Social Media: Legal Implications in Freedom of Speech

Dr. M. Rabindranath*
Mr. Sujay Kapil**

Social media comprises primarily internet and mobile phone based tools for sharing and discussing information. It blends technology, telecommunications, and social interaction and provides a platform to communicate through words, pictures, films, and music. ( Guha, 2012) Social media comprises of web and mobile technologies which turn communication into interactive dialogue.

Internet and social media have emerged as crucial communications tools through which individuals can use their right of freedom of expression and exchange thoughts, information and ideas. The Arab Spring and the peoples uprising against the government in Pakistan are examples of how internet and social media have been instrumental in creating a movement of people around the world for change, justice, equity, accountability and democracy. In such movements, the internet and social media have played a key role by offering common people the facility to connect and exchange information instantly. Of course, the feedback mechanism offered by social media creates a level playing field for the source as well as receiver.

“Internet access is a human right.” (Anonymous, 2011), The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report says that New Media is a new realm of technology and communication in the 21st century. Barriers have been busted and new benchmarks created.

Social Media and Censorship

In the Cold War era there was an atmosphere of suspicion and hostility. Gate keeping of information was common. Another information imbalance was affected by the concentration of media in the hands of the developed western world. But things changed for the good with the advent of social media.

Technology savvy world with an increasing capacity for communicating, simplifying and storing information with amazing speed has put information at the core of development. (Vyas , 2008)

Social media has the power to reach the masses and distribute information, which in turn has resulted in everyone acting as a watchdog, scrutinizing the powerful and exposing mismanagement and corruption. (Vyas, 2008)

Internet has become the foundation of contemporary society due to its infinite potential and widespread reach. With spreading of information and opinion being a fundamental of social media, it has acquired a distinctive role in the functioning of democracies world over. Social media has led to unity of citizens breaking territorial boundaries.

The Arab Spring, the anti- government protests in Pakistan, the Anna movement in India are shining examples of how social media united people for a common cause and shook the corridors of power in their respective countries. Thus, social media is perceived as a threat by governments who are carefully trying to regulate it.

China is the leader in internet censorship. It has an elaborate mechanism in place to affect censorship known as “Great Firewall of China” and officially as “Golden Shield Project”. Blocking web pages with objectionable content is the regular mode of internet censorship. (Tandon, 2011)

Coming to India, according to the Freedom House’s report ‘Freedom on the Net, 2012’, India’s overall Internet Freedom Status is “Partly Free”. India has secured a score of 39 on a scale of 0 (most free) to 100 (least free), which places India at 20 out of the 35Social Media: Legal Implications in Freedom of Speech 47countries worldwide that were included in the report. (Freedom House, 2012)

On 12th March 2012, Reporters Without Borders published a report titled ‘Internet Enemies Report, 2012’ on the basis of the growing control over the net by government. (Reporters Without Borders, 2012)

The report contained a list of ‘Enemies of the Internet’ that restrict online access and harass their netizens; and a second list of ‘Countries under Surveillance’ for displaying a disturbing attitude towards the internet. The report puts India in the list of ‘Countries under Surveillance’. In its seventh transparency report, published on 27th April 2013, internet giant Google noted that the Indian government has nearly doubled its requests to Google for removal of content in the second half of 2012 as compared to the first six months. (Google Seventh Transparency Report, 2013)

The report further noted that between July and December 2012, Google had received more than 2,285 government requests to delete 24,149 pieces of information. In the first half of 2012, Google received 1,811 requests to remove 18,070 pieces of information. During the same six-month period, the Indian government- both by way of court orders and by way of requests from police- requested Google to disclose user information 2,319 times over 3,467 users/accounts.

Social Media and Indian Cyber Laws

Keeping in view the ever changing technological scenario and cyber space emerging as the new place for crimes, India passed the Information Technology Act 2000 in May 2000 in pursuance of the United Nations General Assembly Resolution A/RES/51/162 of 30th January 1997. This resolution adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. The Information Technology Act, 2000 came into force on 17th October 2000. Later, it was amended through the Information Technology (Amendment) Act, 2008.

Information Technology Act, 2000 (Ratan, 2011)

(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and67B contain punishments for computer related offences which can also be committed through social media viz. tampering with computer source code, committing computer related offences given under Section 43, sending offensive messages through communication services, identity theft, cheating by impersonation using computer, violation of privacy, cyber terrorism, publishing or transmitting obscene material in electronic form, material containing sexually explicit act in electronic form, material depicting children in sexually explicit act in electronic form, respectively.

