously had stipulated some of the very serious restrictions on online expression but was revoked by the Supreme Court of India in the landmark decision of Shreya Singhal v. Union of India (2015), as arbitrary and disproportionate.

Further in the analysis, how challenges arise in new regulations that nowadays are posed by such rules as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, would allow content moderation by social media platforms but raise questions over censorship and raising of prospects of voice suppression; the article finally concludes by recommending a balanced approach that protects freedom of speech while ensuring accountability in the digital domain. Through these analyses, this research report seeks to emphasize and highlight the continued negotiations of personal expression and state control against the upbeat yet challenging Indian social media backdrop

Introduction
"Free speech isn't just about speaking. It is also about listening ..."- Tim Cook, Apple CEO

Until recently, India has been considered a haven where individuals could express themselves freely without fear of violent repercussions. However, the current situation for Indians, while still better than that of citizens in many other countries, is no longer as comforting or idyllic. This observation pertains specifically to the exercise of free speech and expression on social media platforms, which has been hindered by the arbitrary application of the nation's cyber laws, particularly Section 66A of the Information Technology Act, 2000.

To fully grasp this issue, it is necessary to first comprehend the concepts of social media and freedom of speech and expression.

• What is Social Media?
  Social media constitute interactive technologies that enable constructing, sharing, and aggregation of user-generated content through virtual communities and networks.
  
  Major characteristics of social media:
• Features and Definition:
  • Interactive Platforms: Social media allow the generation of profiles, the sharing of information, and communication with other users in textual, pictorial, or video content forms, to name a few.
  • User-Generated Content: One of the defining aspects of social media is user-generated content, which refers to all the posts, comments, photographs, and videos created by users.
  • Community Building: The websites help find people to form friendships based on areas of common interest, thereby developing their respective communities.
  • Mobile Social Media: A version of social media used together with mobile devices, incorporating factors like the user's current location (location sensitivity) or time delay between sending and receiving messages (time sensitivity).
     
• Types of Social Media:
  • Social Networking Sites: Sites used mainly for establishing connections based on one's personal or professional interest in the network, such as Facebook, LinkedIn.
  • Media Sharing Networks: Web services focused on sharing visually-based content, such as Instagram and YouTube.
  • Microblogging Services: Sites like Twitter (formerly X) where one posts short messages or ideas.
  • Community-Based Networks: Sites such as Reddit provide platforms for detailed discussions on individual subjects.

Freedom of Speech and Expression
Generally, freedom of speech and expression refers to the philosophy whereby any individual possesses a natural right to express one's opinion freely using any form of media and border unconditionally free of extra-territorial interference, including censorship, and free of the fear of repercussions, including threats and persecutions. This is an involved right. This is so because freedom of expression is not absolute and carries special duties and responsibilities with it. Therefore, it might be subjected to certain restrictions as may be provided by law.

Freedom of expression, through both spoken and written words, has been a fundamental element of human society for over 2400 years: having roots in ancient Greece and developing through different cultural and political contexts to be one of the cornerstones of modern democratic ideals.[4]The following are some of the most commonly agreed upon definitions of freedom of expression that are considered as valid international standards:

• "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." [Article 19, Universal Declaration of Human Rights, 1948 (UDHR)]
   
• "Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." [Article 19 (2), International Covenant on Civil and Political Rights, 1966 (ICCPR)]

Similarly, Article 19 (1) (a) of the Constitution of India also confers on the citizens of India the right "to freedom of speech and expression". The freedom of speech and expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. It also includes the right to propagate or publish the views of other people.[5]

The term "freedom of speech and expression" comprises any kind of quest, reception, and transfer of information or ideas irrespective of the means used. English author and revolutionary, John Milton is best known for penning the epic poem "Paradise Lost" -- the Genesis account written to "justify the ways of God to men." But if you enjoy free speech, Milton's most important book may be "Areopagitica," a short polemical pamphlet he wrote 23 years earlier, to argue "For the Liberty of unlicensed printing.".[6]

The first principle of speech and of expression is fundamentally a principle of democracy.

