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Anonymity v/s Real Name: Anonymity As A Tool Of Privacy And A Gateway Of Freedom Of Speech And Expression

 One of the biggest challenges will be finding an appropriate balance between protecting anonymity and enforcing consequences for the abusive behavior that has been allowed to characterize online discussions for far too long - Bailey Poland writer, feminist, and activist, as well as the creator of the literary journal Leaves and Flowers

This era is known as the digital era, an era of information and communication technology. With the proliferation of the internet regime[1] during the recent past and dependency,[2] the world has witnessed a revolutionary impact of various technological developments including the development of the communication technology.

The emergence of social media, one of the most important representative of communication technology in the internet regime is considered indispensible in the present day digital world that has opened a new vistas of opportunities pregnant with enormous potentiality, the benefit of which is confined not only to a particular generations or country but to the world at large irrespective of age, caste, religion, culture, race, creed and the boundaries.

It has such tremendous potentiality that wherever and whatever field it may be, be it social, educational, administration and political, cultural or economical (business and marketing), health etc., in each and every field, we are experiencing transformations as most of the works are possible sitting at home with the extensive cooperation of the internet. It is thereby threw challenges to the traditional methods of communication with which we were quite acquainted and in some cases either such traditional mode of communication has set at rest or despite following such traditions the new evolution has successfully overcome it.

Today it is absurd to think a life where the influence of such technological development could not be found.
As the social media is considered as a useful tool to express freely one's own view publicly on social issues with a bonafide intention for the benefit of the society, many a times it has been seen that such public exposure might have led to such a voluminous effect on the society at large and the ruling party in particular, that the person who had expressed such opinion has to face different types of social stigmas such as ‘terrorist', ‘desh ka gaddar' if anything said against the government resulting in the arrest of the person including his family members.

On the other hand, if something has said on social issues against the flow or trend, such as supporting LGBT's and their rights, speaking on hate speech, COVID-19, supporting the alleged rapist etc. the obvious result would be that the maker of such opinion would be subject to social boycott with a threat to murder, sexual abuse, kidnapping and so on and so forth. Of course, there are people, who, with a malafide intention, are using the social media as a weapon to express their views in order to attract the attention of the public to gain some mental satisfaction trolling people who, genuinely believed that the statement was fair enough and is justified, still the maker will be subject unforeseen consequences.

On the flipside, there are people, who hold the view that to make a (fair) comment against the flow or to be a part of minority/dissent opinion is not only the right of the commentator, it is a protected right, to be cherished living in a democracy. Such comment and counter comments sometimes lead to trolling with an unfortunate ending.

In order to avoid this situation, it has been noticed during the recent past that people takes the shield of anonymity[3], to safeguard not only one's own life and the life of family members, it also helps in protecting the lives of others as well. With a view to unveiling the truth, it is important that citizen should exercise its freedom of justified opinion on the public forum on different issues in tune with the democracy, of course, within the veil of anonymity.

The anonymous, by keeping its name undisclosed, is also protected under the privacy right which is a fundamental right and this would help enjoying his right to life freely without any fear of danger which is possible only if there exist any law protecting the right of the anonymity in the social media. In India, we do not have any law so far, enacted by the legislature. There are some laws under which the right of the anonymity may be dealt with and the two such important laws in India in connection with the same are: The Information Technology Act, 2000 and The Indian Penal Code, 1860. There cannot be any law unless and until Constitution of India contains provisions to that effect.

The important provisions under Part III of the Constitution of India relating to the anonymity right fall under Article 19 (1) (a) deals with fundamental freedom of speech and expression and Article 21 fundamental right to life and personal liberty including the right to privacy. Some other Articles may also be considered relevant depending on the circumstances of the case. But till date, no such law on protecting right of the anonymity has been enacted so far by the legislature nor judiciary has specifically guaranteed such rights in any judgement. under the Constitution of India shall extend to such disguised citizen of the country who does not want to unveil the anonymity or the person is bound to disclose his real name without which such fundamental freedoms could not be extended to them.

The researcher, in this paper, has made an attempt to trace out the tremendous impact of the involvement of such inalienable social media in every stretch of life, whether social, educational, moral, cultural, political and economic, health etc.. An attempt has also been made to trace out the right of anonymity to enjoy the freedom to place one's own view publicly in connection on the public issues under the veil of anonymity in the light of the Constitutional provisions taking into consideration the existing international instruments which dealt with on such rights. Further, the exercise of the freedom of expression on the social media by anonymity would not be possible without taking into consideration the right to privacy.

