Freedom of Expression and Censorship in the Legal Landscape

By-RIDDHIMA GROVER, STUDENT OF BHARATI VIDYAPEETH INSTITUTE OF MANAGEMENT AND RESEARCH (DEEMED TO BE UNIVERSITY)

Introduction

Freedom of expression is the right to express one’s opinions and ideas without fear of retaliation, censorship, or legal sanction. It is a fundamental human right that is essential for democracy, human dignity, and social progress. However, freedom of expression is not absolute and may be subject to limitations in certain circumstances, such as when it harms the rights and reputations of others, incites violence, or threatens national security. Censorship is the suppression or alteration of information or expression that is deemed objectionable, harmful, or inconvenient by a government, media outlet, or other authority. Censorship can take many forms, such as banning, blocking, filtering, deleting, or manipulating content. Censorship can have negative impacts on society, such as stifling creativity, diversity, and innovation, undermining trust and accountability, and violating human rights. The main question that this essay will address is: How can we balance the right to freedom of expression with the need to protect public order, morality, and security? To answer this question, the essay will examine the following aspects:

• The legal and ethical frameworks that govern freedom of expression and censorship in different countries and regions
• The main challenges and controversies that arise from the implementation and enforcement of these frameworks, such as the role of social media platforms, the rise of misinformation and hate speech, and the impact of COVID-19 pandemic
• The possible solutions and recommendations that can help promote and protect freedom of expression and censorship in a fair, transparent, and consistent manner.

Freedom of Expression: A Fundamental Right

Freedom of expression is the right to express one’s opinions and ideas without fear of retaliation, censorship, or legal sanction. It is a fundamental human right that is essential for democracy, human dignity, and social progress. However, freedom of expression is not absolute and may be subject to limitations in certain circumstances, such as when it harms the rights and reputations of others, incites violence, or threatens national security. Freedom of expression covers not only the content of the expression, but also the means and modes of communication, such as speech, writing, printing, broadcasting, artistic expression, and the internet. Freedom of expression also includes the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers and boundaries. Freedom of expression is closely related to other rights, such as freedom of thought, conscience, and religion, freedom of assembly and association, and the right to participate in public affairs.

Censorship: A Necessary Evil?

Censorship refers to the suppression, banning, or deletion of speech, writing, or images that are considered to be indecent, obscene, or otherwise objectionable. Censorship can be imposed by a government authority, sometimes by a religious authority and occasionally by private organizations. Censorship can take many forms, such as banning, blocking, filtering, deleting, or manipulating content. Censorship can have negative impacts on society, such as stifling creativity, diversity, and innovation, undermining trust and accountability, and violating human rights

Censorship is often justified by various reasons, such as national security, public order, protection of morals, or respect for the rights and reputations of others. Censorship may aim to prevent the disclosure of sensitive information, the incitement of violence or hatred, the promotion of illegal or harmful activities, or the defamation of individuals or groups. Censorship may also reflect the dominant ideology, values, or interests of a certain authority, institution, or community

Here are some possible case studies where censorship was deemed necessary:

• In 2019, the Indian government imposed a complete internet shutdown and movement restrictions in the Jammu and Kashmir region, citing the need to maintain public order and national security amid a political crisis. The internet shutdown lasted for more than seven months, affecting the access to information, communication, education, health, and business of millions of people. The Supreme Court of India ruled that the indefinite suspension of internet services was illegal and ordered the government to review the shutdown orders against the tests of necessity and proportionality.
• In 2015, the French government declared a state of emergency after a series of terrorist attacks in Paris, which killed 130 people and injured hundreds more. The state of emergency gave the authorities sweeping powers to conduct raids, searches, arrests, and censorship without judicial oversight. The government also blocked several websites and social media accounts that were allegedly linked to terrorism or inciting violence. The state of emergency was extended several times until 2017, raising concerns about the erosion of civil liberties and human rights in France.
• In 2013, the Chinese government launched a nationwide campaign to crack down on online rumors, which were seen as a threat to social stability and the legitimacy of the ruling Communist Party. The campaign targeted bloggers, journalists, activists, and ordinary citizens who posted or shared information that was deemed to be false, defamatory, or harmful to the public interest. The campaign resulted in the detention, arrest, or prosecution of hundreds of people, as well as the deletion or blocking of millions of online posts and accounts.

