Scanning the Tentacles of Human Rights in Freedom of expression: Niharika Rajpurohit

SCANNING THE TENTACLES OF HUMAN RIGHT FREEDOM OF EXPRESSION

Author: Niharika Rajpurohit

Damodaram Sanjivayya National Law University

ISSN: 2582-3655

ABSTRACT

Collecting and seeking any information is not a catch 22. At one click any person, irrespective of its age, gender, origin (unless in case of strict government policies) can seek any information. With some software such as VPN, a person can go beyond boundaries to seek what he aims. Similar is the case with the human brain. The human brain is so biologically designed into different kinds of memory, that it can transform any letter, number, images, and information, into meaning full data that governs every aspect of our existence. Therefore, it becomes all the more important that such far sight shall be considered and taken while bringing/understanding /amending as the case may be, any legal provision which talks of Freedom to seek and share information. 

Article 19, UDHR empowers everyone with the right to Freedom of Opinion and Expression which includes freedom to hold such opinion without interference. It allows a person to seek, receive and impact information and idea through any media and regardless of any frontiers.  The extent of this Freedom could result in fatalities was probably appeared as farfetched a thought, considering the spread of fake and faulty (partially true) news, unauthentic information around, bearing no frontiers. As yet, the most legal source can be Tort of Defamation or certain provisions of Penal Code. It is perhaps, an indirect way and hence it makes it difficult to prove the harm. The spread of fake information among seekers has resulted lately, in a number of violent activities. Recently, notably in the time of the Corona pandemic crisis, there have been an increase in communal violence and fake news (especially, in India). The Indian government also has, in the past, denied the bill of imposing such liability on the Press and media.

The No Fear of Liability in case of broadcasting of news and other information is not a territory confined issue, for the Freedom of Expression has similar thresholds throughout the world. Distribution of fake news/information has caused a lot of damage be it the DC pizza parlour case, Cobani yogurt case, or the recent mishap that happened in India amidst the crisis of Coronavirus. 

This paper is an attempt to go beyond the spread of fake news but any information which lacks the threat of damages, accountability on the part of the host. The term ‘information’  shall be wide enough to not just cover the harm to reputation but to dig deep and shall cover vilification, muckraking journalism, and baseless – prejudiced criticism. The researcher proves this hypothesis by analysing the working of literary tools and the human brain for, the human brain has no frontiers when seeking a piece of information.

WHEN YOU GIVE FALSE INFORMATION YOU TEND TO RESTRICT THE FREEDOM OF CHOICE TO OTHERS- RANDAL MARLIN

INTRODUCTION: The Universal Declaration of Human Rights (UDHR) is considered as prominent legislation which acts as a benchmark for developed and developing nation. Its principle binds states, states ‘ organizations, individuals, and non- state organizations. Since its inception, it has gained the political and moral prominence by all the states ratifying it. It acts as a touchstone for present and future implementation for all human-guiding principles. It sets forth a common achievement for all states and its subjects. Being a human much less, press the need to provide him rights safeguarding his freedom, dignity, equality, ensure him justice and peace. It brings the absolute development of individuals and thereby community. Human rights act as straw support for the oppressed and vulnerable group. It becomes the duty of the UDHR and the states ratifying it to ensure better enforceability of these basic principles. Every right has some restrictions as a regulatory aspect and so do Human rights. However, as concerned, Article 19 of UDHR has a limited scope of restrictions which has paved a way for commercial journalism and vast dissemination of false, faulty, fake, unauthentic, and misleading information for commercial gains which has brought interruption in co-existence and harmony.

PROBING FREEDOM OF EXPRESSION:  Article 19 of the Universal Declaration of Human Rights (UDHR) provides everyone the right to freedom of opinion and expression. This right includes freedom to hold opinions without any interference. It covers the right to seek, receive and impart information and ideas of all kinds, through any media (oral, writing, in print, art, or any other media), regardless of frontiers. The second part of the freedom indeed put some restrictions to safeguard one’s reputation and to protect national security or keep public order or maintaining the order of health or morals.[1] It is no doubt that this right has become a benchmark and a guiding force for the United Nations to ensure human rights for everyone and everywhere. Apparently article 19 not mere talks of harm caused to persons’ reputation but also put duty to maintain public tranquillity, which in the researcher’s opinion holds wide symbolism.[2]

The remedy for violation of Article 19 can only be addressed by the wrong of Defamation worldwide, so far. There is no other remedy available to address the harm caused by the impartment of any fake and false information apart from certain penal provisions. Considering the extent of restriction, the article imposes; in regard to the wide ambit of freedom given to everyone to seek such information, has completely failed. There is no reference made to the possibility of false, faulty, fake, unauthentic, and misleading information by anyone irrespective of their profession and background. 