Whether anonymity is permissible and safeguarded under the umbrella of the fundamental right to privacy, a part of life and personal liberty guaranteed under the Constitution of India under which fundamental freedom of speech and expression could properly be enjoyed avoiding the consequence of social trolling without risking one's own life and the lives of his family members.

II. Social Media And Its Impact On Different Aspects Of Social Life

Social media refers to websites and applications that are designed to allow people to share content quickly, efficiently, and in real-time[4]. Social media by the way of being social is composed of society or persons interacting with each other. Social media is one of the most revolutionary inventions of the recent times the world has witnessed and India with no exceptions was part of it. Social media may be considered as a society, e-society, where and individual come into contact with other through this media to create a social relationship. The social media had has a long impact in India in all aspects of life and the people, especially the Gen-Y and Gen-Z are the major group who are more comfortable in this media rather than actual social life.

The importance of social media, time and again, found its actual recognition in India in the recent times, when, it is once again pioneered by our Prime Minister Narendra Modi introducing the concept of digital India with a view digitised India in all respect be it, education, commerce, industry including IT industries, in almost every field the world is witnessing how India is digitally growing, the benefit of which could seen in the recent future with or without Prime Minister Narendra Modi. Although he considered it as such with a view to build political image worldwide but its importance with reference to other fields (social, cultural, economic, education etc.) with which the life of people is interwoven, cannot be ignored.

Sharing information through social media is imperative to accomplish digital citizenship which undeniably opened fresh avenues to share and spread information and knowledge and services, to more and more people in short span of time that too at nominal cost[5]. It has emerged as vital convenience means of communication and has shaped new ways of mobilising public opinion and cheering them on whatever may the issues connected with the particular field of interest that affects the mankind. As the social media has become an important tool of self-expression, it has made an effective impact in intrapersonal, interpersonal and mass communications. If there exist a conflicting of interest resort may have of any of the media (Facebook, Tweeter, YouTube, Instagram, Whatsapp etc.) to resolve such conflicting issues on the basis of democratic way of participation where majority consensus are being followed. That is why social media is considered as an important interactive platform through which individuals and communities split, co-create, confer, and modify user-generated content.

III. Concept Of Anonymity And Its Usefulness In The Social Media

Anonymity allows the individual to have a voice without disclosing a name or a name which is pseudonym[6]. On the other hand, it is writing online under a name that is not linked to one's own civil identity, including having no name at all.

It can thus also mean writing under a pseudonym. The foremost reason for being anonymous is to promote freedom of expression, enabling the free flow of information, enhancing therapeutic disinhibition, and fostering an atmosphere where ideas are judged on merit without violating the privacy of the anonymous.

Social media on the other hand, has provided with a democratic tool in the hands of the people in organising different types of movements which have made a far reaching impact in the social, political, economic, health, education, etc. touching almost in all the fields where the interest of the common people are involved, changing the social scenario whenever a need of transformation in social sector arises.

It is through the social medias, the countries of the world including India has witnessed different successful movements, from Anna Hazare to Hokkolorob[7] to Hashtag to Occupy Wall Street to the sensational Delhi's Nirbhaya rape case, all based on public opinion that have such a tremendous and revolutionary effect where the adversaries were made bound to suppress their respective opinion against the mass opinion. In addition to the above, the impacts can also be seen across social issues such as public health (including maternal health and child behavior); gay, lesbian, and bisexual (GLB) identity; and climate change. Targeted, well-executed media campaigns reach audiences via a medium they pay attention to, leading to increased knowledge and changes in behavior[8].

Internet users in general and social network application users in particular are vulnerable to numerous personal information leakages. Therefore, the concept of anonymity on Internet, which has been introduced in recent years to help Internet users protect their privacy from getting disclosed, is quite important[9]. This is also important from the e-commerce point of view. Every day there are numerous cases and we became used to of hearing the cases of leaking of personal information such as e-mail addresses or debit/credit care information which is required for most electronic transactions.

Specific privacy concerns in this realm include use of customers' information by companies for electronic surveillance (e.g., cookies), email solicitation (e.g., spam), or data transfer (e.g., when customer database information is sold to third parties or stolen) resulting in identity or credit card theft[10]. This lead to victimisation, and to overcome this, more and more emphasise must be given on the anonymous communication and thereby help in protecting people's right to online privacy and also the freedom of speech and expression reducing the possibility of getting trolled or harassment or embarrassment and finally free from retribution.

