LOG DIARY SUBMISSION

Submitted by -
Aarcha Gupta; Roll No- 17010223060

Division-D

B.A. LL.B. (2017-22)

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

IN

September, 2019

Under the guidance of

Ms. Meera Mathew

Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

 CERTIFICATE

The project titled “Log Diary Submission” submitted to the Symbiosis Law School, NOIDA
for Interpretation of Statutes as part of Internal assessment is based on my original work
carried out under the guidance of Ms. Meera Mathew from July 2019 to September 2019. The
research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the project has been duly
acknowledged.

We understand that we could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidates

Date: 12th September 2019

 ACKNOWLEDGEMENTS

“It is not possible to prepare a research project without the assistance & encouragement of
other people. This one is certainly no exception.” On the very outset of this report, we would
like to extend my sincere & heartfelt obligation towards all the personages who have helped
us in this endeavor. Without their active guidance, help, cooperation and encouragement, we
would not have made headway in the project.

We are ineffably indebted to Ms. Meera Mathew for their conscientious guidance and
encouragement to accomplish this assignment. We are extremely thankful and pay our
gratitude to them for their valuable guidance and support on completion of this project in it’s
presently. We also acknowledge with a deep sense of reverence, our gratitude towards our
family, who have always supported us morally.

At last but not the least gratitude goes to all of our friends who directly or indirectly helped us
to complete this project report.
 INDEX

Sr. CONTENT
No.
1 CIVIL LAW NATION – ITALY
 Belpeitro v Italy.
2 INDIA- SUPREME COURT
 Shreya Singhal v UOI
3 USA
 Virginia v Black
4 SOUTH AFRICA
 Afri-forum v Melema and others
 RIGHT TO FREEDOM OF SPEECH AND EXPRESION

CIVIL LAW NATION – ITALY, EUROPE AND CENTRAL ASIA

Name of the case - Belpeitro v Italy.

Date of Decision – September 24, 2013.

Name of the Court- European Court of Human Rights (ECtHR).

Case Number – No. 43612/10.

Type of Law – International/ Regional Human Rights Law.

 FACTS
1. Two prosecutors, Lo Forte and Caselli, from Palermo took legal action for defamation
against Maurizio Belpietro, the editor of the national daily newspaper Il Giornale,
entitled ‘Mafia, tredici anni di scontri tra P.,e carabinirei’ ( Mafia, 13 years of clashes
between the public prosecutors and police) after the paper published an article that
claimed the prosecutors had mismanaged an inquiry into Mafia activities and
contained strong accusations against them.
2. Belpietro was initially acquitted by the District Court of Milan but was sentenced on
appeal to four months imprisonment (suspended) and the payment of €100,000 for
compensation and legal expenses. The Court of Cassation confirmed the sentence.
3. Belpietro, even though he was not the author of the article, was responsible for
checking its content as the editor of the paper under Article 57 of the Italian Criminal
Code.
4. The author of the piece, Senator Raffaele Iannuzzi, could not be prosecuted because
he was protected by parliamentary immunity. According to Italian law, members of
Parliament cannot be held accountable for opinions expressed in relation to their
public mandate.
  ISSUES

Q. Does parliamentary privileges extend to press?

 RULES
 Article 10 of the Italian Constitution.
 Article 8 of the Italian Constitution.
 Article 57 of the Italian Criminal code.
 Article 68(1) of the Italian Constitution- Parliamentary immunity.

 ANALYSIS

Regarding the liability of Il Giornale’s editor, the prosecutors relied on article 57 of the
criminal code, making the director of a newspaper responsible for lack of control when
publishing defamatory statements without sufficient factual basis. Separate proceedings were
brought against the senator, which ended in 2007 with a finding that there was no case to
answer, on the grounds that the senator had expressed his views in his capacity as a member
of the senate, being shielded by parliamentary immunity under article 68(1) of the Italian
constitution. The Italian senate accepted that the statements published were related to the
exercise of his parliamentary functions.

The editor made an application to the European Court of Human Rights, alleging that his
conviction for defamation had violated his freedom of expression under Article 10. After
reiterating extensively the general principles of its relevant case law on the issue, including
the balance that has to be found between the prosecutors’ reputation rights under Article 8
and the newspaper editor’s right to freedom of expression under Article 10, the Court found
that the Italian authorities had not breached Article 10 in finding the editor liable for
publishing the senator’s article, which had tarnished the prosecutors’ reputation. Although the
article concerned an issue of importance for society, which the public had the right to be
informed about, some of the allegations against the prosecutors were very serious, without
sufficient objective basis.

