1.

Freedom of Speech and Expression in Cyberspace

The Internet and Social Media has become a vital communications tool through which individuals
can exercise their right of freedom of expression and exchange information and ideas. In the past
year or so, a growing movement of people around the world has been witnessed who are advocating
for change, justice, equality, accountability of the powerful and respect for human rights. In such
movements, the Internet and Social Media has often played a key role by enabling people to connect
and exchange information instantly and by creating a sense of solidarity. The UN Human Rights
Committee has also tried to give practical application to freedom of opinion and expression in the
radically altered media landscape, the centre stage of which is occupied by the internet and mobile
communication. Describing new media as a global network to exchange ideas and opinions that
does not necessarily rely on the traditional mass media, the Committee stated that the States should
take all necessary steps to foster the independence of these new media and also ensure access to
them. Moreover, Article 19 of the UDHR and Article 19(2) of the ICCPR also provides for freedom of
speech and expression even in case of internet and social media. Thus, it is seen that freedom of
speech and expression is recognized as a fundamental right in whatever medium it is exercised
under the Constitution of India and other international documents. And in the light of the growing use
of internet and social media as a medium of exercising this right, access to this medium has also
been recognized as a fundamental human right.

Restrictions on Freedom of Speech And Expression

The freedom of speech and expression does not confer on the citizens the right to speak or publish
without responsibility. It is not an unbraided license giving immunity for every possible use of
language and prevents punishment for those who abuse this freedom. Article 19(3) of the ICCPR
imposes restrictions on the following grounds:
(a) For respect of the rights of reputations of others
(b) For protection of national security, or public order, or public health or morals.
As per Article 19(2) of the Constitution of India, the legislature may enact laws to impose restrictions
on the right to speech and expression on the following grounds:
(a) Sovereignty and integrity of India
(b) Security of the State
(c) Friendly relations with foreign States
(d) Public order
(e) Decency or morality
(f) Contempt of court
(g) Defamation
(h) Incitement to an offence

Cyber Laws of India And Social Media

Although there is no specific legislation in India which deals with social media, there are several
provisions in the existing so-called cyber laws which can be used to seek redress in case of violation
of any rights in the cyber space, internet and social media. The legislations and the relevant
provisions are specifically enumerated as under:
2.Right to Access Cyberspace – Access to Internet
Constitution of India is the sovereign law and the rights given under Part III of the Indian
Constitution are the Fundamental Rights which includes Right to Freedom; Right against
Exploitation; Right to freedom of Religion; Right to Minorities; Right to Equality and Right to
Constitutional Remedies. These rights play an indispensable role because they are most
important for the attainment of the full intellectual, moral, and spiritual status of an individual.

Internet is a universal computer network distributing a variety of information using an

interconnected network of TCP/IP (Transmission Control Protocol/ Internet Protocol). In today's
Hi-Tech world, everything is going electronic and to access them with ease Internet plays a
crucial role, even the automotive industry is manufacturing vehicles that run over electricity and
can be accessible directly by mobile phones with the help of internet. Internet is leading us to a
future of intelligence and autonomous vehicles.

The Internet is considered as an important vehicle for the promotion of the Convention among
women[4]. Taking in account the report submitted by Turkmenistan in 2012, the CERD Committee
noticed that Internet based sources (e.g. blogs, websites) play an important role in the promotion of
human rights concerning minorities and thus the state should refrain from restricting access to these
sources and any other information over Internet in violation of the freedom of expression as provided
for by international law[5].

Right To Internet A Basic Human Right:

In 2016, UNHRC General Assembly articulated access to the Internet an essential human right.
Web could be a key for protecting the other fundamental human rights, as it not only provides
a variety of information but also helps to live life with ease. We are living in a world where
Artificial Intelligence (AI) will soon replace manpower and everything will be done on a single
vocal command, but to take the benefit of these resources Internet portray a significant role.

In the current situation, gigantic political discussions happen over the Internet, in this manner
somehow or another, our political rights must be practiced by means of Internet, clarifying that
Internet access is required for individuals to have equivalent chances to guarantee the
utilization of their political freedom. In India, Kerala was the first state to declare the Right to
Internet a basic Human Right[6], Internet is the pathway to the future and Right to Access
Internet is necessary for living a decent life and therefore is a Moral Human Right.

