New Scientific Development and the Freedom of Speech

In one line

Every new medium has been said to require a new doctrine, and what has actually happened is that the same doctrine has been applied while the assumptions underneath it quietly stopped holding.

In the wording a student can write in an exam: article 19(1)(a) is not confined to any medium, and the grounds of restriction in article 19(2) do not vary with the technology used. The freedom has accordingly been held to extend to print, to film, to broadcasting and, in Anuradha Bhasin v. Union of India, to speech and to trade over the medium of the internet, subject in each case to article 19(2) and to the test of proportionality. What changes with each new technology is not the doctrine but the factual assumptions the doctrine was built on: about who publishes, at what cost, to what audience, with what permanence, and through whose hands the speech passes.

The four assumptions that technology has removed

This is the organising idea of the chapter, and an answer built on it will be better than one that lists gadgets.

Assumption one: publishing is expensive, so publishers are few. The whole architecture of press law assumes an identifiable publisher with a printing press, an editor and an address. Regulation was addressed to that person. When everyone can publish at no cost, a rule proportionate as applied to a newspaper may be grossly disproportionate applied to millions of individuals, and the practical enforcement of any speech restriction becomes selective, which raises its own article 14 problem.

Assumption two: speech is local and perishable. A defamatory statement in a newspaper reached one city and was forgotten. Online it reaches everywhere, stays indefinitely, and resurfaces. The proximity test for incitement, described in [Hate Speech, Fake News and Broadcasting], assumes a speaker addressing a crowd; it fits badly where the audience assembles months later.

Assumption three: the speaker controls the speech. In print the publisher decided what appeared. Online the speech passes through an intermediary whose incentives differ from the speaker's, which gives the State a lever against the carrier rather than the speaker, as [Speech Online] explains.

Assumption four: to reach an audience you must persuade a publisher. Now an algorithm decides what is seen. Nothing is censored and much is invisible, which no doctrine framed around prohibition addresses at all.

What has stayed the same, and should be said first

Before describing what is new, an answer should establish that the doctrine has held, because that is the legally correct position and it earns credit.

The medium does not change the right. Anuradha Bhasin v. Union of India, decided 10 January 2020, declared that the freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), and that restrictions must be in consonance with article 19(2) and (6), inclusive of the test of proportionality. It also directed that suspension orders be published, that indefinite suspension is impermissible, that suspension must be temporary and not beyond the necessary duration and is subject to judicial review, with review by the Review Committee within seven working days, and that under section 144 the danger must be in the nature of an emergency, the power may not be used to suppress legitimate expression of opinion or grievance, the order must state material facts, the Magistrate must apply the least intrusive measure, and repetitive orders are an abuse of power.