John Milton Contribution Milton's pamphlet is one of the earliest and most influential defenses of free speech. He argued against the Licensing Act, which imposed censorship on printed materials, asserting that truth emerges from free and open debate. His famous assertion that "Truth is most likely to emerge in a free and open encounter" encapsulates his belief in the necessity of allowing all ideas to compete without government interference[7]

Again, John Stuart Mill Contribution He further extends the understanding of free speech, thinking it to be very essential for the growth of personalities and social progress. He believed that no opinion should be presented in silence because it deprived mankind from finding truth. His work has been considered as the founding block of modern liberal thoughts about the rights of an individual.[8]

Freedom of Speech and Expression and Social Media/ Internet
Issues regarding social media free speech and expression are inherently complex and multifaceted. Social media brought unparalleled opportunities for free expression, but the challenge range spans from accountability to misinformation and to moderation of content. Deeper discussions on regulation, holding corporations responsible, and engagement by the users will frame the future contours of free expression online. It will take all of those to maintain the vivacity of public discourse as we strive toward the protection of individual rights in an increasingly digital world.

Of all the UN Special Rapporteur's roles related to the promotion and protection of the right to freedom of opinion and expression, one plays a critical role in dealing with matters related to freedom of speech and expression in particular with respect to social media and the internet. Some major findings arising from the search results below:

Mandate and responsibilities:
The mandate of the Special Rapporteur, as exercised by Irene Khan currently, relates to collecting information on violations of freedom of opinion and expression especially regarding journalists and those who work with such rights in either the online or offline realm. It covers individual complaints relating to violations and suggesting steps which could help in better protecting rights.[9]

Issues of Social Media:
As social media changes the nature of information sharing, it brings new avenues for participating in public discourse. But, this also raises a challenge of censorship and misinformation and private companies controlling speech. The Special Rapporteur argues that individuals are the same online and offline and that states enforced vague laws as a means of censoring themselves by branding it as a fight against hate speech or misinformation.[10]

Violations and International Situation:
According to recent reports, widespread violations of freedom of speech are also connected with the conflicts; similarly, an example can be seen in Gaza, when journalists are not safe. The Special Rapporteur drew attention to these facts showing the attacks on media staff undermine the universal right to information. She further clarifies discriminatory bans on protests and manifestations of support with the marginalized communities are violating international human rights norms[11].

Framework for Assessing Restrictions:
The UN has developed guidelines-the Rabat Plan of Action-accumulating, to be sure, in one document guidelines on how free speech can be distinguished from hate speech. This plan evinces a high threshold for any restrictions on freedom of expression, considering the context, intent, content, and potential harm 2. Such a framework is necessary because more and more governments resort to anti-terrorism legislation for checking dissenting voices.[12]

Thus, freedom of speech and expression has been recognized as a fundamental right in whatever medium it is exercised under the Constitution of India and other international documents

Restrictions on Freedom of Speech and Expression

Freedom of speech and expression is a right that is constitutionally guaranteed under several international and national legal frameworks. The same is not absolute as "both the International Covenant on Civil and Political Rights, 1966, and the Indian Constitution have imposed certain restrictions on this right to balance the individual freedoms with societal interests."

International Framework

ICCPR Restrictions

The freedom of expression may be limited subject to several conditions. Under Article 19(3) of ICCPR, these include:

• Respecting the rights or reputations of others: Such as preventing a publication which may expose an individual to defamation or otherwise injure his reputation by bringing public statements against him.
• National security, public order, public health or morals: Such may be restricted as are deemed requisite for the maintenance of the stability of the state, public safety or of the other like grounds of public interest.

All such restrictions must pass the three-part test:

• They must be enacted under legislation.
• They must be with a protected purpose.
• They must be related to the challenge, meaning they should not be overly vague or disproportionately overbroad.

More Provisions

Article 20 of the ICCPR further prohibits any advocacy of national, racial, or religious hatred that incites discrimination, hostility, or violence. This justifies the notion that though freedom of expression is a must, it cannot infringe upon the rights and safety of others.

Indian Context

Constitutional Provisions

Article 19(2) of the Constitution permits legislative prohibition or restriction on freedom of speech and expression on a good number of grounds, that is on:

1. Sovereignty and integrity of India
2. Security of State
3. Friendly relations with foreign States
4. Public order
5. Decency or morality
6. Contempt of court
7. Defamation
8. Incitement to an offence

These grounds reflect similar concerns that are espoused under international law once again holding national interests and societal harmony in greater esteem than unchecked expression.[15]

Censoring Social Media
Social media censorship: This is the thorn in the side of maximizing free speech expression against the objective of undesirable content. Governments, corporations, and civil society will continue to negotiate their freedom over control of cyber speech. Future advances in technology will change the strategies and implications of censorship in virtual communication.

Till now, governments across the world had made various efforts not to reveal any information before the common man by one pretext or another. And now, when such potential power of social media has been harnessed to deliver information to the masses, the Governments see it as a threat to themselves while they try to control it cautiously. Internet is the backbone of modern civilization, as it has tremendous potential and goes to the heart of the world.