This is the positive aspect of anonymity. The negative consequences include lack of accountability and credibility, nondisclosure, and deindividuation[11]. It can also lead to aggression and anti-social behaviour. In the United States, anonymity has been viewed as a way to encourage freedom of expression as guaranteed by the First Amendment. It enables one to voice unpopular views without fear of retribution, especially in public or political matters. Anonymity is seen as being even more precious in repressive regimes or for those in the minority[12].

Anonymity is considered significant in recent years for several reasons:

  1. It allows individuals to explore themselves in the field of social media.
  2. It helps in developing social skills that can discourse with less fear of stigma, embarrassment or reprisal.
  3. It also helps in promoting freedom of expression freely, unequivocally.
  4. The uncovering of a factual situation without any harmful effect to the anonymous but beneficial to the mankind.
  5. It involves one's ability to exert boundary control maintaining and protecting the right to privacy.
  6. Maintain individual autonomy which involves the chance to experiment with new behaviors without fear of social consequences.

Anonymity is maintained on the Internet through a variety of formal and informal mechanisms. Formal mechanisms include trusted intermediaries such as anonymous remailers and anonymous electronic cash or escrow accounts. To a lesser degree, anonymity can be maintained through informal means such as the use of names or handles that cannot be linked to an individual[13].

One of the earliest anonymous social media forums was 2channel, which was first introduced online on May 30, 1999, as a Japanese text board forum[14]. Apps such as Formspring (also known as spring.me), Ask, Sarahah, Whisper, and Secret have elicited discussion around the rising popularity of anonymity apps, including debate and anticipation about this social sharing class[15]. The above apps are mainly used for cyber-bullying and for personal defamation resulting in teen suicides as a result of cyber-bullying.

The other apps such as, Yik Yak, Secret etc. have either been shut down or blocked due to escalating number of cyber-bullying. Apps like After.School has been removed from the Apple and Google app stores. However, Anonymous apps such a Chrends take the approach of using anonymity to provide freedom of speech[16].

IV. Anonymity On Social Media: A Shield Of Privacy And A Gateway To Freedom Of Speech And Expression Under The Legal Regime

Privacy and expression are oxymoronic. While privacy requires secrecy, expression entails publicity, and this inevitably leads to friction[17]. Anonymity has been recognised for the important role it plays in safeguarding and advancing privacy, free expression, political accountability, public participation and debate[18].

Although evolution of new technology such as gait recognition technology, global positioning systems, RFID tags, and video surveillance act as a threat to the anonymity making it possible to locate, track and identify individuals behind the mask, there is a need to bring such group of anonymous people to provide protection under the law. The right to speak freely irrespective of the media would be violated if without checking the genunity of the statement of the maker, an adverse step is taken.

The need for anonymity online in India can be understood from an incident that shook the country when in Uttar Pradesh Jagendra Singh, a responsible citizen was burnt alive allegedly by Uttar Pradesh Minister Ram Murti Singh Verma, for posting messages on Facebook against the minister regarding his alleged involvement in illegal mining and land grabbing[19]

Had the deceased name not been disclosed, his life could have been safeguarded and after proper investigation of the matter, appropriate measure would possibly be taken. Therefore, the question is whether Constitution of India and the existing legal framework extended sufficient protective umbrella under which the freedom of expression and privacy right under the anonymity could be freely enjoyed? Before dealing with the legal regime of anonymity right on social media in India, let us have a look in some international instruments which could be instrumental in protecting such right under the law.

IV. I Position Under International Instruments

Different international conventions convened in different times throughout the world, highlighted the importance of some basic, inherent and inalienable human rights including the above mentioned two rights without which life is meaningless. Freedom of speech and expression and the right to privacy are indispensable and so interrelated to each other that sometimes to speak legitimately (subject to reasonable restriction), the protection of the privacy in the name of anonymity is obvious otherwise the maker of the legitimate speech would come under the bad book resulting in taking away by the government, such rights in the name of imposing reasonable restriction clause amounting to unprecedented harassments and reprisal.

To avoid such harassments, it is, therefore, necessary to use the shield of anonymity under which an individual would have the courage to speak legitimately which is important to run the wheel of democracy beneficial to the society as a whole without which an individual is like a warrior without a sword meant to surrender without falling into fight.

