Sulagna Talukdar
Shyambazar Law College
Abstract
Social media has become an essential part of peoples life in these times. It primarily consists of mobile based tools for sharing and discussing information. It not only blends technology, social interaction and telecommunications and provides a platform to communicate through films, music, pictures and words but also have accommodated a space for people to freely express there opinions. The Social media provides the users with freedom to post anything on the platform and to express the opinion freely guaranteed by Article 19(1)(a) of Indian Constitution. However, it is also been progressively used for unlawful acts. The existing legislations in India is neither appropriate nor adequate to address this issue. Hence, it is the need of the hour to frame appropriate social media regulations. The regulations imposed should be in such a manner that it do not be a hindrance to the citizen’s Right to Freedom of Speech and Expression. The intersection of Social Media and freedom of speech raises important legal considerations. This paper deals with Media regulation with reference to the Indian Constitution and explores the legal boundaries of Freedom of Speech and Expression on social media. This paper aims to study the laws, cases, policies, and regulatory construction that manage social media in legal systems in order to inspect the potential implications for India. This article ends with a handful of creative suggestions to give an address to this burning issue.
Keywords: Social media, Speech and Expression, Laws related to social media, Fake news, Information Technology, Restriction
Introduction
Definition
There is a famous saying by the Greek Philosopher Aristotle “Humans beings are social animals, they need to interact with other animals to satisfy their needs”. People always want to connect to the society in some way or the other. Social media serves the way to communicate by sharing and consuming information virtually making it the preferred mode of communication daily. It has gained momentum globally because of its better features, immediacy, usability, frequency, permanence and access. It is non-identical to the conventional media i.e. Television, newspaper, magazine, print media and radio where information is shared and we become the consumer of the information. The Social media is a platform that holds space for the consumers to share their views and opinions. However it has been increasingly used for illegal acts.
A communal disruption took place in Baduria, in the state of West Bengal is a remainder of how social media acts as a provocaor for social disharmony. The riot on July 2017 was a result of an “irreverent” post on Facebook by a 17 year old boy which led to the death of one and 25 people were injured, including 20 policeman .The incandescent mob torched around 12 police vehicles, plundered and ransacked a number of houses in the area.[1]
Hence, it is an immediate need to make a balance between the two. Enacting well framed laws without hampering the Freedom of Speech and Expression is the need of hour.
Background
It was 15th of August, 1995, the Internet was first launched for the first time in India By Videsh Sanchar Nigam Limited (VSNL).Today it has been possible for us to shift ourselves from the bulky desktops to androids in our palm only because of this emergence of Internet. Initially, it was launched only for Educational Research Network (ERNET). Chennai, Mumbai, Kolkata, Delhi were the places where the Internet was launched for the first time. To provide an unambiguous environment in telecommunications Telecom Regulatory Authority was launched in 1997. The emergence of Reliance Jio had initially provided people with free Internet services and later at much cheaper rates. New Media has taken its formation from the Print Media but its target audience is different from that of Print media. It has enabled people to share there thoughts on different websites of Social media platforms. Internet has transformed every aspect of Traditional Media.
Types of Media
Social Media is a two way communicated platform through which information and entertainment reach the targeted audience and the audience also get a chance to share their views (Vikram Bhargava and Vasudha Luniya, 2021)[2]. Andreas Kalpan and Michael Haenlien define social media as “a group of internet based applications that build on the ideological and technological foundations of web 2.0, and allow the creation and exchange of user-generated content[3]. Web 2.0 refers to the internet platforms that permits the reciprocal participation by the users. Media is simply a message delivery system just like a vehicle to carry the information to the targeted public. Media is broadly classified into four categories:
*Press Media
*Broadcast Media
*Internet
*Out Of Home Media
Print Media consists of newspaper which is one of the prime sources of information for a jillion of readers. It allows prompt delivery of detailed coverage of news with riveting features for readers. In more recent years, Print Media is perceptible to be used with desktop publishing software and electronic book reading technology, such as the Amazon kindles. Television, Radio, Films/Movies, Video Games all this falls under Broadcast Media which covers anything which is broadcasted to a vast range of audience. Outdoor Media gives rise to considerable reach and frequency at low cost level. It includes bill boards, advertisements, etc. Internet is the rapidly growing media among all and offers limitless opportunities. Being in the public domain, the use of the Internet completely depends upon how a user desires to utilize it.