Relationship between Internet Access and Human Rights:

Mobile Internet Service and Broadband Internet provide a life support system to the citizen of
India from all walks of life. Internet is not only a source of information, communication and
access to social media, it is much more than that. Internet does not only portray a significant
role for businesses and occupations rather it is paramount to the home-based workers and
small and individual owned enterprises which sell their product and services online giving them
a means for their survival.

Internet provides access to transportation for millions of people around the country by
providing them a virtual platform. Internet is a mode of access to the education for students
who take online exams and do online diploma and other courses and thus it is fundamental to
facilitate the advancement and zeal of the Right to Education. Internet is getting basic to your
day by day life just as an underwriter of financial development and impetus for social turn of
events.

Internet Access A Part Of Fundamental Right:

In Anuradha Bhasin vs. Union of India and Ors.[7] Apex Court in its recent judgement
observed that freedom to practice any profession or carry on any trade, business or occupation
over the medium of internet enjoys Constitutional protection under Article 19(1)(a) and Article
19(1)(g), but the restriction of such fundamental rights should be according to Article 19(2) and
(6) of the Constitution, inclusive of the test of proportionality. Internet is an imperative tool for
trade and commerce and plays an important role in carrying e-commerce business as it
provides a virtual platform to a businessman which is more affordable.

The Apex Court in Maneka Gandhi v. Union of India[8] observes that "procedure which deals
with the modalities of regulating, restricting or even rejecting a fundamental right falling within
Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the
substantive right itself".

Internet aids the citizen to express their opinions on a global platform and therefore is covered
under the ambit of Article 19(1)(a) of the Constitution. Article 21 of the Constitution has a more
extensive degree and is an unfilled jar into which individuals must pour its substance in the
light of its experience. There is no contrast between a right given under part III of the
Constitution and those which have been proclaimed based on the decisions given by the Apex
Court.

3.Right to Privacy & Right to Data ProtectionFreedom of Speech

And Expression
In Today's Techno-savvy world, digitalization has replaced the practice of storing and submitting
documents in physical form, rather all are now stored in a computer device by the use of
electronic form. This practice has many advantages as it is easy to access, retrieved quickly, and
hence is very speedier to communicate. Therefore the peoples are feeling very reluctant to use
this electronic form of data storing and exchanging, as it helps them to carry out their business
very smoothly and without any hassle.
E-commerce as well as the entire social media platform is the primary and advanced
technology-based entities, where we use and communicate and share our personal data for
buying and selling products or hiring any services or for socializing with our personal
connections, using the internet. Hence as such, all the data that we share are vulnerable
towards misuse and invading the 'privacy' of the individuals.

The Right to Privacy is a part of the human right, as it has been specifically declared as such, in
the United Nations Declaration of Human Rights and many national and other international
treaties. Most of the developed nations even added the right to privacy as a fundamental right
of their citizens. Privacy is best understood as a cluster covering interest in:

a. Control over information about oneself.

b. Control of access of information both physical and mental.
c. control over one's ability to make an important decision about family and lifestyle in
order to be self-expressive and do develop varied relationships.

The term Privacy literally has many definition or analysis or meaning. Although the more
precise concept was propounded by Samuel Warren & Louis Brandeis (1890) in their
writing Right to privacy. They defined it as 'a right to be let alone' and which is protected by
law. The above concept was later on laid as the foundation to control information about
oneself. The Calicut Committee (1990) recognized individual right to be protected from any
intrusion considering the personal, family life either physical means or from any publication or
sharing of information[1].

William Prosser in 1960, wrote four different 'rather definite' privacy rights as follows:

a. Right from interference by others, in one person's private affairs.

b. Prohibition to disclose embarrassing facts about an individual.
c. Sharing false information about someone in public.
d. Taking an advantage by appropriate information about another, and by illegal means.