Article 19[20] of the Universal Declaration of Human Rights (UDHR) enshrines the right to freedom of opinion and expression, which includes the right to seek, receive and impart information and ideas through any media[21]. Despite the UDHR there are numerical Articles under different international instruments[22] in which specific provisions have been laid down on the above said two rights. The right to social media anonymity has so far received limited recognition under international law.

Traditionally, the protection of social media anonymity has been linked to the protection of the right to privacy and personal data. In May 2015, the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights published its report on encryption and anonymity in the digital age highlighting that an open and secure internet should be counted among the prerequisites for the enjoyment of freedom of expression today, and must therefore be protected by governments.

Encryption and anonymity must be strongly protected and promoted because they provide the privacy and security necessary for the meaningful exercise of the right to freedom of expression and opinion in the digital age.[23] On the other hand, the 2013 report of the Special Rapporteur on Freedom of Expression highlighted the important relationship between the rights to privacy and freedom of expression in cyberspace.[24] The report also observed that restrictions to anonymity facilitate states' communications surveillance and have a chilling effect on the free expression of information and ideas.[25]

Despite imposing reasonable restrictions, there are certain rights which are impermissible in the sense that they are not subject to any restriction of any kind. As stipulated in UN Human Rights Council resolution 12/16,129 these include: discussion of government policies and political debate; reporting on human rights, government activities and corruption; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and the expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups[26].

IV. II Position In India

In India, the right to freedom of speech and expression is guaranteed under Article 19(1)(a)[27] and the right to privacy has been finally included under Article 21[28] within the scope of life and personal liberty of the Constitution of India. In Justice K. S. Puttaswamy (Retd.) v. Union of India[29], an interesting question had raised by the Nine Judge Constitution bench that if right to privacy could be so pervasive that a person would be allowed to remain anonymous.

Can an individual assert his right to be anonymous?
A fundamental question before us is about to what extent an individual can say that he has a right to remain anonymous. To what extent you can assert your right to privacy to suppress your identity,” asked Justice Chandrachud.

However, as in the International Covenant on Civil and Political Rights, freedom of expression in India is not absolute; Article 19(2)[30] sets out certain criteria for the reasonable restriction of freedom of expression. These criteria have been applied for offline media for decades, shaping India's jurisprudence on freedom of speech and expression[31] and extended to the online communications as well.

If in the name of imposing reasonable restrictions, the freedom of expression is arbitrarily taken away at the hand of the government, then how it would be possible for the citizen of India to enjoy it living in a democracy because democracy virtually demands to speak freely without any fear of reprisal. Hence, to protect and safeguard one's own interest the veil of anonymity is obvious. This is because democracy virtually demands anonymity. The importance of protecting anonymous speech in a democracy was perhaps best stated by the US Supreme Court in McIntyre v. Ohio Elections Commission[32] Anonymity is a shield from the tyranny of the majority,” Justice John Paul[33].

In some ways article 19(1)(a) of the Constitution of India mirrors the US Constitution's First Amendment. While these rights were originally intended to be offline rights, they have since been extended to other media including the online space through judicial pronouncements.

For instance, in People's Union for Civil Liberties v. Union of India[34], the Supreme Court extended the right to privacy to telephonic communications, in a case that concerned wiretapping and interception of communications. Similarly, in Shreya Singhal v. Union of India[35], the Supreme Court recognized that freedom of speech and expression are integral to the internet, where access to and publication of information require this fundamental right.

So far as the law is concerned, In India, till today no specific law relating to the anonymity right that has been enacted by the legislature. In the absence of specific laws, resort may have of the existing general laws under which the protection of the anonymity right on social media could be considered. Apart from the Information Technology Act, 2000, Indian Penal Code, 1860 may be referred for handling the aspect of the anonymity rights. The Information Technology Act, 2000, instead of protecting the right of anonymity provides provision for punishment under Section 67, for publishing or transmitting obscene material in electronic form with the imprisonment upto five years and with fine which may extend to ten lakh rupees.

Whereas, under Sections 69 and 69A the government has been empowered to intercept, monitor and block websites for public access for preserving public order and preventing incitement which is an exercise of the power of imposing of reasonable restriction provided under Article 19(2) of the Constitution of India. Besides, Section 463[36], 464[37], 468[38] and 469[39] of the Indian Penal Code, 1860 read with Section 66[40] of the Information Technology Act, 2000 may be resorted to having connection with forgery, making of false document, forgery for the purpose of cheating or harming reputation both on online and offline media.