India is the most populous country with the second largest number of internet users globally having the most attractive and competitive Internet market. On an average there are about 500 million social media users in India on a monthly basis. Whatsapp is the chart-topping social media platform used by about 530 million of users, followed by Facebook with 450 million of customers, Instagram with 210 million users, YouTube with 410 million of users, Twitter having 175 million users subsequently as there are many users who have subscribed to variety of platforms. The Press Council of India a self-regulating statutory body and the News Broadcasting Standards Authority a self-regulatory organization issues guidelines and restricts the flow of news for ameliorating the standards of newspaper and news agencies in India. The conventional media gets controlled by these statutory bodies. As a result of heavy flow of information data to a great degree remains unregulated in unconventional media. The unregulated media can pose threat to India as a responsible democratic nation. The issues created by the Social Media Platform should be identified to overcome the challenges. There should be establishment of certain authorities who are dedicated to the same cause. Technology can be made a bigger part of Indian Economy only if the good aspects are harnessed out of it. Some private actors in order to publicize their action uses the media to create riots and lynching. The existing laws and the institutions should be modernized in order to prevent such chaos in Social Media.
Research Methodology
This paper is based on secondary sources for the deep examination of the Regulation of Social media platform along with the constitutional provisions. It is of descriptive nature. Secondary sources of information like journals, websites, and newspapers have been used for this research.
Freedom of Speech and Expression
Personal Liberty is the most important of all the Fundamental Rights. Article 19 to 22 of the Indian Constitution are the backbone of the chapter on Fundamental Rights. The foremost among this is the right to speech and expression, which is under Article 19(1)(a) which states every citizen is entitled to have the right to freedom of Speech and Expression. But this right is subject to restriction imposed under Article 19(2) which empowers the State to put ‘reasonable’ ‘restrictions’ on required grounds.
Freedom of Speech and Expression allows one to express ones ideas freely through words, pictures, printing, writing, theatre or any other mode. It further includes expression of views by communicable medium or visible representation like signs or gestures. Communcable Media includes Social Media where people express there views. Freedom of Speech and expression is an internationally recognized right and Article 19 of UDHR states that everyone has the right to freedom of Speech and expression, this right includes freedom to hold opinions and receive information without any interference.
Right to Access Internet
Social Media has become a vital communication tool in recent times. It plays a major role by connecting people globally thereby creating a sense of solidarity. Internet allows individual to exercise their freedom of speech and expression and exchange information and ideas. The UN Special Rapporteur on the promotion and protection of the right to freedom of speech and expression in the report, which was submitted before the Human Rights Council, stated that the internet has become a key means by which individuals can exercise their right to freedom and expression and hence, internet access is a human right.[4]
Recent Judgements:
In Faheena Shirin RK v. State of Kerala & Ors,[5] the High Court has acknowledged the fact that mobile phones and access through it are a part of the day to day life. The court looked at the resolutions embraced by the UNHRC and the General Assembly which ambiguously point to the fact that how internet access plays a key role in education and accessing information . The court took the field of vision that the Right to access the internet has been read into the fundamental right to life and liberty, as well as privacy under Article 21 of the Indian Constitution. The court further added that it amout for a crucial part of the framework of Freedom of Speech and Expression.
In Anuradha Basin v. Union of India, [6] the Supreme Court was of the opinion that Freedom of Speech and Expression through the internet is one of the integral parts of Article 19(1)(a). It also ruled that an undefined restriction of internet services would be against the law and orders for internet shutdown must please the tests of proportionality.
