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EMERGING HORIZONS OF FREE SPEECH

-Ankita Sharma & Hirak Mukhopadhyay

IInd Year B.A. LLB (Hons), National Law Institute University, Bhopal

E-Mail & Phone: ankita.sharma2000@gmail.com (09406543062)

mukherjeehirak@hotmail.com (09806143045)

The ideas of free speech have been instrumental in defining

human expression, cultural creativity and social progress

since ancient times. The trial of Socrates in 399 B.C. was the

first recorded instance where a person attempted to guard his

right of freedom of speech. During the trial, Socrates

reportedly said that “If you offered to let me off this time on condition I am

not any longer to speak my mind … I should say to you, ‘Men of Athens, I shall obey

the Gods rather than you.’”, thereby keeping his volition of free

speech on a higher pedestal than even his own life.

History is a witness to the fact that free speech promotes the

growth of civilisation by facilitating a free exchange of

ideas. It is considered one of the foundation stones of

liberal democracies. The Bill of Rights, 1689, signed by

William III and Queen Mary II of England guaranteed this vital

freedom whilst in Parliament. Exactly a century later, after

the French Revolution in 1789, the Declaration of the Rights

of Man and of the Citizen was adopted, wherein this right was

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declared as absolute by stating that “The free communication of ideas

and opinions is one of the most precious of the rights of man...”

This right has been enshrined, in some or the other form, in

almost every modern constitution including India. The

importance of free speech in a democracy was also well known

to our founding fathers like Mr. B.R. Ambedkar whose initial

draft of the constitution provided that “No law shall be made

abridging the freedom of speech, of the press, of Associations and of Assemblies

except for considerations of public order and morality”1. In pursuance of

such an ideal, this freedom was enshrined under Article

19(1(a))2 of the constitution. In the un-amended Constitution

of India, the right of free speech was subjected to less

rigorous restrictions.3 But within two years of adoption of the

constitution, the first amendment enlarged the scope of these

restrictions by amending article 19(2)4. In contrast, the U.S.

constitution still offers unqualified protection to freedom of

1 Dr. Kashyap, Subhash, “The Framing of India’s Constitution”, Second Edition, Universal Law Publishing Co. Pvt. Ltd., New Delhi, p.2112 Article 19(1) All citizens shall have the right—(a) to freedom of speech and expression;...3 The Unamended article 19(2) read as “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, relating to Libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

4 Article 19(2). Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, inso far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereigntyand integrity of India,] the security of the State, friendly relations withforeign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

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speech and expression under the First Amendment which reads as

“Congress shall make no law… abridging the freedom of speech, or of the press”.5

However, despite the restrictions imposed upon free speech by

article 19(2), the Supreme Court, influenced by the U.S.

constitution, has time and again come to its rescue. In the

landmark case S. Rangarajan Etc vs P. Jagjivan Ram 6., the Supreme Court

held that

“Freedom of expression which is legitimate and constitutionally protected

cannot be held to ransom by an intolerant group of people. The fundamental

freedom under Article 19(1)(a) can be reasonably restricted for the purposes

mentioned in Article 19(2) and the restriction must be justified on the anvil of

necessity and not the quicksand of convenience of expediency. Open criticism of

Government policies and operations is not a ground for restricting expression.”

Sadly, the government’s stand on free speech is at loggerheads

with the Supreme Court’s position. Tolerance of dissent is the

very essence of democracy7 and its intolerance would result in

the inclusion of India in the embarrassing league of

totalitarian regimes like China and North Korea. With its

rapidly rising economic strength, India has an obligation to

safeguard this natural right of its citizens. Unfortunately,

never before has free speech faced such severe assault than

what it is facing now. However, it must also be noted that this

assault is not India-centric but is global in nature,

spearheaded by the U.S., a country which ironically tries to5 Union of India v. Naveen Jindal : 2004(2) SCC 510

6 (1989) 2 SCC 574, ¶ 2317 4 Hastings L. J. 118 (1953)

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position itself as the greatest advocate of this indispensible

right.

However, that does not mean that speech must be absolutely

unrestrained. Nowhere in the world has this right been made

absolute and unqualified, nor it should be. This right is not

found in a vacuum but has to be read in conjuction with other’s

rights and duties. Reasonable limits should be imposed on

speech as far as national security and certain legal issues are

concerned. The presumption that there will always be counter-

voices in a democracy to resolve issues is flawed. Sometimes,

silence is equally vital for the peaceful working of a

democracy.