Similarly, Sections 354[41] A and B, 499[42] and 509[43] all are important Sections that is to be applicable to the anonymous if anything publishes are subject to above Sections and if proved such act would be punishable as described under the Indian Penal Code, 1860. Special mention should be made of Section 507[44]which specifically deals with criminal intimidation by an anonymous communication. A perusal of the above Sections revealed that there is the dearth of legislative framework for the protection of the anonymity rights on social media.

Recently, the Government has introduced a Bill in the name of Personal Data Protection Bill for the social media which raises a cause of concern allegedly incorporating the provisions relating to governmental access to citizen's data which is significantly differs from the one proposed by the Justice Srikrishna Committee and is according to Justice Srikrishna (Retd.) dangerous and capable of creating ‘an Orwellian state[45]'. It is alleged that instead of protecting the right of the anonymous, the new rule will rather take it. The new rules will apply to all 'social media and messaging' companies. India already has several restrictive internet-related laws in place, but this one is arguably the worst of them all[46].

Therefore, enacting specific law to protect the anonymous from the arbitrary action of the government and also from the common people, who, without justifying the publication of any statement made by the anonymous, keep trolling the author to face any untoward incidents including the taking away of the life. However, there might be circumstances where the state can lawfully intervene to force someone to come out of a cloak of anonymity in the interest of the country, there is a belief that such powers could be exploited to protect the private interests of government. Therefore, drawing a proper balance, between protecting anonymity and fighting abusive trolls, becomes a tricky exercise.

The state could demand compromised anonymity because it perceives a crime in someone tweeting threats, sure, but also if it chooses to perceive a crime in someone criticising a ruling party, expressing homosexuality, political dissent, or any of an array of inconvenient national truths,” Rega Jha, the editor of BuzzFeed India once told It feels like if this power exists, anonymity wouldn't serve its noblest purpose in a democracy anymore – allowing citizens to express the important truths that are dangerous to voice with a name and face attached[47].

Conclusion
The widespread availability of high-speed internet has changed the traditional mode of communication from face-to-face communication to a virtual communication. Out of the various modes of communications, social media platforms are meant to be an extension of our real-world identities, providing an opportunity of anonymity for people who need it the most.

Although, some section of people are of the opinion that people should have enough conviction in expressing freely on what they truly believe and there is no need to hide or keep oneself behind the veil forgetting the far reaching consequences of so-called truth that might jeopardise the life of the maker of the statement, however, it is a matter of debate and irrespective of the disagreements, the technology for anonymity on the social media is available and that a definite vacuum is being filled by anonymity services. Several States enjoy long traditions of celebrating anonymity in their political cultures, but very few provide general protection in law for anonymous expression such as United States and United Kingdom and European Union.

The decision of the apex court of some of the countries has also extended protection to the social media anonymity right. For example, the Supreme Court of Canada recently struck down the warrantless acquisition of anonymous user identity online. The Constitutional Court of the Republic of Korea struck down anti-anonymity laws as unconstitutional. The Supreme Court of the United States has consistently protected the right to anonymous expression.

The European Court of Human Rights has recognized anonymity as important to the freedom of expression but permits limitations in cases where necessary to achieve legitimate objectives.[48] Therefore, it is highly expected that the legislature of India shall enact laws recognising and protecting the right to anonymous speech, right to read anonymously and right to browse online anonymously subject, of course, to the genuinity of interest of the nation.

Any restriction on anonymity and encryption must fully comply with the three part test of restrictions to freedom of expression and should be subject to strong procedural safeguards:

  1. States and companies should promote the use of tools such as Tor and https:// protocols that allow encrypted browsing;
  2. States should recognise in their legislation and practices that encryption is a basic requirement for the protection of the confidentiality and security of information and that, as such, it is essential to the protection of the right to freedom of expression online;
  3. States should repeal laws or refrain from adopting laws requiring government authorisation for the use of encrypted products[49].