Thus, we can come to an end that freedom of speech and expression is accepted as a fundamental right in whatever medium it avail oneself of under the Constitution of India and international declarations. And taking into consideration the increasing use of internet and social media as a means of making use of this right, access to this medium has also been accepted as a fundamental human right.
Regulation
The content is mostly unregulated / self-regulated in India which means media houses are free to decide what to show and what not through respective platforms. The freedom provided is not itself a problem but its misuse by the users causes the problem. One is free to post anything without even realizing that the post can harm the sentiments of other people. Depending upon the nature of the content it might harm others feeling and the user may remain ignorant about the problem it may give rise to. There are about 4.8 billion Social media users globally and around 80 million active social Media users in India on a monthly basis. Fake news arising out of AI tools gets shared and posted on such platforms Inflammatory content gives rise to riots and causes harm to public order with incidents of Public outrage. In 2020, during a Delhi riot several videos were posted and went viral. The posts were communal in nature and seemed to target a particular section of the society. The contents in the post were infuriating enough to start a riot and cause disharmony in the society. A Facebook report stated that there was 300 percent rise in the amount of inflammatory content shared before the Delhi riots. Facebook was found as a complicit in riots by Delhi’s Assembly Committee as it failed to take actions on time. Such incidents have become very common nowadays due to lack of a proper regulatory body for the purpose of regulating the content which gets posted online. The internal bodies which are present often end up doing their task inefficiently. To prevent such mishappenings government should make regulatory bodies in order to avoid such happenings in the forthcoming days. (Roy,2020)[7]
Pornography and Obscenity has become burning threats that social media has posed upon its users. In order to prevent obscenity in Indian Movies the government has put the Censor board to put in restrictions but these restrictions on the other side also causes jurisdictional issues. Pornography is against Morals and Public Decency as they are intended for the purpose of sexual arousal. Identity Threats contains specific websites which generates revenue by targeting advertising. In worse cases it can be seen scammers to take hold of the social media accounts to distribute attacks and malware to other targets. There are even jurisdictional issues in relation with the Defamation which is a crime under sec 499 of IPC through social media. The most common examples are the fake accounts created using someone else’s pictures and personal details and we usually come across this on Social Media.
Restrictions that are imposed on Freedom of Speech and Expression
The Freedom of Speech and Expression is not an unconditional license giving immunity from every possible use of language and prevents punishment for those who abuse others from using this freedom. It is not an absolute right government of India is allowed to frame laws and impose restrictions on it.
Article 19[3] of the International Covent on Civil and Political Rights [ICCPR] imposes restriction on these grounds:
- Provided by Law
- Necessary for respect of others, for the protection of public order, national security, public health or morals
As per Article 19[2] of the Indian Constitution, restrictions on the freedom of speech and expression can be imposed on these grounds:
- Sovereignty and integrity of India
- Security of the State
- Defamation
- Friendly relations with foreign countries
- Public order
- Contempt of court
- Incitement of an offence
- Decency or morality
Legislations and the relevant provisions in India on violating Social Media
Information Technology Act – 2000[8]
a)Under Chapter XI of the Act, Sections 65, 66, 66A, 66C, 66D, 66E, 66F, 67, 67A and 67B 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 personation using compute resource, violation of privacy, cyber terrorism, Publishing or transmitting obscene material in electronic form, material containing 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 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.
- 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.
- 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
- 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:
• He observes due diligence and other guidelines prescribed by the Central Government While discharging his duties.
• 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.
