CHALLENGES BEFORE SOCIAL MEDIA
Author: Mr. Badal Khurana, JIMS School of Law
The platform of Social Media has been a rage in recent times. The biggest gift humankind has received from scientific evolution is information technology which has led to a fast forward mode by introducing unprecedented speed in information & communication via social media. It had an impact on political dynamics on a global scale by enabling users to express themselves publicly in ways previously unavailable. The shift in communicative power has shown greater efforts to restrict the use of the internet for information and communication on political, moral, cultural, security and many other grounds. This article heavily focuses on the legal regulatory regime, which constitutes the bulk of regulation in India & other legal systems. It identifies the various problems generated by social media. The article also critically analyzes the relevant laws and functioning of regulatory authorities in addressing these problems.
- PROBLEMS REFLECTED BY SOCIAL MEDIA
The basic structure of social media platforms provides a unique opportunity of interaction to the common masses, which have resulted in great problems to the society. It showed that while social media may unite those who challenge a system where the people’s voice is not heard, they can fragment a society where every voice is heard. With its expansion, social media has generated a lot of complicated social and legal regulatory issues. The issues will be dealt with further in the article one by one.
Sexual expressions which constitute “obscenity” or “pornography” are major concern by the government in both the offline and online world. Social media in particular with its speedy circulation of obscene and pornographic materials has made regulation more challenging. Various social media websites like YouTube, Instagram, Snapchat and Facebook are loaded with these materials, causing public authorities to work more hard to stop this. The difficulty in regulation was well evident when Govt. of India filed a counter before the Supreme Court showing its inability to prevent pornographic and obscene materials on the internet and social media pages.
Since there is no specific provision in any statute that directly deals with pornography, it has been brought within the purview of Sec. 292 which deals with obscenity in the Indian Penal Code, 1860 (‘IPC’). The section imposes criminal liability for sale, distribution, etc. of obscene material.
Although, Indian law does not make watching pornography illegal but sharing or disseminating obscene content has been made punishable under Sec. 67 of the Information Technology Act. The Act provides a penalty of imprisonment for up to three years for publishing and transmitting obscene content. There are stricter rules against child pornography.
The impact of obscenity laws in India can be seen in the unfettered discretion exercised by the Government to ban films, books, and other materials on the pretext of immoral or objectionable content in the offline world. The approach of the govt. in dealing with obscene contents on the internet cannot be equated with the offline world. The transnational character of the internet provides limited scope and jurisdiction to the govt. authorities in regulation.
Though there can be no difference of opinion on a point that a state should control the possession and dissemination of obscene and indecent material in its territory, there is no consensus on what sort of content should be considered as obscene or indecent. The finest disagreements lie in the field of nudity and depictions of sexuality. The Indian state is facing a dilemma on how to prevent pornographic materials on the internet which is transnational in character and possessing powers to defy state framed rules and regulations.
Some speech can be understood as “antisocial oratory that is intended to encourage persecution against people because of their race, color, religion, ethnic group, or nationality, and has a substantial likelihood of causing harm”.
In India, hate speeches do not find a place under Article 19 (2) of the Constitution and therefore, do not constitute a specific exception to the freedom of speech and expression under Article 19 (1) (a). However, they are read under other specified exceptions under Article 19 (2) such as ‘sovereignty and integrity of India’, ‘security of the State’, ‘incitement to the offence ’, ‘defamation’ etc.
Some of the provisions which will apply in hate speech over social media platforms are-
- The Indian Penal Code, 1860 contains provisions that prohibit hate propaganda.
Section 153-A penalizes the promotion of class hatred. Section 295-A penalizes insults to religion and to religious beliefs. Section 505 makes it a penal offence to incite any class or community against another.
- The Information Technology Act, 2000 contains several provisions that will apply to mitigate hate campaigns on the internet.
Removing hatred materials on social media platforms is a difficult task. It is easy for one to upload but very difficult for others to take it down.
Intellectual Property Rights Issues
- Trademark infringement and dilution
On social media platforms, users discuss, create content and interact with brands more than ever before. Most often it results in harmful information about goods/services which injure a brand mark’s strength/reputation/goodwill. There are very few measures to prevent an individual or entity from adopting a user name or sub-domain name that incorporates a third party’s registered trademark. Apart from it, improper comparative advertising can result in a trademark misuse on social media platforms. For instance
- False/misleading advertising
- Competitors may use somebody’s trademark to compare goods/services to divert sales
Research shows that both Twitter and Facebook have trademark policies but they are not well-drafted when it comes to dealing with trademark infringement issues and the practical enforcement of those policies.