End-Notes:

  1. With over 560 million internet users, India is the second largest online market in the world, ranked only behind China and by 2021, there will be over 600 million internet users in India, available at: https://www.statista.com/topics/2157/internet-usage-in-india/ (Last visited on April 30, 2020).
  2. According to Statista Research Department, the data published on March,31, 2020 upto 2017, 34 % of the total Indian population could avail the accessibility of internet, available at: https://www.statista.com/topics/2157/internet-usage-in-india/ (Last visited on April 30, 2020).
  3. As per the Cambridge English Dictionary, Anonymity is the situation in which someone's name is not given or known.
  4. Mathew Hudson, Small Business”, available at: https://www.thebalancesmb.com/what-is-social-media-2890301 (Last visited on May 2, 2020).
  5. Sumit Chaturvedi and Dr. Sachin Gupta, Social Media Promotions- Can We Restrict It Under Law?”, 1(1) International Journal of Research-Granthaalayah at pp. 43-50, (2014), available at: http://granthaalayah.com/Articles/Vol1Iss1/06_IJRG14_A08_11.pdf (last visited May 3, 2020).
  6. Although anonymity and pseudonym have different connotation but for this article, both the terms have been considered as same.
  7. Let there be clamour. It started in September 2014 as a series of Jadavpur University students' protests against the problematic handling of a reported case of sexual molestation on campus on 28 August 2014, and against the subsequent police attack on peacefully agitating students, quickly went viral and erupted into a massive movement. The student protests spiralled into ‘#hokkolorob' within exactly three days and it took on the dimensions of a global protest.
  8. Media Development's role in Social, Economic, and Political progress, Media Development Investment Fund, available at: https://www.mdif.org/wp-content/uploads/2019/07/Media-Developments-Role-in-Social-Economic-and-Political-Progress-Literature-Review.pdf (Last visited on May 3, 2020).
  9. Hoang Nguyen Phong and Pishva Davar, Anonymous Communication and its Importance in Social Networking,” ICACT Feb. 16-19, 2014 at p. 37 available at: http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.669.2707&rep=rep1&type=pdf (Last visited on May 3, 2020).
  10. Ibid at p.34.
  11. Maureen Weicher, [Name Withheld]: Anonymity and Its Implications,” available at: http://eprints.rclis.org/8768/1/Weicher_Name.pdf (Last visited on May 2, 2020)
  12. Ibid.
  13. Id.
  14. Anonymous Social Media, Wikipedia Free encyclopedia, available at: https://en.wikipedia.org/wiki/Anonymous_social_media (Last visited on May 4, 2020).
  15. Kelly Heather, "Anonymous social apps provide forum for gripes, gossip", CNN.Feb 28, 2014, available at: https://edition.cnn.com/2014/02/28/tech/social-media/secret-social-apps/ (Last visited on May 4, 2020).
  16. Available at: https://www.independent.co.uk/voices/comment/want-freedom-of-speech-theres-an-app-for-that-9650215.html (Last visited on May 4, 2020).
  17. Althaf Marsoof, Online Social Networking and Right to Privacy: The Conflicting Rights of Privacy and Expression”, Vol. 19 (2), May, 2011, at p. 110, available at: https://www.researchgate.net/publication/220209791_Online_Social_Networking_and_the_Right_to_Privacy_The_Conflicting_Rights_of_Privacy_and_Expression (Last visited on May 9, 2020).
  18. David Kaye, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression”, Human Right Council, at p. 16, May 22, 2015.
  19. Journalist Burnt Alive, UP Minister, Cop Charged, June 10, 2015,available at: https://timesofindia.indiatimes.com/india/Journalist-burnt-alive-UP-minister-cops-charged/articleshow/47607739.cms (Last visited on May 5, 2020).
  20. Article 19 of the UDHR states that  Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
  21. Katitza Rodriguez, Freedom of Expression, Privacy and Anonymity on the Internet,” Comments submitted to the United Nations Special Rapporteur on the promotion and protection of the right to Freedom of Opinion and Expression January 2011, at p. 13, available at: https://www.eff.org/files/filenode/unspecialrapporteurfoe20 11-final_3.pdf (last visited on May 5, 2020).
  22. Such as International Covenant on Civil and political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1966, International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Convention on the Rights of the Child, International Convention on the Protection of All Migrant Workers and Members of their Families, American Convention on Human Rights, European Convention Human Rights, 1950, African Charter on Human and Peoples Rights, 1980 and Arab Charter of Human Rights, 2004.
  23. Supra Note 18, paras 12,16 and 56.
  24. UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/23/40, April 17, 2013, para 47.
  25. Ibid. paras 48-49.
  26. Supra note 25, at p. 38.
  27. Article 19 (1) provides that all citizens shall have the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business