Furthermore, the Court supported the approach expressed in article 57 of the Italian criminal
code imposing on a newspaper editor the obligation to control what is published, in order to
prevent breaches of the law and to prevent the publication of defamatory articles in particular.
This duty did not disappear when it concerned an article written by a member of parliament,
as otherwise, according to the Court, it would amount to an absolute freedom of the press to
publish any statement of parliamentarians in the exercise of their parliamentary mandate,
regardless of its defamatory or insulting character

. The Court also referred to the fact that the senator had been convicted in the past for
defaming public officials, and the newspaper had given a prominent place to the senator’s
article, accompanied by a picture and subtitles, contributing to the allegations resulting in an
attack on the professional reputation of the members of the judiciary. It followed, according
to the Court, that holding the editor liable for having published the defamatory article met the
conditions of Article 10: it was prescribed by law, aimed at protecting reputation, and was
necessary in a democratic society.

However, as the Court considered the sanction of imprisonment and the high award of
damages as disproportionate to the aim pursued, it came to the conclusion that solely for that
reason the interference by the Italian authorities amounted to a breach of Article 10. The
Court drew particular attention to the fact that a sentence of imprisonment (even if
suspended) can have a significant chilling effect, and that the conviction was essentially for
not having executed sufficient control before publishing a defamatory article. Therefore there
were no exceptional circumstances justifying such a severe sanction. A unanimous Second
Section concluded that Italy had violated Article 10, awarding the editor 15,000 euro in
damages and costs.

 CONCLUSION / SUGGESTION

The holding in Belpietro is consistent with the ECtHR’s prior rulings regarding the infliction
of severe punishments for crimes related to the exercise of freedom of expression. The
ECtHR recalled the case of Cumpănă v. Romania, where it had previously affirmed the
principle that imprisonment can only be considered appropriate in exceptional circumstances,
and certainly not in ordinary cases of defamation.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Following are the criticisms:

Firstly, The Court nowhere applied the principle from the unanimous Raichinov v.
Bulgaria opinion, that criminal proceedings for defamation are only proportionate in ‘certain
grave cases,’ such as for hate speech or incitement. Moreover, nowhere does the Court apply
the Kuliś v. Poland opinion that, due to the dominant position those in power occupy, they
should display restraint in resorting to criminal proceedings for defamation, especially where
other means are available

Secondly, the standard of review should have been more exacting, as the Court arguably
should have applied two seminal Grand Chamber judgments which deal with defamation,
namely Bladet Tromsø v. Norway, where the ‘most careful scrutiny’ standard was applied,
and Nilsen and Johnsen v. Norway where ‘strict scrutiny’ was applied. 

Thirdly, absolving newspaper editors of criminal liability under Italian law for failing to
ensure their newspapers do not print defamatory articles written by parliamentarians. The
Court had a number of options: it could have focused on the criminal liability aspect of the
Italian law, and held that while parliamentary immunity should not extend to newspaper
articles, holding editors subject to criminal conviction would violate Article 10 (while
subjecting editors to civil liability would be consistent with Article 10). Instead it chose to
allow the Italian law pass Article 10 scrutiny. The consequence is an indirect reduction of the
impact of the parliamentary privilege which the Court itself in earlier cases considered as a
principle constituting ‘a long-standing practice designed to ensure freedom of expression
among representatives of the people and to prevent the possibility of politically-motivated
prosecutions, interfering with the performance of parliamentary duties’ (A. v. UK).
 INDIA - SUPREME COURT

Name of the case – Shreya Singhal v UOI.

Date of Decision – 24th March 2015.

Name of the Court- Supreme Court of India.

Details of the bench – J. Chelameswar, Rohinton Fali Nariman.

Case No. W.P. NO. – 167 OF 2012.

Type of Law – Information Technology act, Constitutional Law.

 FACTS
1. Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police
in 2012 for expressing their displeasure at a bandh called in the wake of Shiv Sena
chief Bal Thackery’s death.
2. The women posted their comments on the Facebook. The arrested women were
released later on and it was decided to close the criminal cases against them yet the
arrests attracted widespread public protest.
3. It was felt that the police has misused its power by invoking Section 66A inter alia
contending that it violates the freedom of speech and expression.

 ISSUES

Q. Whether Section 66A of ITA violated the right to freedom of expression guaranteed under
Article 19(1)(a) of the Constitution of India?