This article attempts to bring to the forefront various recent

instances where there have been confrontations due to

restrictions attempted on contemporary mediums like films,

media and the internet, by both national and international

governments thereby encroaching on the right to freedom of

speech and expression. At the same time, the article has also

tried to highlight how certain issues have been overblown in

the name of defending the right to free speech and how a

reasonable balance can be sought.

FILMS

Films and documentaries have been a major source of

articulating one’s own ideas and also been an instrument of

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human expression. Unfortunately they have been made subject to

constant scrutiny of the Censor Board (formed under the Indian

Cinematograph Act of 1952). The Board has powers to make

producers cut or edit “objectionable” scenes in their films;

the scope of objectionable content is at the mercy of the

Board. If this was not enough, political bodies, with no

inkling of the significance of such a medium in preserving the

freedom of speech, also interfere in order to pacify certain

pressure groups.

Recently the movie Dam999, based on Mullaperiyar Dam

controversy, was banned by the Tamil Nadu government, on the

apprehension of law and order problems in the state.8

Similarly, a few months ago, the screening of the movie

Aarakshan, which condemned the reservation policy, was

suspended by the governments of Andhra Pradesh, Uttar Pradesh

and Punjab on the ground of protecting the sentiments of

certain social groups, even after clearance from the Censor

Board9. Other censored movies including Rockstar (wherein the

Tibetan flag had to be blurred in the song “Sadda Haq”), Water,

Da Vinci Code etc. are only the tip of the ice berg when it comes

to censoring of movies in India.

8 “Tamil Nadu government bans Dam 999 film”,(The Hindu, November 24, 2011), (Last Accessed on February 20, 2012), Available at: http://www.thehindu.com/news/states/tamil-nadu/article2655859.ece

9 “India states ban film on low-caste quotas in education”,(BBC News-South Asia, August 12,2011), (Last Accessed on February 21, 2012), Available at: http://www.bbc.co.uk/news/world-south-asia-14501491

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Nonetheless, it goes without saying that a country as

culturally diverse as ours certainly needs a body like Censor

Board. We definitely cannot have movies mocking other cultures

beyond a reasonable extent. Furthermore, the argument of

completely doing away with the Censor Board under the garb of

freedom of speech holds no ground as majority of us Indians

still prefer watching movies with our families and cannot

afford to watch vulgarity and violence in such a setting.

Without doubt, movies are not merely a source of entertainment

but they also serve social purposes. But they may also have an

adverse impact, especially on youngsters who are easily

gullible and may get influenced by the negative characters of

a movie. Studies have proved that there is a definite link

between crime rates and violent movies.10

Therefore, a body like the Censor Board is inevitable in

India, but there has to be limitations on the powers of the

board to the extent of keeping the movies in consonance with

the sensibilities of Indians. Its functions should be

restricted to categorizing movies on the basis of its content.

The Cinematograph Act, the parent act of the Censor Board, is

an antiquated piece of legislation and needs to be amended on

the lines of censorship regulations of the US, which provide

for various age groups for ratings like U (suitable for entire

population), PG (Parental Guidance advised), 12 years and

above, 15 years and above, and 18 years and above. The Censor

10 Dahl, Gordon & DellaVigna, Stefano, “Does Movie Violence Increase Violent Crime?”, (The National Bureau of Economic Research, January 2008), (Last Accessed onFebruary 8, 2012), Available at: http: //www.nber.org/papers/w13718

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Board should also abstain from banning subjects which are

considered politically subversive. Also, in no way should

politicians have the right to interfere. The above examples

are not exhaustive and demonstrate the fact of how the

government is eager to ban movies having even the slightest

tendency to create controversy. Such indiscriminate banning of

movies on such flimsy pretexts is contrary to the principles

of a liberal democracy.