  28. Article 21 of the Constitution of India states that No person shall be deprived of his life or personal liberty except according to procedure established by law.”
  29. (2017) 10 SCC 1
  30. Clause 2 of Article 19 states that in the … interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
  31. State of the Internet in Asia: The Case of India, Malaysia and Pakistan, APC-Impact, Project Summary Report, 2014-17, at p. 58 available at: https://www.apc.org/sites/default/files/StateOfTheInternetInAsia.pdf (Last visited on May 4, 2020).
  32. 514 US 224, 1995.
  33. Suhrith Parthasarathy, Naming Names: India Has Promised to Crackdown on Online Trolls, But the Right to Anonymity is also Threatened,” Reuter, September 20, 2016, at p. 19, available at: https://journals.sagepub.com/doi/pdf/10.1177/0306422016670331 (Last visited on May 6, 2020).
  34. (1997) 1 SCC 301.
  35. (2013) 12 SCC 73.
  36. Section 463 of the Indian Penal Code, 1860 (45 of 1860) defines Forgery” as whoever makes any….. false electronic records with intent to cause damage or injury to public or any persons…….. with the intent to commit any fraud, ….. commits forgery
  37. Section 464 of Indian Penal Code, 1860 (45 of 1860): Making of False Document: a person is said to make a false electronic record who dishonestly and fraudulently…… transmit or alter any electronic records……. with the intention of causing it to be that such electronic record was made by the authority of person by whom he knows .
  38. Section 468 of Indian Penal Code, 1860 (45 of 1860) Forgery for Purpose of Cheating: whoever commits forgery, intending that the electronic record used for the purpose of cheating shall be punished with imprisonment of either description for the term which may be extent to seven years and shall also be liable to fine
  39. Section 469 of Indian Penal Code, 1860 (45 of 1860) Forgery for Purpose of Harming Reputation: whoever commits forgery…. intending that the electronic records forged shall harm the reputation shall be punished with imprisonment of description for a term which may extend to three years and shall also be liable to fine
  40. Section 66 of The Information Technology Act, 2000 (21 of 2000) Computer related offences: if any persons dishonestly or fraudulently does any act referred to in section 43 shall be punished with imprisonment for a term which may extent to three years or with fine which may extend to five lakh rupees or both .
  41. Section 354A of Indian Penal Code, 1860 (45 of 1860) Sexual harassment and punishment for sexual harassment: any act which…….., demand or request for sexual favours or showing pornography against the will of a women or making sexual coloured remarks shall be guilty of the offence of sexual harassment and punished with rigorous imprisonment for a term which may extend to three years or with fine or both. Here sadly no punishment has been prescribed for making sexual coloured remarks . And Section 354 B deal with  Assault or use of criminal force to women with intent to disrobe”….shall be punished for the term of three to seven years along with fine
  42. Section 499 of Indian Penal Code, 1860 (45 of 1860)” Defamation: whoever by words either spoken or intended to be read……make or publishes any imputation concerning any person intending to harm, the reputation of such person, is said to defame the person .
  43. Section 509 of Indian Penal Code, 1860 (45 of 1860) Word, Gesture or act intended to insult the modesty of a women: whoever intending to insult the modesty of any women, utters any word, make any sound or gesture or exhibits any object shall be seen by such women or intrudes upon the privacy of such women shall be punished with simple imprisonment for a term which may extend to three years and also with fine
  44. Section 507 of Indian Penal Code, 1860 (45 of 1860) states that Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section”.
  45. India's Privacy Bill will Alter How it Regulates Social Media Platforms, Not all of it Good”, The Wire, February 21, 2020, available at: https://thewire.in/tech/indias-privacy-bill-regulates-social-media-platforms (Last visited on May 9, 2020).
  46. Anil Satyanarayana, Indian Social Media Users Risk Losing Online Anonymity amid Controversial Law,” Notebook Check, February 13, 2020, available at: https://www.notebookcheck.net/Indian-social-media-users-risk-losing-online-anonymity-amid-controversial-law.453831.0.html (Last visited on May 10, 2020).
  47. Supra note 32.
  48. Supra note 18.
  49. Right to Online Anonymity, June 2015, available at: https://www.article19.org/data/files/medialibrary/38006/Anonymity_and_encryption_report_A5_final-web.pdf (Last visited on May 10, 2020).

Written By: Dr. Dipankar Debnath, Assistant Professor-in-Law, Department of Law, University of North Bengal, also available at [email protected]

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