The Conflict: Freedom of Expression vs. Censorship

Freedom of expression and censorship often clash in various contexts and situations, such as when governments, media outlets, or other authorities try to suppress or control information or expression that they deem objectionable, harmful, or inconvenient. Here are some examples of such instances:

• In 2019, the Indian government imposed a complete internet shutdown and movement restrictions in the Jammu and Kashmir region, citing the need to maintain public order and national security amid a political crisis. The internet shutdown lasted for more than seven months, affecting the access to information, communication, education, health, and business of millions of people.
• In 2015, the French government declared a state of emergency after a series of terrorist attacks in Paris, which killed 130 people and injured hundreds more. The state of emergency gave the authorities sweeping powers to conduct raids, searches, arrests, and censorship without judicial oversight. The government also blocked several websites and social media accounts that were allegedly linked to terrorism or inciting violence
• In 2013, the Chinese government launched a nationwide campaign to crack down on online rumors, which were seen as a threat to social stability and the legitimacy of the ruling Communist Party. The campaign targeted bloggers, journalists, activists, and ordinary citizens who posted or shared information that was deemed to be false, defamatory, or harmful to the public interest

These instances raise important legal and ethical questions about the balance between the right to freedom of expression and the need to protect public order, morality, and security. Here are some legal cases that highlight this conflict:

• Bhasin v. Union of India: The Supreme Court of India has ruled that indefinite suspension of Internet services would be illegal under Indian law and orders to shut down the Internet must satisfy the tests of necessity and proportionality. The court reiterated that freedom of expression online enjoys constitutional protection but can be limited in the interest of national security.
• S.A.S. v. France: The European Court of Human Rights upheld the French law that banned the wearing of full-face veils in public, finding that it pursued the legitimate aims of protecting the rights and freedoms of others and ensuring the respect for the minimum requirements of life in society. The Court recognized that the law interfered with the applicants right to manifest their religion, but held that it was proportionate to the aims pursued.
• R. v. Zundel: The Supreme Court of Canada struck down a provision of the Criminal Code that prohibited the publication of false news, finding that it violated the right to freedom of expression. The Court held that the provision was too vague and broad, and that it could potentially criminalize any unpopular or unconventional expression. The Court also noted that the marketplace of ideas was the best way to combat false or misleading information.

Striking a Balance

Balancing freedom of expression and censorship is a complex and dynamic challenge that requires constant evaluation and adjustment. Freedom of expression is a fundamental human right that enables individuals to express their opinions and ideas, access and share information, and participate in public discourse. Censorship is the suppression or alteration of information or expression that is deemed objectionable, harmful, or inconvenient by a government, media outlet, or other authority. Censorship can have negative impacts on society, such as stifling creativity, diversity, and innovation, undermining trust and accountability, and violating human rights. However, freedom of expression is not absolute and may be subject to limitations in certain circumstances, such as when it harms the rights and reputations of others, incites violence, or threatens national security.

The role of the judiciary and policy makers is to maintain a balance between freedom of expression and censorship that respects the principles of legality, necessity, and proportionality. The judiciary is responsible for interpreting and applying the laws and regulations that govern online activities, including those related to social media platforms. The judiciary must ensure that any restrictions on freedom of expression are prescribed by law, pursue a legitimate aim, and are necessary and proportionate to the aim pursued. The judiciary must also protect the rights and interests of individuals and groups who are affected by censorship, such as journalists, activists, and minorities. The judiciary must also uphold the standards of due process and fair trial, and provide effective remedies for violations of freedom of expression.

Policy makers are responsible for designing and implementing laws and regulations that regulate online activities, including those related to social media platforms. Policy makers must ensure that any laws and regulations are consistent with international human rights standards and best practices, and that they reflect the views and needs of various stakeholders, such as civil society, academia, and the private sector. Policy makers must also ensure that any laws and regulations are transparent, clear, and accessible, and that they provide adequate safeguards and oversight mechanisms to prevent abuse and arbitrariness. Policy makers must also foster a culture of dialogue and cooperation among different actors, such as governments, companies, and users, to address the challenges and opportunities of the digital age.