MEDIAThe recent comments of Justice Markandey Katju, Chairman,

Press Council of India11, regarding the role of media has

trigerred a huge debate, with the media up in arms against his

comments. Mr. Katju had argued that television and radio

should be brought under the supervision of the Press Council

of India or a similar regulatory body.12 Back in 2006, the

government had tried to pass the Draft Broadcasting Services

Regulation Bill, which provided for regulation of content on

television and radio. According to recent rankings, India

ranks at a lowly 122nd position amongst 178 countries when it

11 Katju, Markandey, “The Role the Media should be playing in India”, (The Hindu, November 5, 2011), (Last Accessed on February 11, 2012), Available at: http: //www.thehindu.com/news/article2600319.ece12 Mahapatra, Dhanajay, “Does one have a right to bare sentiments on internet?”, (The Times of India, December, 2011), (Last Accessed on February 10, 2012), Available at: http://timesofindia.indiatimes.com/india/Does-one-have-a-right-to-bare-sentiments-on-internet/articleshow/11075590.cms

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comes to press freedom, lagging behind countries like

Guatemala and Burkina Faso13.

The media is considered to be the fourth pillar of a democracy

and plays an important role of enhancing the accountability of

the government. It helps in forming public opinion on issues

of day-to-day relevance and in moulding public viewpoint.

Unquestionably the active and enthusiastic participation of

citizens is indispensable for the working of a healthy

democracy. People have a right to know more about socio-

political affairs so that they can form their own opinions

about the administration governing them. This is facilitated

by the media which provides for ample opportunities for free

exchange of information.

In India, the media has always tried to ensure its

independence by pressuring the govenment to reverse its

policies on media restricitions. This emerging clout of the

media has both positive and negative consequences. Post

Independence, almost all major scams like the Bofors Scam, the

Jharkand Mukti Morcha Case etc have been unearthed by the

media. It has been crucial in mobilising public support in

cases of governmental apathy towards sensitive issues like

dispensation of justice, corruption cases etc. Thanks to its

effectiveness, more people are now better aware of their

constitutional rights and duties. Its role in cases like

Jessica Lal murder case, Priyadarshini Mattoo case and most

13 “Europe falls from its Pedestal, no respite in the Dictatorships”, (Reporters without Borders-Press Freedom Index 2010), (Last Accessed on February 10, 2012), Available at: http: //en.rsf.org/press-freedom-index-2010,1034.html

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recently the Ruchika Girhotra case also highlights the crusade

of the media in getting justice for the victim’s family when

justice is denied due to the interference of rich and

powerful.

The Media has every right to present any issue of public

relevance in a manner as close to reality as possible. The

foremost duty of the media is to report facts. However,

reality should not be distorted with personal views and biases

for this may also affect the decision making powers of the

viewers. This is even truer for those high profile court

judgements which the media usually reports. These judgements

are discussed in the news channel studios immediately after

their pronouncements by people having no knowledge of law who

are not fully aware of all the facts of the case. This job of

scrutiny should be done only after availability of the copy of

the judgement, that too only by people having knowledge of

law.

Furthermore, in a desperate attempt to raise their TRPs, these

media houses pass their own verdicts in certain cases purely

on the basis of hearsay facts, even prior to the passing of

the judgement by the court. This is akin to the functioning of

Kangaroo courts, where judgements are passed without paying

due regard to the testimony of witnesses and cross

examinations. Such trial by media may also adversely influence

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the judge’s conscience.14 In Zahira Habibullah Sheikh v. State of Gujarat15

, the Supreme Court held that “Fair trial obviously would mean a trial

before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair

trial means a trial in which bias or prejudice for or against the accused, the

witnesses, or the cause which is being tried is eliminated.” When the Judge is

unable to remain impartial due to such reportings, it would be

impossible to guarantee that the proper ends of justice are

met.

Thus, the need of the hour for the media is to properly

exercise its right to free speech guaranteed to it under the

Constitution with a sense of responsibility in an ethical

manner so as to make any kind of governmental unnecessary.