With the advent of internet and development in technology, access to any information is no bar to learn and unlearn anything. Hence it becomes all the more important for the UDHR to consider such facets. The similar freedom is also provided under Article 18 UDHR where everyone has a right to freedom of thought, conscience and religion. It includes the right to adopt or profess any religion or a belief of one’s choice, and freedom, either individually or to a community and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. [3] UDHR does not specifically say anything in regard to responsibility/ accountability and the extent of liability in case of false, faulty, fake, unauthentic and misleading information be it is under Article 19 or 18 of UDHR.

RAMIFICATION OF FREEDOM OF EXPRESSION: Searching an information, seeking it and spreading further is no difficult a task to count. At one click any information from history to present is available on internet without putting any concerns for its source except in case of professionals and for the purpose of academics. On occupational and professional front there is indeed a remedy exists under the shed of wrong of Defamation which provides a remedy to the loss of reputation only. If stretched further the liability of unauthentic, fake, faulty and misleading information can be extended to penal laws. Perhaps, both are an indirect way to address the issue and bears potential to result in injustice as it becomes very difficult for the claimant to prove the harm cause to his reputation. On the other hand it fails to meet the partial purpose of Article 19 and 18 UDHR which is otherwise possible only by engaging resources to establish the liability of such violators. Often such violation results into unreported cases, incidents which are possibly a serious violation of Human Rights.

While analysing the freedoms provided by UDHR it is certain that the extent of fatalities these freedoms can result into was probably appeared farfetched to the framers, when looking at the spread false, faulty, fake, unauthentic and misleading information, in any form as mentioned in Article19 and 18 UDHR and therefore, it becomes relevant in coining a liability on such providers in order to safeguard the true purpose the Human rights.

Calling technology the only predator would not be correct for; the human brain works the similar way. Human brain has evolved so much that it has brought software to access even the restricted information (certainly illegal). Our brain is so biologically moulded into different kinds of memory each responsible for its own function. It can process any letter, images, symbols, information into meaningful data which governs every aspect of human existence. No to ignore the literary tool of Semantics, Pragmatics and symbolism[4] which is primarily the underline mechanism of the meaning of the words, phrases, sentences, thought process, psychology; of any language.  Hence, it would not be correct if the liability of providing an authentic, well cited information is not only put on occupational front but indeed, such responsibility should be on everyone who is providing any sort of information to the seekers; to respect their Human right as under article 18 and 19 UDHR.

In a Forbes article[5] it is well explained how easy it is to spread the “fake news” and the contribution technology has made to reduce the time consumption one has to do in its absence.  At only a touch or two any information or news can be accessed. More so, in the case of social media platform which was fundamentally for the purpose socialization has now, become a hot source for the spread of news. As per the article, spread of digital news is rampant through social media platforms by more than 2.4 billion users; out of which 64.5% (approx.) keep themselves abreast of status quo via social media. The article shows a decline in use of traditional communication of news among people.[6] Additionally, there has been a steep decline in article reading among people. A quick scroll or skimming through an article has been fashioned by the people. Seeing a video/ short clip is preferred rather going through the details of any information precisely, for paucity of time. As per data, on an average a user is found to spend just 15 seconds and prefers to watch for only 10 seconds. However, these social platforms are well equipped with securing the data made public to its user. Nonetheless, users itself has taken this front by ultimately acting as the managers thereby controlling what we see and seek. To gain popularity (indeed not a cake walk) information needs to be liked and shared multiple times before many people see it in their feed. Therefore social media and  social friends have control over what news pieces you see and what you do not thereby possibly manipulating the thought process. There are also many “fake news” that compete for attention with sensational headlines and prejudiced storylines that tend to get shared more often due to the lack of readers fact checking. That means that authentic content is hard to come by now. In fact, fake news is actually more likely to spread than the truth. Also, timely and sensational news does better, like Buzzfeed who has 17.2 million subscribers. Brands can consequentially pay more to appear in news feeds and get noticed. While syndication is nothing new, it is more prevalent in social media with so much information allowed to be given at once and 24/7. While having so much information at our fingertips is great, it is worth always checking sources and not taking the information as truth unless it is well sourced and cited[7]. Therefore, it becomes all the more important to take such considerations, findings while framing/ amending as the case may be, for any legal provision in nexus with the Freedom to seek and share information.