(b) Section 69 of the Act grants power to the Central or a State government to issue directions for interception or monitoring or decryption of any information through any computer resource in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States, public order, for preventing incitement to commission of any cognizable offence, for investigation of any offence.

(c) Section 69A grants power to the Central government to issue directions to block public access of any information through any computer resource on similar grounds.

(d) Section 69B grants power to the Central government to issue directions to authorize any agency to monitor and collect traffic data or information through any computer resource for cyber security.

(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable for any third party information, data or communication link made available or hosted by him in the following cases-

  • His function is limited to providing access to a communication system over which such information is transmitted, stored or hosted.
  • He does not initiate, select the receiver and select or modify the information contained in the transmission.
  • He observes due diligence and other guidelines prescribed by the Central Government while discharging his duties.

However, an intermediary shall be liable in the following cases-

  • He has conspired, abetted, aided or induced by threats, promise or otherwise in the commission of the unlawful act.
  • He fails to expeditiously remove or disable access to the material which is being used to commit the unlawful act, upon receiving actual knowledge or on being notified by the government.

(f) If any intermediary fails to assist, comply with direction and intentionally contravenes provisions under Sections 69, 69A and 69B respectively, he shall be liable to punishment.

(g) Section 43A provides that where a body corporate possessing, dealing or handling any sensitive personal data or information in a computer resource owned, controlled or operated by it, is negligent in implementing and maintaining reasonable security practices and procedures thereby causing wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the affected person.

(h) Section 70B provides for an agency appointed by the Central government called the Indian Computer Emergency Response Team, which shall serve as the national agency for performing functions relating to cyber security.

The Central government has also enacted rules to give effect to various provisions of this Act which are as follows:

A. The Information Technology (Procedure and Safeguards of Interception, Monitoring and Decryption of Information) Rules, 2009

These rules are made by the government in exercise of its powers under Section 87(2) (y) with regard to the procedure and safeguards for monitoring and collecting traffic data or information under Section 69B (3).

Rule 3 provides that the interception or monitoring or decryption of information under Section 69 shall be carried out by an order issued by the competent authority. Rule 2(d) defines competent authority as the secretary in the Ministry of Home Affairs, in case of Central government and the secretary in charge of the Home Department, in case of a State government or Union Territory.

Rule 4 provides for an authorized agency of the government to carry out the functions.

Rule 10 requires the name and designation of the officer of the authorized agency to whom such information should be disclosed.

Rule 13 requires the intermediary to provide all facilities, co-operation and assistance for interception or monitoring or decryption of information.

B. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

These rules are made by the Central government in exercise of its powers under Section 87(2) (z) with regard to the procedure and safeguards for blocking for access by the public under Section 69A (2).

Rules 3, 4, 5, 6, 7 and 8 contain the regular method of sending request for blocking to the Nodal officer of concerned organization who shall examine it and forward it to the Designated Officer of the Central government who shall further examine it along with a committee and then their recommendation shall be sent to the Secretary, Department of IT for his approval, upon which the Designated Officer shall direct such blocking.

Rule 9 grants power to the Designated Officer to take a decision regarding blocking in cases of emergency where delay is unacceptable.

Rule 13 provides that every intermediary shall designate a person to receive and handle directions for blocking of information, who shall acknowledge receipt of the directions to the Designated Officer within two hours of receipt through acknowledgment letter or fax or email.

Rule 10 provides that the Designated Officer, on receipt of a court order directing blocking of any information, shall submit it to the Secretary, Department of Information and Technology and initiate action immediately.

C. The Information Technology (Procedure and Safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009

These rules are made under Section 87(2)(za) with regard to the procedure and safeguards for monitoring and collecting traffic data or information under Section 69B (3).

Rule 3 provides that directions for monitoring and collection of traffic data or information under Section 69B (3) shall be issued by an order made by the competent authority.

Rule 2(d) defines competent authority as the secretary to the government of India in the Department of Information Technology under the Ministry of Communications and Information Technology.

Rule 3 further provides that the competent authority may issue directions for monitoring for purposes related to cyber security.