Being pretty instrumental in the storage and dissemination of information and opinion, it has acquired a singular role in the functioning of democracies worldwide. Through social media and internet, the citizens can unite despite territorial limitations. Though nobody is there in person, the force of protest decreases not at all. Therefore, it is nothing but natural that governments in other parts of the world started looking at ways to censor the internet.

Mass media is also a powerful tool for communication and bonding, though the possibility of misuse of the medium calls for balanced regulation. Internet, other than playing a wholesome role, is also susceptible to abuse. By addressing the challenges put forward by cybercrimes with proper legal frameworks, states can foster a safer online environment that upholds the public interest while still allowing freedom of expression.

Many forms of cyber-crimes, defamation, invasion of privacy, incitement of offenses, racist remarks, stalking, abuse, hacking, harassment, and many more can easily be committed through social media, and once such objectionable content is uploaded, it becomes viral and hence very difficult to contain

So long as the interest of people either singly or in groups is cared for, there could be no objection to regulation by government but the trouble begins when, in its name it starts censoring i.e. begins to encroach upon civil rights of people like freedom of speech and expression etc. There are surely safeguards on this count, yet every state tends to surpass them in some way though its magnitude may vary from State to State

China's internet censorship is often described with the jargon of the Great Firewall, sometimes termed the Golden Shield Project. This evokes a concept of the very advanced system of filtering and denial that limits access to information the government deems undesirable.

The Great Firewall is an overall mechanism for internet censorship that makes use of a combination of legislative measures and high-tech technology. It has its beginning at the end of the 1990s; the Golden Shield project was put into action in 1998 by the Ministry of Public Security, which began with monitoring and controlling internet use within China, thus ending with the building of a digital fence separating Chinese cyberspace from the rest of the world.[16]

India has been one of the sour points in internet freedom, especially as portrayed by several reports from bodies like Freedom House and Reporters Without Borders.

Freedom on the Net 2012
In the Freedom House report "Freedom on the Net, 2012," India ranked "Partly Free," scoring 39 on a spectrum in which 0 stands for the most free and 100 for the least free. The score placed India 20th of 47 countries evaluated in the report .[17]

Government Control and Censorship
On 12 March 2012, Reporters Without Borders published its "Internet Enemies Report, 2012," in which it noted increased government control in India over access to the internet. India was also included in the list of "Countries under Surveillance." That is alarming and foreboding in terms of online freedom trends.[18]

More Content Removal Requests
It's stated above, that Google revealed its seventh transparency report on 27th April 2013. The report included far more numbers of requests made by the Indian government to Google for deleting specific content. In the period between October and December 2012, Google received over 2,285 requests for the deletion of 24,149 pieces of information. That's almost a double request between January and June 2012, which accounted for 1,811 requests to delete 18,070 pieces.

In the period, 2,319 requests for information concerning users of 3,467 accounts were made, which is an aggressive display on the part of authorities towards content on the Internet and private users.[19]

Legal System
This can be traced to several amendments made on the Information Technology Act in 2008, mainly prompted by these security and terrorist attacks issues. Its amendments ultimately gave the law enforcement agencies the responsibility of scanning communications over the Internet without warrant, which attracted serious criticism from the public as an advocate[20]for civil rights.

Section 69B provisions have opened up scope for surveillance and data collection that raise red flags about privacy and civil liberties violations.

Indian internet regime is thus well characterized by a multi-layered exercise in the inter-linkage of governmental supervision with rights to civil liberties. Reports from Freedom House amongst others point out that there are still existing challenges in terms of censorship, surveillance, and security-life balance on the web

The change in India's cyber law framework post 2008 is a sea of change towards increasing control by the government over cyberspace. Increased national security efforts have thrown increased attention to the impact on individual rights and freedoms in cyberspace. Finding an appropriate balance between security requirements and civil liberties becomes a major challenge as India continues on this trajectory

Cyber Laws of India and Social Media
The Indian Information Technology Act 2000 incorporated into the Indian Penal Code, a comprehensive legal framework for governance of cyber activities by means of legislation, that also encompass many cybercrimes, such as harassment and defamation as well as data theft taking place on social media. Specific provisions of these legislations, relevant case laws, and implications for users and platforms, respectively, would be critically reviewed.