OTHER LEGISLATIONS IN LINE OF UDHR ARTICLE 18 AND 19: The freedom to voice opinion and seek information is also adopted by many states and they have moulded these rights as per nations ‘need. According to African Union Declaration of Principles, Everyone has the right to access information held by public bodies; private bodies which is necessary for the exercise or protection of any right. Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts. Under the declaration public bodies are required, even in the absence of a request, to actively publish important information of significant public interest. It restricts anyone to sanction for releasing any information in good faith, on wrong doing on wrongdoing, or information which would disclose a serious threat to health, safety or the environment. It also includes secrecy laws and provide for mandatory amendments as and when necessary to comply with freedom of information principles. Similar is the extent of freedom provided by International Covenant on Civil and Political Right (Article 19), European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10), American Convention on Human Rights (Article 13), ASEAN Human Rights Declaration (Declaration 23) and likewise. All these legislations provides for a Freedom of opinion as is provided under UDHR. Moreover, the restriction and the extent of liability also have same grounds. The extent of this freedom has failed to address the efficiency of no frontier human brain and the instances offalse, faulty, fake, unauthentic and misleading data while seeking information and therefore, the restrictions are categorised and recognised only under the wrong of Defamation and hate speech. The Rabat Plan of action[8]  talks, at length about the six-part threshold test to recognise the hate speech or any speech capable of disturbing public peace. So far the term information is apparently categorised under the well-known heads of hate speech, false speech (defamation), speech capable to disturb communal harmony/ public tranquillity but the question is whether the human brain as per Semantics, Pragmatics and symbolism can indeed recognise such categories? The answer, so far is in negative for human brain has no frontiers precisely, while considering these literary tools.

PROPOSAL TO ADDRESS THE ISSUE: To meet the true purpose behind Article 19 and 20 of UDHR and other similar principles, there is a need to first, stop categorising the term information under different subheads as in the case of the above mentioned freedoms along with the instances of child pornography, perjury, blackmail, provocative information, etc. Further categorising the term “information” is only a way to dodge the need to frame such laws which can meet the issue in toto. The situation should rather address any kind of information considering the human brain and other literary tools that plays a primary and vital role in framing of thoughts and interpretation. This possibly can result into a suspicious view in the process of learning and unlearning which could again result in violation of human rights principle but not putting a liability on providing faulty/ fake/ misleading information through any media is, on the other hand capable to demolish the entire structure of FREEDOM OF OPINION. Authentic information also facilitates the seeker in rightful access to the FREEDOM OF CHOICE. The other way around would rather result in severe violation of many fundamental and human rights of people. Non-categorising the “information” and putting a liability would attract any faulty/ fake/ misleading/ untrue news whether it is communicated in academic lectures, election campaigns, social media, news portals, advertisement, unethical marketing techniques and many such evils for our understanding and the right to choice. It is time that the communication shall become responsible to avoid any interruption in co-existence, learning, harmony, mental health in long run and other human issues.

The change can be in line of French Declaration (protected by1789 declaration), if not a blanket restriction on the term information itself. The declaration of Human and Civic Rights in France considered freedom of expression and speech an important right but the restrictions imposed is wide enough than what is under many international standards. There is a balance between French declaration on freedom of expression and other rights, including restrictions on defamation and hate speech. Although the restrictions, unlike other international standard is wide enough to cover incitement, speech justifying and denying cataclysm and other crimes against humanity. These restrictions open a Pandora for other liability viz., publishing or communicating in any form; fake/faulty/unauthentic/ misleading information for seeker. French declaration of Freedom of Expression also includes (post 1980s) Freedom To Broadcast For Television And Radio but it is backed by adherence to other related laws, protecting and promoting human dignity, freedom, protecting the property of other, pluralism of views and opinions, children and adolescents, public order, and national defence.[9] Furthermore, broadcasters that rely on radio waves must be authorized by the Superior Council on Audiovisual {Conseil supérieur de l’audiovisuel (CSA)} to use specific bandwidths.  The CSA attributes bandwidths on the basis of technical criteria and also with the goal of promoting the public interest and pluralism.  Additionally, the CSA monitors broadcasts to ensure respect for French laws. The CSA does not censure broadcasts beforehand, but may sanction broadcasters engaging in illegal speech after the fact.  First offenses lead to an order to cease and desist, but subsequent offenses may lead to fines and even the suspension or withdrawal of broadcasting authorizations.  Recent legislation also allows the CSA to withdraw the broadcasting authorization of an operator controlled by a foreign state if it broadcasts content that harms a fundamental national interest of France.  This legislation specifically mentions the dissemination of false information to interfere with the proper functioning of institutions as an example of a broadcast harmful to a fundamental national interest.[10] Broadcast through radio is governed by Superior Council on Audio visual (SCA) which has a duty to abide by other French laws. Failing to meet the liability, the violator can be punished with fines and even suspension or withdrawal of broadcasting authorizations/ operator (in foreign state) provided the broadcast contents harms a fundamental national interest of France.[11] Therefore the law targets the dissemination of false information which is the fundamental focus of this paper.