ONLINE FREEDOMIn the past few years, questions have been raised regarding

the boundaries of free speech in one of the most unconstrained

mediums available for dissent i.e. the Internet. The Internet

has enabled many of us to express ourselves to a greater

degree and to receive and exchange information in ways

previously thought as unimaginable. In some ways, it is more

democratic in nature than traditional media like Newspapers

and News Channels as it facilitates free dialogue between

conflicting views, that too anonymously. These days,

14 See Law Commission Of India, “200th Report on Trial by Media-Free Speech And Fair Trial Under Criminal Procedure Code, 1973”, (August 2006), p. 60, (Last Accessed on March3, 2012), Available at: http://lawcommissionofindia.nic.in/reports/rep200.pdf

15 (2004) 4 SCC 158

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governments across the world are engaged in developing new

regulations for limiting the scope of this freedom. But

whether the concerns that the government has vis-à-vis online

freedom are justified or not, depends on a lot of factors and

should not be readily criticized as being too suppressive.

This section deals with such recent cyberspace regulations at

both national and international levels.

A. ONLINE REGULATION IN INDIA

Not long ago, a raging debate began in the cyber world over

Kapil Sibal’s sudden proposal of “pre-screening” internet

content for apparently controlling the problem of indecent and

abusive material on internet. The timing of his suggestion is

certainly questionable as it indicates that the government has

become insecure after the recent anti corruption campaign led

by Anna Hazare and the Arab Spring demonstrations. In both the

cases, the majority support of citizens was mobilized via

social networking sites. Additionally, in the government’s

application to Google for removal of 358 items from its site,

over 255 items were classified as government criticism and not

defamatory or indecent content as claimed by the government.16

Then, in December, 2011, a Delhi based journalist, Vinay Rai

filed a suit in Delhi against 21 companies including Google

and Facebook for not censoring offensive substance that hurt

16 Jebaraj, Priscilla, “India wanted 358 items removed”, (The Hindu, December 8, 2011), (Last Accessed on February 11, 2012), Available at: http://www.thehindu.com/news/national/article2696027.ece

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social and religious sentiments, relying on the section 3(4)

of the Information Technology (Amendment) Act, 2011 which

provides for penalty “if a social media is notified of any contravening content

and it fails to remove or disable access to the said content in 36 hours”17.

Subsequently the court ordered all the companies to ensure the

immediate removal of objectionable content within 15 days and

to establish a screening mechanism to filter such content in

future.

But what the learned judges and the government have failed to

comprehend is that the internet is a self regulating

mechanism. For instance, in the video sharing website Youtube,

obscene videos are removed within a short span by the users

themselves. Instead of third party regulating mechanisms, self

regulating mechanisms which already exist in almost all major

websites, should be made more stringent so as to empower users

to regulate content themselves.18

Further, a word has different meanings in different contexts.

For example, the word ‘sex’ (as contented by Google during the

trial) appears in almost every application form. Blocking this

word would even lead to the blocking of the official website

of the Ministry of External Affairs which contains passport

application forms. Such screening would also result in the

17 Venkiteswaran, L.D., “Web censorship is now law in India”, (The Sunday Guardian, January 1, 2012), (Last Accessed on February 11, 2012), Available at: http://www.sunday-guardian.com/investigation/web-censorship-is-now-law-in-india18 Brown, Ian, “Internet Self-Regulation and Fundamental Rights”, (January 21, 2010), Index on Censorship, Vol. 1, March 2010, Available at SSRN: http://ssrn.com/abstract=1539942

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blocking of online availability of court judgements and

newspaper articles containing words such as pornography,

homosexuality, sexual assaults etc. Moreover, attempting to

block any website based outside India would be an exercise in

futility as it would result in the mushrooming of other

unblocked duplicate sites called “Mirror Sites” having the

same content.

Technical handicaps aside, such regulations are akin to the

censoring policies of the Chinese and Iranian governments

which time and again have been criticized for being too

repressive and anti democratic. India has the third largest

internet users in the world after China and USA and this

number is expected to triple in the coming three years19. Also,

the extent of internet is growing exponentially day by day. So

it is practically impossible to screen all websites. The only

way of controlling such objectionable content would be to

sanction a colossal budget of Rs. 39000 Crore20 and employ a

mammoth educated workforce as is present in China. To have

such a huge workforce solely dedicated to repressing the

freedom of speech will be contrary to our democratic

principles.

19 “Google and Facebook block content in India after court warns of crackdown”, (The Guardian, February 6, 2012), (Last Accessed on February 13, 2012), Available at: http://www.guardian.co.uk/world/2012/feb/06/google-facebook-india?newsfeed=true20 “Status Update? Bad”, (Outlook India, December 19, 2011), (Last Accessed on February 13, 2012), Available at: http://www.outlookindia.com/article.aspx?279280

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So does that suggest that the Internet needs no censorship?