Critical Enabling Legislation

1. Information Technology Act, 2000
The IT Act forms the basis of cyber law in India. It was prepared with an aim to provide for electronic governance and, at the same time, deal with crimes related to computers and the internet. Some of the important provisions of the IT Act dealing with the concerns of social media are:
• Section 66E: This is particularly concerning the violations of privacy, making the act of photographing or filming the private parts of a person without consent illegal. Such provisions become exceptionally pertinent in the case of online sharing, including social media, without consent.
• Section 67: This forbids the exhibition or transmission of obscene material in electronic format. The punishments accompanied with the repeated offense indicate that the law is against online pornography and harassment.
• Section 79: It provides safe harbour to intermediaries like social media to the extent liability for third party content is provided they follow the requirement of due diligence. This provides an assurance for Facebook and Twitter as they cannot be held liable unless they do not act with a knowledge of unlawful content.
2. IPC
The IPC further complements the IT Act as it covers offenses that could happen on social media. These include:
• Section 499: Defines defamation, which can most probably take place with false statements issued on social media and might damage a person's reputation.
• Section 509: Comprises words or gestures intended to insult the modesty of a woman, which applies to cases online.
• Section 354D: Elaborated under the Criminal Amendment Act, this section specifically deals with stalking, including online stalking in the form of frequent online harassment.
3. Landmark Cases:
• State of Tamil Nadu v. Suhas Katti (2004): For the first time under the IT Act, the convicts were penalized under Section 66 relating to the sending of obscene emails. The petitioner convicted him under Section 67 relating to transmitting obscene material electronically for the first-ever case relating to online obscenity.
• SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra (2010): This case involved civil defamation, where the Delhi High Court held that an offending post on the internet could also be dealt with under provisions of the Indian Penal Code dealing with defamation. This case established that principles of law apply irrespective of the sphere, whether physical or virtual.
• Arif Azim Case (2006): This case of identity theft involved an employee misusing credit card information gathered from his employer's system. He was convicted under various sections of the IPC as well as the IT Act, showing how existing laws can be molded to deal with cybercrimes that aren't specifically defined in the IT Act.
• National Association of Software and Service Companies v. A.P. Kharat (2006): The High Court termed phishing activities that deceived individuals regarding the genuineness of NASSCOM for obtaining personal details of those users as a form of fraud under the IPC.

Challenges and Consequences
India cyber law had been framed with an intention to protect users and to control social media content. However, still, many challenges are facing:

• Freedom of speech must be balanced with regulation: The Section 66A case has highlighted the concern of overreach in the regulation of online speech against appropriate safeguards that can prevent abuse.
• Evolving Nature of Cybercrime - Technological trends evolve, developing new forms of cybercrime that technology may not be properly bound by laws. As such, legislation must continue being changed and replaced constantly.
• Enforcement problems: Stronger Laws always pose enforcement problems because the digital literacy of police agencies can be well differential, and tracking offenders across jurisdictions is quite difficult.

Indian cyber laws, currently, have provisions under both the IT Act and the IPC, giving a holistic framework dealing with crimes related to social media. Notable judgments have been made to clarify the interpretation and applications of these laws while rendering accountability and respect for individual rights. Ongoing issues in enforcement and balancing regulation with freedom of expression introduce the need for adaptable legal frameworks against this fast-changing digital landscape.

Conclusion
Social media serves as a powerful platform for exercising freedom of speech and expression. However, the increasing misuse of unlawful activities has prompted government efforts to censor them. While the need for legal oversight arises from social media abuse, there are valid concerns about potential infringement of civil liberties as an unavoidable result of censorship.

The preferable approach is to regulate social media rather than censor it. Unfortunately, India's current cyber laws are inadequate and inappropriate for this purpose. An examination of existing IT legislation reveals that the government wields excessive and unaccountable authority in managing cybersecurity. However , these laws fail to effectively curb social media misuse. Consequently, specific legislation is necessary to regulate social media.

Implementing such regulation, however, presents numerous practical challenges. The distinction between exercising one's rights and infringing upon others' is often blurred. In the realm of social media, one person's freedom of expression may lead to privacy invasion or defamation of another. Moreover, perceptions of objectionable content vary among individuals. What some consider a harmless cartoon may offend others. Similarly, interpretations of hate speech, racist comments, and religious sentiments differ among individual .

Considering these factors, it is recommended that the government establish a committee of technical experts. This group should investigate all potential aspects of social media use and misuse, and propose suitable regulatory measures that do not impede citizens' civil rights. [28]

End Notes:

1. *
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Written By: Divyansh Jain, Student, Department of Law, Mohanlal Sukhadia University , Udaipur
E-mail: [email protected]