Social Media: A Revolutionary Tool

Namita Verma

Abstract

There is no doubt that we are living in the age of social media, where information is just a button press away. We are controlled by the information all around us. Social media is one of the biggest elements that we live with and we cannot ignore it.

Social media basically means any human communication sharing information on internet that is happening through means of computer, PC, mobile or tablets. Nowadays, social media has become the largest means of communication and is gaining popularity very fast. There are various websites and apps like Facebook, Twitter, Instagram, YouTube, Orkut, LinkedIn, and My Space that make it possible. Social media enables us to share ideas, information, opinion, feelings to millions of others those are mostly unknown to each other. No doubt, Social media has become a powerful means of exercising one’s right to freedom of speech and expression but at the same time, it has its limits and restrictions. The Right does not give freedom to anybody to write or say anything they wish to. It is not an absolute freedom which anybody can claim to enjoy. One has to face legal problems which are generated by social media, ranging from privacy of users, pornography and obscenity, intellectual property issues, menace to national security, hate speech by the users, identity theft and defamation, which result in civil and criminal cases. Although there is no specific legislation in India which deals with social media, there are a variety of laws that will be applicable. Each problem is addressed with a different set of laws. These laws were given dominant support by the Information Technology Act, enacted in 2000 to curb the violations posed by social media in India.

Introduction

We live in a time and age where information is just a button press away. We are controlled by the information all around us. That is, where social media comes into play. Social media is one of the biggest elements that we live with and cannot ignore it.

Social media basically means any human communication or sharing information on internet that occurs through the medium of computer, tablet, PC’s, smart phones. There are numerous websites and apps like Facebook, Orkut, Instagram, you Tube, My Space, LinkedIn that make it possible. Social media is now becoming one of the largest means of communication and is gaining popularity rapidly. Social media enable us to share news, views, ideas, contents, information etc. at a much faster speed.

Over the past few years, the popularity of social networking sites has increased immensely. In this age of internet, these social networking sites not only offer the scope of connecting but also offer the scope of getting updates at any possible hour of the day.[1]

Social media has revolutionised the way people communicate and socialize on the web. We live in a world where we are not only consumers of information but creators as well.

There is a lot of debate about the effect of social media on the society as a whole. For some, it is a boon where as others feel that it is a curse. There are both positive and negative sides of social networking sites. The basic objective of using the Social networking sites is online communication and interaction. No doubt that Social media has become powerful means of exercising ones right to freedom of speech and expression but at the same time it has its limits and restrictions. The Right does not give freedom to anybody to write or say anything they wish to. It is not an absolute freedom which anybody can claim to enjoy. One has to face legal problems which are generated by social media ranging from privacy of users, pornography and obscenity, intellectual property issues, menace to national security, hate speech by the users, identity theft and defamation, which result in civil and criminal cases.

Let us discuss the legal problems posed by the social media in detail.

Social Media and Identity Theft

Social media sites generate revenue with targeted advertising based on personal information. As such, they encourage registered users to provide as much information as possible. Many of the users normally post more than enough information about their personal and work lives. The identity thieves could easily collect that information in order to imitate the original profile that looks exactly the same to people who know the user. By creating a fake profile, the identity thief gets ample information about the user, his friends, and his relatives in order to harass the user. The actual user does not even know that a fake user is updating the account and posting things on behalf of him that are disgraceful. Some users are forced to delete their profiles on account of identity theft due to the embarrassment they face thereafter.

In India, Information Technology Act[2] provides punishment for Identity theft. According to Sec 66-C of the Act

Also Read  Constitution Commanded & Judiciary Ensured – Rule of Law

“whoever fraudulently or dishonestly make use of the Electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lac”

Social Media and Invasion of privacy

The concept of privacy is not new, with definitions and studies on the issue spanning the fields of philosophy, anthropology, law, psychology and management. As early as in the nineteenth century, Warren and Brandeis (1890) defined the term privacy as “the right to be left alone”. The entitlement to security of person is regarded as a fundamental human right, yet the scope and pervasiveness of digital technologies open up new areas of social vulnerability.[3]Social networking sites and associated privacy concern is one of the most debated topics nowadays, as participation in such sites has increased dramatically. Thus, it becomes very important for one to read the privacy policies and measures offered by these sites in order to have a safe online networking. In spite of privacy settings and measures offered by the sites, it can be dangerous to share personal information. For example, people like to share information of each and every moment on the social networking sites. It is even seen that people giving information like taking a break, going for a holiday etc. it is quite possible that it might lead to break-inns and robbery in their absence.