 RULES
 Article 19(1)(a) of the Constitution of India.
 Section 66A of the Information Technology Act of 2000.

 ANALYSIS

The verdict in Shreya Singhal is immensely important in the Supreme Court’s history for
many reasons. In a rare instance, Supreme Court has adopted the extreme step of declaring a
censorship law passed by Parliament as altogether illegitimate. The Judgment has increased
the scope of the right available to us to express ourselves freely, and the limited space given
to the state in restraining this freedom in only the most exceptional of circumstances. Justice
Nariman has highlighted, the liberty of thought and expression is not merely an aspirational
ideal. It is also “a cardinal value that is of paramount significance under our constitutional
scheme.”

The Supreme Court agreed with the petitioners that none of the grounds contained in Section
19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of
the IT Act. “Any law seeking to impose a restriction on the freedom of speech can only pass
muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject
matters set out in Article 19(2).”

There were two tests that were put to the Section 66A- clear and present danger and the
probability of inciting hatred. Section 66A has failed those tests because the posts that people
were jailed for did not incite public hatred or disrupted law and order.

I believe that the term offensive in section 66A of the IT Act is very vague. What might be
offensive to someone may not be offensive to someone else. Also, it was not an offensive
comment or statement, it was a statement questioning the rationality of the Mumbai shut
down. Should death of a person irrespective of the importance or stature of the person lead to
a complete shutdown of the commercial capital of our country? This reasoning does not make
sense to me. I believe that the police acted in haste and did not have any grounds for the
arrest of the girl. The police acted in haste may be because political parties were involved.

Various judgments of this Court have referred to the importance of freedom of speech and
expression both from the point of view of the liberty of the individual and from the point of
view of our democratic form of government. For example, in the early case of Romesh
Thappar v. State of Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of
speech lay at the foundation of all democratic organizations

Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated, in
paragraph 45 that the importance of freedom of speech and expression though not absolute
was necessary as we need to tolerate unpopular views. This right requires the free flow of
opinions and ideas essential to sustain the collective life of the citizenry. While an informed
citizenry is a pre-condition for meaningful governance, the culture of open dialogue is
generally of great societal importance.

 CONCLUSION / SUGGESTION

More often than not the section 66A of Information Technology Act 2000 has been
misinterpreted and misused. In any democratic country, freedom of speech and expression
has an important role in the legal system. Our country should not be another example like
North Korea where the citizens of their country are scared to speak up and share their views
and opinions. I completely agree that defamation and sedition are 2 examples of exceptions to
freedom of speech and expression and it is totally logically. In the most recent case of
Kanhaiya Kumar the words spoken were such that it could lead to menace and public
disorder and these words were spoken out loud but in the given case the girl had no intention
to commit any of the given misconduct mentioned in section 66A rather had questioned the
reasoning for the Mumbai shut down which she did through a comment on facebook. If a
citizen of a democratic country does not even have the right to question what is happening in
the country and whether it make sense, then in what kind of democracy are we living in? We
have a national holiday on 2ndOctober in respect of Mahatma Gandhi since he is the father of
our nation and no doubt Bal Thackeray had a very powerful and important role in the Indian
politics but should that lead to the shutdown of the commercial capital?

For the growth and development of our country, freedom of speech and expression is
essential and not having this would take away the true meaning of democracy. It is a
fundamental right and directly impacts the opinion of 1.3 billion towards their country. I
believe that the shutdown of Mumbai on that day for that particular note may not be
reasonable but the comment made by Shreya Singhal was definitely reasonable and thus I
believe that the Supreme Court decision of giving the judgment in favor of Shreya Singhal
was a sensible one.

The decision establishes a binding or persuasive precedent within its jurisdiction.

 USA

Name of the case – Virginia v Black.

Date of Decision – April 7, 2003.

Name of the court- Supreme (court of final appeal).

Case Number – 538 U.S. 343.

Type of Law – Constitutional Law.

 FACTS

1. This case arises out of the criminal conviction of three defendants for violation of a
statute of Virginia State banning cross burning in the property of another or public
places with intent to intimidate or place others in fear of bodily harm.  Under the
statute’s prima facie evidence provision, the physical act of burning a cross was seen
as sufficient evidence for the jury to find an intent to intimidate others.
2. Upon their convictions, each defendant appealed to the Supreme Court of Virginia,
contending that that statute was facially unconstitutional.
3. The Court later declared the statute as unconstitutional because its prima facie
evidence provision posed the risk of prosecuting legitimate exercise of symbolic
expressions.
4. The State of Virginia petitioned the decision to Supreme Court of the United States.

