The right to meme: Walking on legal egg shells?

Does the fundamental right to free speech include the right to offend? In the context of memes that often go viral on the social media, where there is neither editorial nor self regulation but only broad and inadequate ‘community standards’, this question calls for legal dissection. The recent meme on West Bengal Chief Minister Mamata Banerjee by a BJP functionary who was subsequently arrested, may have revived memories of the Mumbai police action against two college girls for a Facebook post and ‘like’ that was critical of the shutdown for Shiv Sena Chief Bal Thackeray’s funeral procession. The West Bengal case was seen as an overreaction, with the Supreme Court ordering her release but with an initial direction to tender an apology.

If news reports are correct, the West Bengal Police invoked Sections 500 of the Indian Penal Code (IPC) which is criminal defamation, along with Sections 66A and 67A of the Information Technology (IT) Act against Priyanka Sharma who shared a morphed photograph that supplanted Mamata Didi’s face on an outlandish outfit of actor Priyanka Chopra, that was already the subject of ridicule on the social media. A similar meme on the costume had a morphed picture of sandalwood smuggler Veerappan’s handle bar moustache. It is not clear if the BJP worker had created the meme herself or shared it. Either way, did it constitute a criminal offence?

I’m surprised that Section 66A was invoked as it was struck down by the Supreme Court in 2015 on the ground of "vagueness" and that its enforcement "would really be an insidious form of censorship" and have "a chilling effect on the freedom of speech and expression." Section 67A deals with the transmission of material of a "sexually explicit act." This is completely inapplicable here. Even Section 67 of the IT Act, which is a replica of Section 292 of the IPC, penalises the transmission of obscene material in electronic form. The key ingredient here is that the material must be "lascivious" or "appeal to the prurient interest" and "tend to deprave and corrupt persons".

It is a known fact that the West Bengal Chief Minister’s attire has always been a simple sari, traditionally draped. Mocking a woman’s dress is not in good taste and in this case, blatantly misleading and mischievous. Poking fun at a political leader may cause annoyance to those targetted and it may also be wholly intentional but I am unable to see how it attracts any of the cited ingredients in the IT Act. As for criminal defamation, I’m not sure how the meme, however frivolous and disrespectful, "harms the reputation" of the victim or  "directly or indirectly lowers the moral and intellectual character of the person in the estimation of others" as laid down in the defining Section 499 IPC. The West Bengal leader’s most dignified dress sense is common knowledge and a silly meme is not going to cause any damage. If anything, the police action has only given the accused person publicity. Often, cases of criminal defamation end with the accused apologising to the complainant. With all due respect, would the initial insistence on an apology as a condition for bail tantamount to conviction?

An election campaign is bound to have fireworks. Decades before this social media age, a 5 judge bench of the Supreme Court in Kultar Singh Vs Mukhtiar Singh had observed that a "document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner.  When election meetings are held, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors. and the extravagance of expression in attacking one another, are all a, part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made. It would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter."

Reputations can be sullied but the law has a broad protective sweep. Free speech itself guaranteed under Article 19(1)(a) of the Constitution is not unbridled and comes with ‘reasonable restrictions’ under Art 19(2) such as public order, decency, morality, contempt of court, defamation or incitement to an offence. There are other provisions like Section 125 of the Representation of People Act against promoting enmity or hatred on religious, caste, community or linguistic grounds and Section 123 (3A) if it is committed by a candidate or agent. Hate speeches are covered under Section 153 A of the IPC.

Memes must actually be seen in the context of intellectual property law. Do they constitute a violation of the Copyright or Trademarks Act, as many of them are derivative works? Do parodies or satire fall within the ‘fair use’ dictum as a commentary on the original work? How does one zero in on the actual creator of a meme as opposed to a person just sharing it? If the essence of most memes is conveyed through images, does the copyright, even if unregistered, vest with the owners of the photographs? On the social media, aside of goods and services, would memes of registered trademarks, owing to their modification, attract Section 29 of the statute for infringement? These issues are bound to crop up in litigation.

For now, humour, as long as it does not have an indecent or obscene or inflammatory ring to it, must not be criminalised. Let the mind be without fear.

 (The writer is an advocate at theMadras high court, columnist & author)