Social Media and Freedom of Speech and expression

Freedom of Speech and expression is broadly understood as the idea that every person has the natural right to freely express himself/herself through any media. India is one of such paradises on earth where you can speak your heart without any outside interference. Freedom of speech and expression is authorised to every person whether rich or poor, young or old. Every person holds a different opinion and a different way to express themselves. Being individuals, we all are different with different ideas, tastes and perceptions. Every person has the right to follow his thoughts or conscience and that is when we hate someone for expressing their opinions despite the fact that opinions are just opinions, never right or wrong.[4]

No doubt that Social media has become powerful means of expressing one’s right to freedom of Speech and expression but at the same time it has its limits and restrictions. The right does not give freedom to anybody to write or say anything they wish to. It is not an absolute freedom which anybody can claim as a matter of right. It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some curbs on the freedom for the maintenance of social order. According to Art 19(2), the state may make a law imposing restrictions on the exercise of the right to freedom of speech and expression in the interest of the security of the state, sovereignty and integrity of India, public order, decency and morality, defamation and Incitement to an offence. The freedom of speech and expression does not confer on the citizen the right to speak or publish without responsibility. It is not a license issued to an individual giving immunity to him to write or of say anything they wish to.[5]

Social media and Defamation

The power of the Social media steadily increases and the number of users has been put in a fast forward mode. A major issue in the social media context is defamation. In general parlance, defamation is any statement that can hurt an individual or company’s reputation. Social media makes it easier than ever to make a defamatory statement. Twitter, Facebook and blogging websites allow a person to publish any statement instantly, allowing thousands of people to read it. The reality is that online technology enables us to share and post our opinions instantly. That power can create a sense of false security as users mistakenly believe they have a right to their opinions with freedom of speech as protection but posting defamatory statements about an individual or business can blur the line between one person’s right to freedom of speech and another’s to not to have his or her reputation unfairly attacked.

The Indian Penal Code makes it a punishable offence[6]. The section requires three essentials:

  1. Making or publishing any imputation concerning any person.
  2. Such imputation must have been made by (a) words, either spoken or intended to be read, (b) signs, (c) visible representation.
  3. Such imputation was made with the intention of harming or with the 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. Publication of the defamatory statement takes place when the contents of the statement are seen or heard by the reader or the hearer. In the context of internet, the term publication includes dissemination, transmission and storage of information or data in electronic form.[7]An electronic publication could take place through the email, music downloads, audio files, digital photographs and so on. Section 499 of Indian Penal Code expressly provides that defamation could take place not only by words but also by signs or visible misrepresentation. This would mean that even dissemination of defamatory material through the SMS, MMS, photographs and videos or mobile phones would constitute an actionable claim. An online defamatory statement can be published anywhere in the world where there is access to internet. But it raises the issue as a suit would be maintainable in any jurisdiction in the world where the statement has been accessed. Hence, a defendant could be hauled to any jurisdiction where the statement is accessed notwithstanding where the defendant had posted the information. Hence, the plaintiff has a cause of action at the place of publication that is the place where the contents is read, heard or seen.

Also Read  Human Rights and Corruption: A Moral Strength or a Moral Decay

Hate Speech

Social networks serve as effective platforms in which users’ ideas can be spread in an easy and efficient manner. However, those ideas can be hateful and harmful, some of which may even amount to hate speech.[8] We have seen social media being used as a popular tool to disseminate hate speech, especially hate speech based on religion. It is also used by the wicked elements for propaganda- based hate messaging in a manner whereby it often becomes viral, making it difficult to identify the source and hold the user responsible.

Hate Speech can be understood as antisocial oration that is intended to encourage hatred against people because of their race, colour, religion and nationality and has a substantial likelihood of causing harm. In a landmark American judgement, the expression “hate speech” was articulated by Justice Murphy as:

“insulting or fighting words those which by their very utterance inflict injury or tend to incite    an immediate breach of the peace. It has been well observed that such utterances are so essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” [9]

In India, hate speech does not find place under Art 19(2) of the constitution and therefore does not constitute a specific exception to the freedom of speech and expression under Art 19(1) (a), but can be read under other specified exceptions under Art. 19 (2) such as sovereignty and integrity of India, security of state, incitement to offence, defamation etc. The provisions of Indian Penal Code which apply in hate speech over social media are-

  1. Sec 153-A penalizes the promotion of class hatreds.
  2. Sec 295-A penalizes insults to religion and to religious beliefs.
  3. Sec 505 penalizes to incite any class or community against another.
  4. The Information Technology Act, 2000 contains several provisions. It includes Sec 66A (now unconstitutional),[10]
  5. Sec 69 which grants power to the central or 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 state, friendly relations with foreign states, public order, for preventing incitement to commission of any cognizable offence for investigation of any offence.

It’s been a difficult task to remove the hatred material from the social media. But the government needs to catch up and be more responsive to the capabilities and consequences of developing technology. To truly prevent incidents of hate speech online, there is need of a massive campaign that sensitizes people towards media consumption and helps them to differentiate between free speech and hate speech.

