 "Pavan Duggal")
Social media has caught the imagination of India – no wonder, then, that Indians are among the most active on such platforms. The mobile revolution has further ensured that social media is growing as people now access social media through various applications and devices.
The easy availability of access to social media on the go has also triggered the phenomenon where people invariably post information on social media without understanding its ramifications. A number of times, people post content on various social media sites like Facebook, Twitter, Pinterest etc on the spur of the moment or on an impulse without thinking it through.
The law in India is crystal clear regarding your publications on social media. The Information Technology Act, 2000, categorically makes you liable should you post any incriminating or illegal content or material on social media. In fact, the law has gone even further and recognises you, providing content on social media, to be a content service provider and network service provider. Hence, the law recognizes social media users as network service providers and hence, intermediaries under the law.
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Indian cyber law requires intermediaries, including users of social media, to exercise due diligence while they discharge their obligations under the law.
Of late, we are witnessing tremendous misuse of social media. The recent case of a man being lynched to death on mere rumours of his storing beef has caught national headlines. Investigations by the Police have revealed that the said incident has also lead to fuelling of social media activities. That is the reason Uttar Pradesh Chief Minister Akhilesh Yadav directed his administration to take stern action against those “creating disharmony and inciting hatred” by circulating “baseless” content on social media. As such, the police have written to Twitter to disable and remove pictures and content that might create communal disharmony. Twitter as an intermediary is duty bound under Indian cyber law to comply with these directions.
Seen from a holistic perspective, the present case represents a new trend. We have seen earlier cases where people have posted objectionable or illegal content on social media sites like Twitter, but there has not been much action in this regard. The action by Uttar Pradesh Police authorities represent a new trend where increasingly now service providers and intermediaries can be called upon by governments to remove or disable access to communally sensitive content, as well as also force them to give the details of the persons behind the same.
At a time when various elements are misusing social media, such an exercise is essential so as to not only bring to book the guilty people as also to ensure that people do not continue to misuse social media with impunity.
In the Shreya Singhal case, the Supreme Court has already held that the intermediaries are duty bound when they are called upon by any order of the government to move or disable access to any information as well as provide relevant connected information pertaining to identity of the offenders. I believe this power is a very special power which has been conferred under the Information Technology Act, 2000, and needs to be more frequently used.
We should also be realistic that given the rapid growth of social media in India, it will take some time before the maturity curve acquires a stable basis. Till such time as adequate self-policing mechanisms are not built within the social media networks, it is but natural that powers like those given to the government to give directions to service providers will be used more frequently.
The learnings from the present episode are crystal clear. No one should ever feel that the Internet is the ‘wild, wild West’ and that they can hide behind the so-called cloak of anonymity on the Internet or social media to engage in any illegal or criminal activities. Any illegal or criminal activity done by any person on social media leaves electronic footprint or trails which can always be used for the purposes of identifying the real person and prosecuting him for legal consequences.
Due diligence has to be the only mantra for all the social media users. It is always wise to never publish any content on social media on an impulse or when one is in an emotional state of mind. One should always revise content which one needs to upload and see whether there could be any potential legal consequences. It is always better to take precautions rather than being adventurous and facing undesirable legal consequences later.
The jurisprudence on social media misuse in India is only beginning to evolve. As a nation, we have just very few cases pertaining to misuse of, and cybercrime on, social media. However, given the speed of adoption of social media, it is but natural to expect that more and more cases of misuse of social media need to be registered, investigated and prosecuted. Further, the focus of the prosecution must be to try to get convictions so as to give a message to the entire community that social media is not a free-for-all ecosystem but a medium that is appropriately regulated by rule of law.
The entire issue of social media misuse is a constantly evolving paradigm. It will be interesting to see how jurisprudence on social media misuse in India evolves with the passage of time.
(Pavan Duggal is an advocate in the Supreme Court of India, and president of cyberlaws.net)