Definitely not. Fair criticism is definitely an indicator of a

healthy democracy and should never be suppressed. But in no

way should such criticism should result in deriding a

politician, not least a woman politician. The morphed

photographs of the politicians circulating on the net bear

testimony to this fact. Expecting toleration of such conduct

on the facade of freedom of speech would be a fraud on

democracy itself. Thus reasonable limits must be there for a

clear demarcation between fair criticism and unwanted

defamation. This can only be achieved via governmental

regulations and self regulation working in tandem.

B. WIKILEAKS

The American government has always been quick to denounce

other countries for impeding free speech and has always acted

as a defender and a propagator of online freedom of speech. In

fact, on January 2010, U.S. Secretary of State Hillary Clinton

in her speech regarding internet freedom had remarked “Even in

authoritarian countries, information networks are helping people discover new facts

and making governments more accountable”21. However, the recent

blocking of the whistleblower site WikiLeaks has exposed the

hypocrisy of the US government. WikiLeaks is a website that

21 Naughton, John, “Live with the WikiLeakable world or shut down the net. It's your choice” , (The Guardian, December 6, 2010), (Last Accessed on February 26, 2012), Available at: http://www.guardian.co.uk/commentisfree/cifamerica/2010/dec/06/western-democracies-must-live-with-leaks

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“releases material exposing the inner workings of governments, banks, large

companies and religious organisations.”22 Any person in possession of

such confidential data can submit it to WikiLeaks without the

apprehension of being caught by the government. It has its own

editorial board to ensure that only matters relating to

“political, diplomatic or ethical significance”23 are published. In the past

few years, WikiLeaks has raised a storm over political circles

in various countries by exposing sensitive information in an

attempt to abolish official secrecy. For Example, WikiLeaks

leaked previously undisclosed details of the relations of the

US government with other countries and exposed a lot more

potentially embarrassing secret information24 involving not

only national Governments but also other institutions like

corporate houses, religious bodies, banks etc25.

Governments across the globe have responded sharply to the

disclosures made by WikiLeaks. Consequently, its main site has

been banned in almost every country. Moreover, all major

online payment processing companies like Paypal have frozen

its accounts to prevent any donations to the site26. Thus, it

now has to depend on proxy websites and anonymous donations in22 Fischer, Dan, “WikiLeaks: Everything you need to know”, (Herald Sun, December 8, 2010), (Last Accessed on February 15, 2012), Available at: http://www.heraldsun.com.au/news/everything-you-need-to-know-about-wikileaks/story-e6frf7jo-122596779152323 “Wikileaks: Submissions”, (Wikileaks), (Last Accessed on February 13, 2012), Available at: http: //wikileaks.org/wiki/WikiLeaks:Submissions24 Hope, Christopher, “WikiLeaks sparks worldwide diplomatic crisis”, (The Telegraph, November 28, 2010), (Last Accessed on February 14, 2012), Available at: http://www.telegraph.co.uk/news/worldnews/8166502/WikiLeaks-sparks-worldwide-diplomatic-crisis.html25 Supra n.Error: Reference source not found

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order to sustain itself. These attacks on WikiLeaks have

raised an important question regarding the very future of

journalism itself.

However, one must also take into account that Wikileaks has

now started resembling a private intelligence organization,

accountable to none, due to the sensitive nature of

information it disseminates. WikiLeaks, being a part of media,

must similar liabilities that any other media for what it

publishes or broadcasts. In 2010, WikiLeaks revealed a list

of infrastructure sites globally considered crucial for

national security by the US government. Ironically, this list

was compiled by the US government in order to protect its

interests from terrorists. Thanks to WikiLeaks, such an

important list is now available to every person at the click

of a button and could be used by terrorists or saboteurs to

wreak havoc. Thus, accusations of WikiLeaks releasing

information without regard to national security are not

completely baseless.