Pornography and Obscenity

Social media, in particular with its fast circulation of obscene and pornographic materials, has made regulation more difficult. Most of the websites like YouTube, Facebook etc., are loaded with these materials, facing difficulties by the govt. to work on this. The difficulty faced by the Govt. of India was well evident from the case which has been filed before the Supreme Court showing inability to prevent pornographic and obscene materials on the internet and social media pages.[11]This writ petition was filed before the Supreme Court under Article 32 of  the Constitution of India challenging Sections 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Act, 2000 as unconstitutional on the ground that they are inefficient in tackling the rampant availability of pornographic material in India.

Though there is no specific provision in any statute that directly deals with pornography, but it has been brought within the purview of Sec 292 which deals with obscenity in the Indian Penal Code, 1860 (‘IPC’). This Section imposes criminal liability for sale, distribution etc. of obscene material.

Also Read  Article 368: Boon or Bane?

Sec 292 (1) of Indian Penal Code defines obscenity:

“For the purpose of subsection (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

Under the Indian Law, though watching pornography is not illegal but sharing or disseminating the same, the obscene contents has been made punishable under section 67 of the Information Technology Act. The Act provides a penalty of imprisonment up to three years for publishing and transmitting obscene content.

In the case of Kamlesh Vaswani vs. Union of India and others[12], the petitioner challenged the sections 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology Act 2000 as unconstitutional, as they are insufficient in tackling the rampant availability of pornographic material in India. It was demanded by the petitioners that viewing of pornography be made a non-bailable offence and pornographic content on the internet be blocked. Internet Service Providers Association of India (ISPAI) has submitted that they cannot block such sites and they can only do so only on the direction of the Govt. Government submitted that it was struggling to block pornography sites because there were around four crores websites and when they block one, a new one is created. The govt. has further submitted that it has constituted a Cyber Regulation Advisory Committee under Sec. 88 of the IT Act and one of the briefs assigned to that Committee is with regard to availability of Pornography on Internet.

The root cause of most offences against women is the easy availability of porn. The issue of pornography and the pornographic content has serious implication on human mind and behaviour. Studies have shown that pornography leads to sexual crimes, violent sexual behaviour, aggression, frustration and depravity of mind. The existing legal framework is inadequate to tackle the menace of porn. Watching porn in any form has no positive impact whereas it has several negative impacts. The law prohibiting porn must be implemented, strict rules and regulations should be made, the govt. must block the porn sites and the public officials responsible for the implementation of such laws must be held accountable if they fail in performing their duties.

Conclusion

It is clearly evident that social media is a very powerful means of exercising one’s freedom of speech and expression. However, it is also been increasingly used for illegal acts which has given force to Govt’s attempts at censoring social media. Where on one hand, the misuse of social media requires the need for legal censorship, but at the same time on the other hand, there is a violation of Civil rights of people as an unavoidable consequence of censorship. What is therefore desirable is regulation of social media, not its censorship. However, the present cyber laws of India are neither appropriate nor adequate in this respect.

 The onus is on the Government, which should ensure through an effective law structure, all the possible facets of the use and misuse of social media and put forward a suitable manner in which it can be regulated without interfering the rights of the citizens and the users should be informed and made aware or vigilant about the pros and cons of the social networking services so that they can be saved from the legal problems they have to face thereafter and moreover, the cyber world can become a safer place to navigate.


[1] Dr. Saswati Gangopadhaya &Ms Dabarati Dhar, Social networking services and privacy issues, 5 GMJ,1,  (2014).

[2] The Information Technology Act, 2000 cane into force on 17th oct,2000 and it has been substantially   

   amended through the Information Technology (Amendment)Act, 2008.

[3] Yvonne Jewkes, Media and Crime262 (3rd ed. Sage Publication, 2015).

[4] D.Graciyal &Dr. Deepa Viswam, Freedom of expression in Social media: A political perspective, 3 RRJ,

   110 (2018).

[5] Shishir Tiwari and Gitanjali Gosh, Social media and freedom of speech and expression: challenges before  

   India Law, (Feb.15,2019,7:30pm) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2892537

[6] Sec 499 of Indian Penal Code defines defamation and Sec. 500 provides punishment for defamation.

[7] Vakul Sharma, Information Technology Law and Practice 419 (3rd ed. Universal Law Publications, 2011).

[8] Natalie Almiviadou, Hate speech on social media networks : towards a regulatory framework, 28 I&CTL

    19- 35, (2019).

[9] Chaplinsky v. New Hampshire, 315 U.S, 568 (1942).

[10] Shreya Singhal v. Union of India A.I.R. 2015. S.C. 1523.

[11] Kamlesh Vaswani v. Union of India, (2013) S.C, WP(C) No.177.

[12] Kamlesh Vaswani vs. Union of India and others (2014) 6 S.C.C. 705 (India) (Till the time of writing this paper the case was still pending before the Supreme 

    Court).