Some suggestions for improving laws and regulations to ensure a fair balance between freedom of expression and censorship are:

• Adopting a human rights-based approach to internet governance, that recognizes the internet as a public good and a platform for the realization of human rights, and that ensures that any regulation or moderation of online content is guided by the principles of human dignity, equality, and non-discrimination
• Strengthening the legal and institutional frameworks that protect freedom of expression online, such as by repealing or reforming laws that criminalize or restrict legitimate expression, such as defamation, sedition, or blasphemy law, and by establishing independent and impartial bodies that oversee and review the decisions and actions of authorities and intermediaries.
• Improving the content moderation processes of social media platforms, such as by enhancing the transparency, accountability, and consistency of their policies and practices, by providing clear and accessible mechanisms for users to report, appeal, and remedy grievances, and by engaging with civil society and experts to develop and implement human rights-respecting standards and guidelines
• Promoting digital literacy and awareness among users, such as by providing education and training on how to access, evaluate, and use information online, by encouraging critical thinking and media literacy, and by fostering a culture of respect and tolerance for diverse opinions and perspectives
• Supporting the role and safety of journalists and other online actors, such as by providing legal and technical assistance, by ensuring their protection from threats and attacks, and by recognizing and celebrating their contributions to the public interest and the democratic process

Conclusion

• Freedom of expression is the right to express one’s opinions and ideas without fear of retaliation, censorship, or legal sanction. It is a fundamental human right that is essential for democracy, human dignity, and social progress.
• Censorship is the suppression or alteration of information or expression that is deemed objectionable, harmful, or inconvenient by a government, media outlet, or other authority. Censorship can have negative impacts on society, such as stifling creativity, diversity, and innovation, undermining trust and accountability, and violating human rights.
• Freedom of expression and censorship often clash in various contexts and situations, such as when governments, media outlets, or other authorities try to suppress or control information or expression that they deem objectionable, harmful, or inconvenient.
• The role of the judiciary and policy makers is to maintain a balance between freedom of expression and censorship that respects the principles of legality, necessity, and proportionality.
• Some suggestions for improving laws and regulations to ensure a fair balance between freedom of expression and censorship are: adopting a human rights-based approach to internet governance, strengthening the legal and institutional frameworks that protect freedom of expression online, improving the content moderation processes of social media platforms, promoting digital literacy and awareness among users, and supporting the role and safety of journalists and other online actors.

In conclusion, freedom of expression and censorship are two sides of the same coin, and both have benefits and drawbacks for individuals and society. The challenge is to find a balance that respects the rights and interests of all parties involved, and that fosters a culture of openness, dialogue, and tolerance. The future of freedom of expression and censorship depends on the actions and decisions of various actors, such as governments, companies, users, and civil society, and on the development and innovation of technology, such as artificial intelligence, blockchain, and encryption. The future of freedom of expression and censorship also depends on the values and norms that we uphold and promote, such as human dignity, equality, and non-discrimination. 

References

1. Article 19. (2019). Defining censorship. https://www.article19.org/resources/defining-censorship/
2. United Nations. (1948). Universal declaration of human rights. https://www.un.org/en/about-us/universal-declaration-of-human-rights
3.  Barendt, E. (2005). Freedom of speech. Oxford University Press.
4.  UNESCO. (2019). Media and information literacy: Reinforcing human rights, countering radicalization and extremism. https://unesdoc.unesco.org/ark:/48223/pf0000371245
5.  Bhasin v. Union of India, (2020). Supreme Court of India. https://main.sci.gov.in/supremecourt/2019/10817/10817_2019_4_1501_21151_Judgement_10-Jan-2020.pdf
6. Reporters Without Borders. (2020). World press freedom index 2020. https://rsf.org/en/ranking
7. FIDH. (2016). France: A permanent state of emergency. https://www.fidh.org/en/region/europe-central-asia/france/france-a-permanent-state-of-emergency
8. S.A.S. v. France, (2014). European Court of Human Rights. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-145466%22]}
9. King, G., Pan, J., & Roberts, M. E. (2017). How the Chinese government fabricates social media posts for strategic distraction, not engaged argument. American Political Science Review, 111(3), 484-501. https://gking.harvard.edu/files/gking/files/50c.pdf
10. UN Human Rights Council. (2018). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. https://undocs.org/A/HRC/38/35