Apart from National Security concerns, WikiLeaks has also

often disregarded the rights of privacy and intellectual

property of an individual. More than often, WikiLeaks

infringes the right to privacy of non-governmental and non-

corporate bodies, which have absolutely no bearing on public

policy or security of the state. Such publishing of

confidential information without sufficient cause is the worst

26 “PayPal cuts Wikileaks access for donations“, (BBC News US & Canada, December 4, 2010), (Last Accessed on February 16, 2012), Available at: http://www.bbc.co.uk/news/world-us-canada-11917891

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form of “Information Vandalism”27. Intellectual property rights of

authors are also treated with disdain by WikiLeaks. On March

2nd, 2009, it released a book on corruption in Kenya titled

“It’s our turn to Eat” on its website28. This book had been banned in

Kenya due to its supposedly controversial content. WikiLeaks,

with complete apathy towards the intellectual property rights

of the author, justified such a release by claiming that

people of Kenya should have had access to such a book. But

what it failed to realise was that by releasing a pirated copy

of that book worldwide instead of simply restricting it to

Kenya, the earnings of the author were hugely affected.

Many cables leaked by WikiLeaks also quote various politicians

and other world authorities speaking candidly in private

regarding their relations with authorities and politicians of

other countries. Such information could have the capacity to

sour relations between two countries. It is a known fact that

in order to prosper, some things are better if they remain in

private. Leaking such information would have no positive

effects whatsoever, but would further deteriorate world peace.

Thus, it can be said that some information are released by

WikiLeaks not because they are of public importance, but

merely because it has the ability to make it public. But this

27 “WikiLeaks says ‘transparency’, critics say vandalism”, (The Indian Express, July 2, 2010), (Last Accessed on February 13, 2012), Available at: http://www.indianexpress.com/news/wikileaks-says-transparency-critics-say-vandalism/652059/028 “Kenya sleaze book sparks shop ban” (BBC News, February 27, 2009), (Last Accessed on February 16, 2012), Available at: http://news.bbc.co.uk/2/hi/africa/7911007.stm

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does not mean that WikiLeaks has no relevance, especially in

the contemporary political environment where concealment of

sensitive information under the guise of official secrets is

commonplace. Therefore, equilibrium must be sought between the

need to expose such data and preserving reports which can put

national security at stake. Additionally, extra care must be

taken to ensure that only those data are exposed that promote

government accountability and transparency and not publicity.

C. PIPA and SOPA

India has always been accused by the West of not valuing the

right of free speech and expression. According to an article

in The Sydney Morning Herald, a leading newspaper of

Australia, “Freedom of expression is a Western notion that has never really

taken root (in India).”29 But the most alarming attack on the right to

free speech has come from the West itself.

A regular Wikipedia user would be well aware of the

controversy that has taken the online community by storm. The

US Senate and the House of People introduced the Protect IP

Act (PIPA) and the Stop Online Piracy Act (SOPA) respectively

with an intention to curb online piracy of copyrighted

material. Media giants supporting the bill argue that the

existing legislations are inadequate in controlling

29 Dhillon, Amrit, “Rushdie affair reveals free speech is a slippery idea in India”, (The Sydney Morning Herald, January 31, 2012), (Last Accessed on February 20, 2012), Available at: http://www.smh.com.au/opinion/society-and-culture/rushdie-affair-reveals-free-speech-is-a-slippery-idea-in-india-20120130-1qpls.html

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intellectual property. On the contrary, critics of the bills,

including internet giants like Yahoo, Google, Wikipedia etc

claim that the bills will give enormous powers to the

government to block websites making even a minor unauthorized

use of copyrighted material. This would mean that if a small

section of an article in Wikipedia is picked up from a

copyrighted source, which the editorial board of Wikipedia

failed to notice, the entire site may be pulled down by the

government.

Compared to PIPA, SOPA is bound to have an even greater impact

on online freedom as it provides for prosecuting sites

including search engines like Google if they fail to act in

preventing piracy. This may sound very simple, but is not.

Google processes approximately over 20,000 terabytes of data

each day.30 If this bill is passed, Google will have to monitor

every website for intellectual property violation and delete

offending websites, which is practically impossible. As a

result, on January 18, 2012, many major websites such as

Wikipedia, Reddit, Wordpress etc blacked out for a day as a

part of the largest online protest ever conducted.