 ISSUES

Q. Is the provision against cross-burning unconstitutional in as much as it views such acts as

prima facie evidence of having an intention to intimidate?

 RULES
 First Amendment of the US Constitution permits restrictions upon the content of
speech in a few limited areas, which are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.
 ANALYSIS
 (O’Connor, J.) Yes. A provision in a cross-burning statute of any state which declares that an
incident of this nature is an expression of the intent to threaten or otherwise cause fear in
another person or group is a violation of the constitution. The burning of a cross is always a
hate symbol, though it may sometimes also include the idea of threat. The threat may at times
be the predominant message. The consistent view of the Supreme Court on intimidatory
speech has been that the government has the authority to control some classes of expression if
the constitution so calls for it, and also that intimidation is a type of real threat if the word is
used in the sense that the constitution prohibits.

In this sense, Virginia may prohibit the burning of a cross done with the intent to threaten
because it is a very deadly threat. This is not a violation of the First Amendment’s guarantee
of free speech. Even more, Virginia has the freedom to choose to enact laws against this
particular form of intimidation instead of against all intimidatory speech, just because cross-
burning has a long history of being followed soon afterward by violence. But in the statute
under consideration, the provision is that any burning of a cross is obvious evidence that there
is an intent to threaten a group or individual.

This in fact removes the reason for the state to ban cross-burning as a sign of threat. With
this provision the jury may straightaway convict the defendant of the offense in any case
where the defendant chooses not to offer a defense, as is his right under law, instead of
having to weigh the evidence before them in the light of the law. Such a provision would
therefore create a very high possibility that a citizen’s ideas would be suppressed instead of
expressed, by the probability of conviction. It is necessary to separate the expression of anger
or hatred from the expression of an intent to cause harm or threat as the ground of lawful
conviction.

The First Amendment does not allow feelings to be interpreted as an intent to perform
unlawful actions. The decision is affirmed and the case remanded.  The Court made it clear
that in this statute, the provision at fault was the one which allowed all cross-burning to be
treated as prima facie evidence of the intent to threaten, regardless of all contextual evidence
which would be needed to independently arrive at such a conclusion. However, several legal
experts concur with Justice Thomas’s dissenting opinion that an act of cross-burning carries
no other meaning but that of intimidation.

 CONCLUSION / SUGGESTION
The United States Supreme Court held, however, that the prohibition of cross-burning with
the intent to intimidate under § 18.2-423 was not unconstitutional since it banned conduct
rather than expression. While cross-burning could constitute expression, such expressive
conduct was not proscribed unless it was done with the intent to intimidate, and targeting
cross-burning was reasonable because burning a cross was historically a particularly virulent
form of intimidation. However, a plurality of the Supreme Court asserted that the statutory
provision that any cross-burning was prima facie evidence of intent to intimidate, which was
interpreted under state law to mean that cross-burning by itself could support a conviction
without further evidence of intent, was an unconstitutional restraint on speech
 SOUTH AFRICA

Name of the case - Afri-forum v. Melema and others.

Date of Decision – September 12, 2011.

Name of the court- First Instance court.

Case Number – 20968/2010.

Type of Law – Administrative Law, Constitutional Law.

 FACTS

1. Julius Malema, President of the African National Congress Youth League, while
addressing public audiences, had sung/chanted the words “Awudubula (i) bhulu”;
“Dubulu amabhunu baya raypha”; “They are scared the cowards you should ‘shoot
the Boer’ the farmer! They rob these dogs” (para 49).
2. The first two lines translate to “shoot the Boer/farmer”; “shoot the Boers/farmers
they are rapists/robbers” (para 49). Afri-forum brought suit against Malema on the
grounds that these “objectionable utterances” undermined the human dignity of and
adversely affected the rights and freedoms of Afrikaners and Afrikaner farmers, as
well as demonstrated an intent to hurt an ethnic group and to incite and promote
hatred (para 49).
3. Malema argued he had a right to sing these words, which were taken from a liberation
song. He also argued that the words spoke to the symbolic destruction of white
oppression, not a specific desire to shoot Boers (para 53).

 ISSUES

1. What was the meaning of the words in the appropriate context and audience?

2. Did it make a difference if the audience was wider than the groups who heard the
song at the time of its singing?

3. Did it make a difference if different audiences ascribed different meanings to the

words?