- Copyright infringement
Copyright is a right given by the law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, copyright is a bundle of rights that includes rights of reproduction, communication to the public, adaptation, and translation of the work. The law permits that; there can be slight variations in the composition of the rights, depending on the work.
The social media has seen an increase in copyright infringement. The multimedia world of the social web is littered with copyright materials, which may or may not be reproduced with the consent of the rights owners.
Users infringing the rights of copyright owners are liable to be sued for infringement. But there are two challenges in this respect-
- Identifying ownership of User Generated Content
- Identifying liability
- Trade secret disclosure
Social media represents a new frontier with substantial implications. Employers often encourage their sales personnel to use LinkedIn or other social media platforms to establish and strengthen relationships with actual and potential customers.
A strong issue in the social media context is defamation. Generally speaking, a defamatory statement is a false and disparaging statement about someone that causes injury to the reputation of the person to whom it refers and exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided. A lot of facts get distorted and many people along with their families are cyberbullied through fake profiles and accounts, endorsed and retweeted by many people. The fake accounts which provide such false information and distorting comments about somebody get also printed in various credible publications to build a narrative about someone which leads to a crime. A lot of heinous social media campaigns are run against people to defame them and ridicule their reputations.
Section 499 of the Indian Penal Code makes defamations a punishable offence.
The section requires three essentials:
- Making or publishing any imputation concerning any person
- Such imputation must have been made by-
- words, either spoken or intended to be read; or
- signs; or
- visible representations.
- Such imputation was made with the intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning to whom it is made.
For the offence of defamation publication of defamatory matter is essential. In other words, the defamatory matter must be communicated to some person other than the person to whom it concerns.
Harassment through Cyber Bullying
Cyberbullying allows the offender to conceal his identity behind a computer. When someone on the internet, through their cell phones or any other device, used in cruelty, send or post text or any image intended solely to hurt or embarrass another person, leads to harassment. Cyber Bullying is one such act that has become one of the most damaging and ridiculing activities which have caused injury to many.
Through all these problems and challenges posed by the social media spectrum, one thing is absolutely confirmed that the fundamental right of speech and expression can’t be taken away from people due to constitutional needs. However, the advancement of technologies particularly in the social media arena has added fuel to the fire because it has provided common masses to have their say on a public platform. After looking at the bigger picture, one thing which must be ensured as a constitutional obligation of the state is the conditions in which these rights can be meaningfully and effectively enjoyed by all citizens and prevent its monopoly or dominance by a few.
- GOVERNING LAWS
Although there is not any specific legislation in India which deals with social media, there is a range of laws that will be applicable. The governing statutes or laws which address these problems posed by the social media arena are:
- The Information Technology Act, 2000
Section 66A of the IT Act has been widely for social media offences. However, this provision has been held unconstitutional by the Supreme Court in a later judgment.
Section 66C of the IT Act provides punishment for identity theft.
Section 66D provides punishment for cheating by personation by using computer resource.
Section 66E is of the utmost importance. Privacy violation of a person without his consent has been made punishable by virtue of this provision.
Obscenity in electronic form which is very much prevalent on social media websites will come under Section 67 of the Act, which makes it punishable to transmit or publish any obscene material.
Section 67A provides punishment for publishing or transmitting of material containing the sexually explicit act, etc. in electronic form.
- The Information Technology (Intermediaries Guidelines) Rules, 2011
The Intermediaries Guidelines Rules, 2011, which got enacted under Section 79 of the IT Act attempts to make it clear that intermediaries must follow in order to be exempted from liability in connection with services rendered by them.
The rules impose the responsibility of blocking particular kinds of content upon the intermediaries. Rule 3 makes it mandatory for the intermediaries to inform the users to not to host, display, upload, modify, publish, transmit, update or share any information which is objectionable under Rule 3(2). The information not to publish obscene content should be mentioned on the websites. If 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.
- Indian Penal Code, 1860
Section 153-A penalizes the promotion of class hatred.
Section 295-A penalizes insults to religion and to religious beliefs
Section 505 makes it a penal offence to incite any class or community against another.
Section 499 applies for defamation.
Section 292 applies for obscenity.
We can conclusively say that the problems posed by social media are mostly individualistic, except hate speech and pornography which affects society at large. In the present scenario, these issues are being addressed with a different set of laws, for example, IP Issues are governed by the Trade Mark Act, Copyright Act, etc. and rest are governed by other statutes. But in relation to those problems which are being governed by the Information Technology Act, it would be of utmost importance to redraft the IT laws including regulations.
Rights, duties, and responsibilities of social media users should also broadly focus on ensuring peace and harmony in society. And there is a strict need for an international body to interfere and govern social media behavior.
 Kamlesh Vaswani v. Union of India [W.P(C). No. 177 of 2013 (Supreme Court)]