But online piracy is undoubtedly a major problem which needs

to be checked. According to a survey by the Motion Pictures

Association and L.E.K., an international consulting firm31,30 Schonfeld, Erick, “Google Processing 20,000 Terabytes A Day, And Growing”, (Techcrunch, January 9, 2008), (Last Accessed on February 20, 2012), Available at: http://techcrunch.com/2008/01/09/google-processing-20000-terabytes-a-day-and-growing/31 “The Cost of Movie Piracy”, (Last Accessed on February 20, 2012), Available at: http://austg.com/include/downloads/PirateProfile.pdf

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every year billions of dollars are lost due to illegal

distribution of movies, songs and books. The software industry

also faced a massive loss of $53 billion in 2009 alone. Online

piracy is not restricted to movies, songs and books, but also

includes selling of important day-to-day consumer goods such

as pharmaceuticals. These fake products are of inferior

quality and can pose a serious health risk. This may not harm

large publishing and media houses to a great extent, but it

could deliver a death blow to smaller companies. Even from any

craftsperson or artisan’s point of view, piracy is a major

detriment to creativity and artistic spirit.

Even if the intention of the U.S. Government may seem bona-

fide, its ends are not justifying the means being used. No

bona-fide ends can be achieved via questionable means. The

bills entrust regulatory control of the internet to the US

government, a practice prevalent only in authoritarian regimes

aimed at stifling free speech. As mentioned above, such

control should be the sole domain of internet users, albeit

with a few restrictions. A better alternative would be to

promote self regulating mechanisms among websites which can

report copyrighted content by themselves. Only those websites

which deliberately promote copyright violation should be at

the receiving end of legal authorities and should be the main

focus of such regulations.

The Internet is possibly the finest medium of speech ever

invented. Blocking of websites like Wikipedia and other open

source websites is a huge attack on freedom of speech. The

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Internet has faced censorship before, but it was only limited

to the country censuring the internet, without affecting the

Internet services of other countries. Passing of these bills

in their original form will be an unprecedented move by any

country to shut down websites across the world. Till date the

internet has had no nationality. PIPA and SOPA threaten to

change all that.

CONCLUSIONFreedom of speech is the cornerstone of a successful

democracy. But nowhere in any democracy has this right been

made unqualified. This privilege might have been pivotal in

development of human civilisation, but too much of this

freedom may well result in its stagnation. An unfettered right

to free speech can be potentially detrimental to the entire

community at large. The ancient phrase “Sticks and stones may break

my bones, but words will never hurt me” holds no value in today’s

context. Speech has the tendency to demolish reputations,

built in years of hard work, in minutes. Malicious and

defamatory words against a person are equally damaging as any

physical injury and maybe even more. Thus there is a need to

balance the unconstrained use of this right against the

restrictions imposed upon it not only in order to protect

national security, but also to respect the reputation and

religious beliefs of individuals.

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Unfortunately, any governmental attempt at restricting the

freedom of speech is met with scepticism by people. We should

not “look at Government’s laws per se but at government’s reasons for enacting

those laws”32. Most people fail to realise that no right is

absolute and that all rights are accompanied by a

corresponding duty of respecting others’ rights. There is

definitely a need to oppose censorship but there must be

proper reasons for doing so. No unreasonable restriction

should be allowed to reduce the sanctity of this sacred right

to the extent of making it meaningless.

The dawn of the internet has brought a new era in the easy

access to information and has thus enabled people to better

assert their rights as citizens. Such an easy access to

information has always been viewed with unease by governments

round the world. In fact, majority of the Constitutions across

the globe reflect the ideals of free speech; yet governments

willingly suppress these very ideals. This is evident from the

new multinational treaty Anti-Counterfeiting Trade Agreement

(ACTA) which will supposedly take the place of PIPA and SOPA

in combating Online Piracy and Intellectual Property

violations globally. Without the ratification of the major

economies like India and China, the treaty would result in a

complete failure. If these countries ratify this treaty, it

would surely be the last nail in the coffin for freedom of

speech.

32 Larry Alexander, Freedom of Speech Volume I: Foundations, Dartmouth Publishing Company Limited, Second Edn., p. 6

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The freedom of speech may face even greater challenges in the

days to come. But come what may, this privilege of free speech

should not be misused in a way which is antithetic to our

democratic ethos and the fundamental values of truth and

integrity. Freedom of speech is certainly an essential right,

but definitely not an absolute one.