Rule 4 provides that the competent authority may authorize any agency of the government for monitoring and collection of traffic or information who shall designate a nodal officer to send requisition conveying direction under Rule 3 to the Designated Officer of the intermediary.

D. The Information Technology (Intermediaries Guidelines) Rules, 2011

These rules are made under Section 87(2) (z g) with regard to the guidelines to be observed by the intermediaries under Section 79(2).

Section 2(w) of the Information Technology Act, 2000 defines “intermediary” with respect to any particular electronic records as any person who on behalf of another person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service, network service, internet service, web- hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.

Rule 3 makes it mandatory for the intermediary to inform the users by clearly sating that under the rules and regulations, privacy policy and user agreement, which are published on the website, they are not to host, display, upload, modify, publish, transmit, update or share any information that is objectionable under Rule 3(2).

Once a violation under Rule 3(2) is noticed by or is brought to actual knowledge of any intermediary by an affected person in writing or through e-mail, Rule 3(4) requires the intermediary to remove the objectionable content within 36 hours.

E. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

These rules are made under Section 87(2) (ob) read with Section 43A with regard to the reasonable security practices and procedures and sensitive personal data or information under Section 43A.

Rule 6 provides that the disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information. However, the information can be shared with government agencies, without obtaining prior consent, for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, prosecution, and punishment of offences.

Section 66A of the Information Technology Act, 2000

Section 66A of the Information Technology Act, 2000 inserted vide Information Technology (Amendment) Act, 2008 provides punishment for sending offensive messages through communication service, etc. and states:

Any person who sends, by means of a computer resource or a communication device-

(a) any information that is grossly offensive or has menacing character;

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

There are several anomalies in the provision which are inconsistent with free speech requirements. Words like “grossly offensive”, “menacing character”, “annoyance”, “danger”, “obstruction”, “insult” and “injury” do not have any precise definition. A prominent question that has been left unanswered is whether these words are to be construed with regard to the sensibilities of the particular person the words are addressed to or as per that of a reasonable logic and sensibility. If the will of an oppressive government prevails, innocent communication through e-mail could be accused of having violated the law. There has been a widespread misuse of this provision. Some examples are:

  • In April 2012, Ambikesh Mahapatra, a professor of Chemistry in Jadavpur University in West Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on social networking sites.
  • In May 2012, two Air India employees were arrested by the Mumbai Police for putting up on Facebook and Orkut content that was against a trade union leader and some politicians. They were in custody for 12 days.
  • In November 2012, Shaheen Dhada was arrested for questioning the shutdown of Mumbai following the death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was “liked” and shared by her friend, Renu, who was also arrested by the Thane Police in Maharashtra.

Chief Justice Altamas Kabir and Justice J. Chelameswar, noted that the “wording of Section 66A is not satisfactory. It is made very wide and can apply to all kinds of comments.” (Shreya Singhal v. Union of India, 2012)

In order to thwart the blatant misuse of Section 66A, Ministry of Communications and Information Technology, the government of India has issued advisory to State/UT governments on implementation of Section 66A. They have been advised that with regard to the arrest of any person in connection with a complaint registered under Section 66A, the concerned officer of a police station under the state’s jurisdiction may arrest any person only with prior approval of such arrest from an officer not below the rank of the Deputy Commissioner of Police or Superintendent of police at the district level, as the case may be. (Anonymous, 2013)

Suggestions for Better Social Media Usage

The world has truly become a “Global Village” with the emergence of social media. On one hand it is a way of exercising freedom of speech and expression, on the other hand, it is also being increasingly used for illegal acts which has prompted the governments to censor social media. But there are legitimate fears of abuse of civil rights of people as a predictable consequence of censorship.

Regulation of social media is desirable, not its censorship. But the present cyber laws of India leave much to be desired. The existing IT laws shows that there is unaccountable and massive control in the hands of the government while dealing with issues of safety and security in the cyber space. Even then, it is not strong to check the abuse of social media. Recently the Indian government expressed its inability to regulate pornographic sites on the internet. Hence, a specific legislation is desirable to regulate social media.

But any attempt to suppress the voice of the people through legislative actions is intolerable and unhealthy in a democracy. Thus the need of the hour is to create an autonomous regulatory body comprising of eminent experts from the field of law, technology, social service along with members of legislature to monitor issues related to social media.

References:

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