4. Did the way in which the song was repeatedly sung by Malema after its translation in
the Press make any difference?
 5. Do the words constitute hate speech?

6. If the words do constitute hate speech does the fact that they have a place in our
heritage vest an overriding right in the singer to sing the song and make the gestures
referred to below?

 RULES
 Article 16(1) of the South African Constitution –m Freedom of Expression.
 Article 16(2) Limits to this right (a) propaganda for war; (b) incitement of imminent
violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm.
 Article 9 of the South African Constitution.
 Section 10 of the Equality Act – prohibits hate speech.
 Section 15 of the Equality Act.

 ANALYSIS

The court began its analysis by delving into the history of South Africa, detailing the events
from the immigration of the Boers to South Africa from Holland, France, and Germany, to
their institution of the policy of apartheid (paras 2-5). The court then introduced the rise of
the African National Congress (ANC) as an opposition party (paras 6-9), and the subsequent
creation of the South African Constitution (para 10). Article 16(1) of the Constitution
guarantees freedom of expression, but limits this right in subsection 2, which states the right
doesn’t extend to “(a) propaganda for war; (b) incitement of imminent violence; or (c)
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm” (para 20).

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality
Act) was enacted under Article 9 of the Constitution, which allows national legislation to be
put in place to combat discrimination and promote equality (para 22). Section 10 of the
Equality Act prohibits hate speech: “No person may publish, propagate, advocate or
communicate words based on one or more of the prohibited grounds, against a person, that
could reasonably construed to demonstrate a clear intention to…be hurtful…harmful or to
incite harm [or] promote or propagate hatred” (para 24). Section 15 sets the parameters that
the Equality Court must use when deciding on cases involving hate speech. Section 15 states,
“[h]ate speech and harassment [are] not subject to determination of fairness…the Court is
obliged to seek the solution which is just, not which is fair” (para 25).

In this case, Julius Malema was brought before the Equality Court by the Afri-Forum after he
repeatedly sang lyrics from the song “Dubul’ibhunu,” while making hand gestures that
mimicked the look of a firearm (paras 56, 49). The lyrics he sang translate to “Shoot! Shoot!
Shoot them with a gun/shoot the Boer/…These dogs rape up/shoot shoot shoot them with a
gun” (para 59). The court first acknowledged the “tension between the right of the speaker to
freedom of expression and the obligation of the speaker not to use words constituting hate
speech” (para 31); however, the court clarified that whenever there are issues involving
“majoritarian or minoritarian positions,” the test to be applied “must always be whether the
measure under scrutiny promotes or retards the achievement of human dignity, equality and
freedom” (para 34).

Malema sang the song on the following occasions: at his birthday, at the University of
Johannesburg, during a public address on Human Rights Day, and at a public speech in
Rustenburg (para 67). After each incident, the media response and reporting on the event was
great, with different papers translating the words and both showcasing and stoking a public
uproar around Malema’s singing after the translation of the one of the phrases was repeatedly
set as “shoot the Boer/farmer” (paras 77, 78, 83).

The Equality Court acknowledged that prior to the media publication of the translation, the
song had had no effect because either the song was innocuous or else there was ignorance
among the targeted group of the song’s meaning and/or the fact that the song had been sung
(para 85). The court then looked to the “actual audiences” so as to determine song’s impact.
At Malema’s birthday party, the courtt found the audience to be closed, with likeminded
people who likely knew the song’s meaning (para 86); at the University of Johannesburg, the
audience was a “multi-racial cross-section” (para 87); and at the public address at Human
Rights Day and at the rally in Rustenburg, the audience contained likeminded people who
had been involved in the struggle (paras 88, 89).

The Equality Court found that, regardless of the actual audience, “the public at large, even
those who did not attend the rallies, must be treated as being the audience at political rallies”
(para 91).
  CONCLUSION / SUGGESTION

This case steps onto the complicated jurisprudential tight-rope that is deciding what

constitutes hate speech versus what is protected under free speech. The Equality Court
ultimately decided that the words sung by ANC YL President Juluis Malema constitute hate
speech, and therefore prohibited him from singing them in future. The words in question
included the lines “Shoot the Boer/farmer,” which the Court concluded incited violence
against white Afrikaners in a way that was unacceptable and in violation of the Constitution.
This is a mixed outcome for freedom of expression, which is often the case when deciding
issues relating to hate speech, a necessarily more nebulous area of law.