(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 of the Government to be 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 and timely amendments to give effect to various provisions of this Act, that includes The Information Technology (Procedure and safeguards of interception, Monitoring and Decryption of Information)Rules – 2009, The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public)Rules – 2009, The Information Technology (Procedure and Safeguard for Monitoring And Collecting Traffic Data for Information)Rules – 2009, The Information Technology (Intermediaries Guidelines) Rules – 2011, The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules – 2011. The Information Technology Act was also amended in 2008, 2015, 2018 and 2020 to bring about adequate changes. On 29th June 2020, the Indian Government banned 59 Chinese mobile apps and on 24th November 2020, another 43 Chinese mobile apps were banned supported by section 69A of IT Act and citing national security interests. This move of Indian Government has been criticized for possibly being in conflict with Article 19(1)(a) of the Constitution of India as well as with WTO agreements.[9]
Section 66 A of Information Technology Act, 2000
Of all these provisions, Section 66A has been a matter of widespread discussions in recent times. Section 66A of Information Technology Act was inserted by the Information Technology (Amendment ) Act of 2008 which provides punishment for sending offensive messages through communication channels 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, 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.
Explanation: For the purposes of this section, terms “electronic mail” and “electronic mail message” means an information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
Under Section 66A, restrictions have been placed on freedom of speech and expression on several other grounds, apart from those mentioned in the constitution. There are several oddities in the provision, which are in dispute with the free speech requirements. Words like “gross offensive”, “menacing character”, “annoyance”, “danger”, obstruction”, “insult” and “injury” do not have any precise definition.
Several incidents of misuse of this provision was reported and attracted public attention across the country. In September 2012, Aseem Trivadi a freelance cartoonist was arrested under Section 66A of the IT Act and other Sections under IPC and Prevention of insults to National Honour Act, 1971 for widespread corruption in India through cartoons which were offensive.[10] In the same year, two Air India employees were arrested by the Mumbai Police for posting content on Facebook that was against a trade union leader and some politicians were in custody for 12 days.[11]
The Present Situation
Social Media is playing a unique role in the functioning of democracies all the over the world. Citizens get a chance to unite despite territorial limitations. Social media campaigns have bring about many positive changes in Society. A modern example of fruitful use of freedom of speech and expression in social media can be stated from Kerala. Mohammed a one and a half year old child was suffering from the rare disease of Spinal Muscular Atrophy (SMA)[12]. The curative for this disease is a drug named Zolgensma which costs 18 Crore rupees. A massive campaign took place via social media to save the life of the child and a total sum of 46 crore was collected within a week. Social Media played a vital role in the time of natural calamities. Social Media Campaigns also help in bringing out fraudulent practices in society and find ways to curb them. In modern times, Social Media has become a place where people with similar mind-set can come together and people can comfortably use their Freedom of Speech and Expression.
It is true that social media is a platform to vocalize ones opinions and thoughts on any branch of topic. There have been examples when social media has been lauded for playing a major role in overthrowing oppressive governments or bringing activists together, for various social issues. However, if the idea of or content posted and disseminated is capable of igniting ill feelings and violence among people, it becomes exploitation of the freedom of speech and expression rather than exercising it. In such cases, social media does not actually play the role of a liberator as it ought to, but instead, causes public menace. India which is a combination of tons of languages, traditions, and varied religious faiths thereupon a small spark can be treacherous if it is left unattended especially in case of social media. Therefore, Government should to censor the contents on Social Media.
Several incidents of stalking, hacking, bullying, incitement of crimes, harassment, abuse and many more are committed through social media on a daily basis. Many a time rumours are spread targeting a person which is itself a negative trend in social media. Culprits often use the comment section to abuse people and protect themselves under the tag of Freedom of speech and expression. Social Media posts also trigger mob lynching and communal violence in numerous parts of the country. Venomous influencers do not refrain from spreading fake news, racism, misogynism and stereotypes in the society. Hence, it is needed to formulate social media regulations without impeding the basic right of Freedom of Speech and Expression.
Conclusion
Social Media has been increasing used for felonious purposes and this made it crucial to manage the social media platforms. The regulations should be such that it does not commit a breach of people’s right. Social Media is a dominant means of exercising one’s freedom of speech and expression. Government and the social media users should work conjointly with combined effort to develop the social media culture of India with utmost appropriateness.