There are three international treaties that are widely recognized as the basis for the protection
of Privacy. Those are Article -12 of the Universal Declaration of Human Rights, 1948, Article -17
of the International Covenant on Civil and Political Rights (ICCPR). Article-8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, (ECHR). The
Organization for Economic Development & Cooperation (OECD),

Guidelines for the (Protection of privacy and Trans Border of Data) also has equal relevance as
it protects the right to privacy among its members. The Preamble of the Australian Privacy
Charter also provides tha:
People have the Right to Privacy of their own body, Private Space, Privacy of Communication,
Information Privacy Rights Concerning Information about a Person and Freedom Surveillance:

Invasion Of Privacy In Cyber World:

Due to the excessive dependence on the computer, as a tool for information sharing and
retention of data and the use of the internet as a medium for data transfer, various invaders
who indulge in the act of stealing the information, as shared through online by the user, either
by use of malicious spyware, or by various computer bugs, or the data as collected from the
website which is stored in the cookies folder of the computer.

Also the information that the user shares in the social networking profile i.e. Linkedin, Twitter,
Facebook, Instagram, etc. are very prone to be accessed by any intruder and are easily
manipulated and misused causing privacy intrusion issues to the concerned social media user.
Threats also like email attachment containing malware that discloses personal information of
the recipient of the mail to the sender or any intruder. Children, who use the internet, are also
easy prey of the intruders because all the information fed by a child can be easily tracked by
cybercriminals.

In the U.S, in order to protect the interest of the children and their privacy who use the internet,
the Federal Trade Commission has enacted The children Internet Protection Act 2000.

Lack Of Special Law On Privacy In India

Since a long period of time, India do not have a special law dealing with cyber crimes and cyber
privacy issues, jurisdiction issues, and intellectual property rights issues, and a number of other
issues. Perhaps it was the only n the year 2000; The India Legislature enacted the Information
Technology Act, 2000 to deal with cyber crimes and cybercriminals. IT Act lays down penalty
and punishment provisions for violation of certain laws which amounts as an offense.

The act was later on amended again in the year 2008 and knows as the Information Technology
Amendment Act 2008. The Act contains a number of provisions which protects the privacy of a
person from online intrusion and exploitation. It provides both fine and punishment by
imprisonment in case of hacking (Section 43, 66), three years imprisonment for violation of
privacy(section 66E), identity theft(Section-66 C) and cheating by personation (Section 66 D),
offensive email (Section 66A).

Section 72A of the IT Act penalizes the unauthorized disclosure of personal information by any
person who has obtained such information under a lawful contract and without consent of the
person from whom such information belonged or taken. Apart from this the IT Act also
provides provision for data safety.

Section 43A of the Information Technology Amendment Act 2008, lays down that all corporate
bodies and intermediaries who possess, handle or collect any sensitive personal data shall
maintain reasonable security practices and in case of failure they shall be liable to the person
who is aggrieved by such misuse of data.

1. The government has notified the Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011. The Rules only
deals with protection of Sensitive personal data or information of a person, which
includes such personal information which consists of information relating to:

a. Passwords;
b. Financial information such as bank account or credit card or debit card or other
payment instrument details;
c. Physical, physiological and mental health condition;
d. Sexual orientation;
e. Medical records and history;
f. Biometric information.

The rules provide reasonable security practices and procedures, which the body
corporate or any person who on behalf of the body corporate collects, receive,
possess, store, deals or handle information is required to follow while dealing
with Personal sensitive data or information. In case of any breach, the body
corporate or any other person acting on behalf of the body corporate, the body
corporate may be held liable to pay damages to the person so affected.
 
2. Parliamentary Report on Cyber Security & Right to Privacy:
The Parliamentary Standing Committee on Information Technology in its 52nd Report
on Cyber Security and Right to Privacy said that a significant increase in cyberspace
activities and access to internet use in India coupled with lack of user end discipline,
inadequate protection of computer systems, and the possibility of anonymous use of
ICT allowing users to impersonate and cover their trends of crime has emboldened
more number of users experimenting with ICT abuse for criminal activities. The
Committee is of the opinion that this aspect has a significant impact in blunting the
deterrence effect created by the legal framework in the form of the Information
Technology Act, 2000, and allied laws.