STATUS QUO IN INDIA: Recently, India has faced a massive violence, in different forms more sensitively in the time of Coronavirus pandemic due to the spread of fake news. It becomes more important for a country like India, to ensure the authenticity of information dissemination; to ensure diverse harmony and public tranquillity among its citizens. According to NCRB report 2016-2018[12]  which has taken a new head of crimes related to fake news from the year 2017 has shown an increase of 15,111 cybercrime cases.  The report shows a detailed comprehensible record of cybercrimes including crimes using computer as medium[13], tampering sources[14], fake profile[15], fake news on social media[16] (added in year 2017; shows an increase of 97 cases from 0), etc. Unfortunately, India governs the freedom of speech and expression on the same threshold as it is internationally and not like France which also establishes a liability on broadcast and media for publishing unauthentic/ fake/ faulty news among the seekers. The restrictions to Freedom of Expression in mentioned under Article 19 of Indian Constitution, 1950 and Information and Technology Act, 2000 but limited to only indirect remedies. The seekers without verifying the source of information on social platforms such as WhatsApp, Facebook, news portals share the news which has notably resulted in violence such as mob lynching, communal hatred, suicides, among the victims due to viral information. There lies also a possibility of higher number of fake news crimes then what is reported.

CONCLUSION:

But this freedom has limits: racism, anti-Semitism, racial hatred, and justification of terrorism are not opinions. They are offences.[17]

It is the call of the time that the legislators at world level come up with a law to impose the fear of liability among information provider. The reason being simple yet bears much significance for the human brain has no frontiers and hence it also puts a responsibility on Human Rights commission to broaden the ambit of restrictions imposed against Article 19 Freedom of Speech and Expression and under Article 18 thereby giving a broad ambit to information providers. If it appears pragmatically difficult to declassify the term INFORMATION then the change shall be brought in line of French declaration of Freedom of Expression and the restrictions thereunder put on media and broadcasting agencies being the most accessed source of information. It is time to bring a liability on information providers taking the foundation of Human rights so it becomes as fundamental as other principle of Human rights thereby ensuring a responsible behaviour on part of each being. The restriction shall be so imposed that is it capable of maintaining a balance between Freedom of Expression and far possibilities of harm taking a foundation of Human rights and brain functioning in regard to the literary tools. The approach shall be fact oriented/ dependent. Social media is moulded in a new platform for exchange of opinions and no longer remains a mere means to socialise. These platforms have brought a new definition to criminal side of a human being.


[1]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Art. 19.

[2] C. K. OGDEN & I. A. RICHARDS, The Meaning Of Meaning A Study Of The Influence Of Language Upon Thought And 0f The Science Of Symbolism (A Harvest Book Harcourt, 1923).

[3] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Art. 18.

[4] C. K. OGDEN & I. A. RICHARDS, The Meaning Of Meaning A Study Of The Influence Of Language Upon Thought And 0f The Science Of Symbolism (A Harvest Book Harcourt, 1923).

[5] Nicole Martin, How Social Media Has Changed How We Consume News, Forbes, Nov. 30, 2018

[6] Nicole Martin, How Social Media Has Changed How We Consume News, Forbes, Nov. 30, 2018

[7] Nicole Martin, How Social Media Has Changed How We Consume News, Forbes, Nov. 30, 2018

[8]  United Nations, High Commissioner for Human Rights Human Rights, Twenty-Second Session Agenda, Annual Reports of the Office of the High Commissioner and the Secretary-General (11 Jan 2013).

[9] https://www.loc.gov/law/help/freedom-expression/france.php

[10] https://www.loc.gov/law/help/freedom-expression/france.php

[11] https://www.loc.gov/law/help/freedom-expression/france.php

[12]National Crime Records Bureau (Ministry of Home Affairs) Government of India, Crime in India 2018 Statistics Volume II, 751-842 (2018)

[13] National Crime Records Bureau (Ministry of Home Affairs) Government of India, Crime in India 2018 Statistics Volume II, 751-842, TABLE 9A.2 Cyber Crimes – IT Act Cases (2018)

[14] National Crime Records Bureau (Ministry of Home Affairs) Government of India, Crime in India 2018 Statistics Volume II, 751-842, TABLE 9A.2 Cyber Crimes – IT Act Cases (2018)

[15] National Crime Records Bureau (Ministry of Home Affairs) Government of India, Crime in India 2018 Statistics Volume II, 751-842, TABLE 9A.2 Cyber Crimes – IT Act Cases (2018)

[16] National Crime Records Bureau (Ministry of Home Affairs) Government of India, Crime in India 2018 Statistics Volume II, 751-842, TABLE 9A.2 Cyber Crimes – IT Act Cases (2018)

[17]  https://www.gouvernement.fr/en/everything-you-need-to-know-about-freedom-of-expression-in-france

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