The current legislations of India which are surviving are not appropriate enough to suppress the issues that are on-going. An alternative Section for Section 66A of IT Act is an absolute necessity. There are many practical troubles in framing Social Media regulations in a vast and diverse country like India. Inspiration can be taken from successful regulatory models of other nations and the same can be incorporated for the better development of the country. Recommendations should be invited from the citizens. Government should form a committee which includes experts from the field, to look into the fraudulent use of social media and put forward a suitable way how it can be regulated without any further turmoil in the society.
[1] Madhuparna Das, Social Media Posts Trigger Seven Communal Riots in a Month in West Bengal, The Economic Times,( 8 July, 2017), https://economictimes.indiatimes.com/news/politics-and-nation/social-media-posts-trigger-seven-communal-riots-in-a-month-in-west-bengal/articleshow/59496771.cms?from=mdr
[2] Vikram Bhargava and Vasundha Luniya, How India regulates Social Media and the OTT Platforms – Information Technology (Intermediary Guidelines And Digital Media Ethics Code)Rules, 2021, Mondaq, (May 25, 2021), https://www.mondaq.com/india/social-media/1069974/how-india-regulates-social
[3]Andreas M. Kalpan & Michael Haenlein (2010), “Users of the World, Unite! The Challenges and Opportunities of Social Media”, Business Horizons, vol. 53, 2010, pp. Rohit 59-68, at 61.
[4] Report of the Special Rapporteur on Key Trends and Challenges to the Right of All Individuals to Seek, Receive and Impart Information and Ideas of All Kinds through the Internet,2011, UN General Assembly Doc.A/HRC/17/27. https://www.ohchr.org/en/special-procedures/sr-freedom-of-opinion-and-expression/annual-thematic-reports
[5] Faheema Shirin R.K v. State of Kerala and Ors, (2019)WP(C ) No.19716 of 2019(L)India
[6] Anuradha Basin v. Union of India,(2020)SCC Online SC 25
[7] Sourav Roy Barman, Delhi Assembly panel links riots to social media messages, The Indian Express, (September 1, 2020), https://indianexpress.com/article/cities/delhi/delhi-assembly-panel-links-riots-to-social-media-messages-6578101/
[8] India passed the Information Technology Act in 2000 in May 2000 in Pursuance of the UN General Assembly Resolution of 30th January 1997. This Resolution adopted the Model Law on Electric Commerce adopted by the United Nations Commission on International Trade Law. The information Technology Act, 2000 came into force on 17th October 2000 and has been substantially amended through the Information Technology (Amendment) Act, 2008. It got the Presidential assent on 5th February 2009 and came into force on 27th October 2009
[9] Aaron Kamath and Vivek Kathpalia, India Takes A Tough Stand On Neighbouring Apps, The National Law Review, (October 27, 2020), https://m.facebook.com/NatLawReview/photos/a.349778118996/10157756706198997/?type=3&_rdr
[10] Jason Burke, Indian Cartoonist Aseem Trivedi Jailed After Arrest on Sedition Charges, The Guardian, (September 10, 2012), https://www.theguardian.com/world/2012/sep/10/indian-cartoonist-jailed-sedition
[11] Saurabh Gupta, Arrested for Facebook posts, they Spent 12 Days in Jail, Lost their Air India Jobs, NDTV, (November 26, 2012), https://www.ndtv.com/mumbai-news/arrested-for-facebook-posts-they-spent-12-days-in-jail-lost-their-air-india-jobs-505559
[12] Couple Hopes to crowdfund Rs. 18 crores for Drug to Save Life their One- and- a- half -Year- Old Son, Kaumudi Online, (July 5, 2021), https://keralakaumudi.com/en/news/news.php?id=586774&u=couple-hopes-to-crowdfund-rs-18-crores-for-drug-to-save-life-of-their-one-and-a-half-year-old-son-586774