This Article is written by Abhinav Anand, a student pursuing B.A.LL.B(Hons.) from DSNLU, Visakhapatnam. This article critically analyses the liability incurred by the WhatsApp group admin for respective messages in the group. It also suggests constructive changes in the existing legislation to curb the menace of different fueling circumstances caused by such messages.

Introduction

In the 21st century, the world has witnessed some exotic technologies coming in the public domain to make life more convenient and easy. The boom of different applications such as Facebook and WhatsApp are the results of the technological revolution. As we know that there is a flip side of every story, the same goes with these innovations. The technology-driven society has experienced many kinds of menace because of the misuse of these technologies. One such menace is the spread of fake news. Indian laws are still in a stagnant stage to accept these types of crime. Using this loophole as an excuse, the perpetrators have infiltrated venom in the mind of people by pouring communal, racial and anti-social content through the modern communication channels. This article critically analyses the issue of liability incurred by WhatsApp group admin, if any. It delves into the existing legislation to counter and penalise the perpetrators for such offences and also suggests some constructive changes that must be brought into to protect the society from such crimes.

Reasons behind the liability of the admin

• Fake news

Fake news has become a perennial threat in the recent past. The misleading content shared through what’s app group creates communal clashes in many parts of the country. This problem is grave in the rural areas wherein the people are easily manipulated by these kinds of messages. 

• Inflammatory messages

The communal violence erupted in Delhi a few months back has left 53 people injured and more than 200 people died. Based on the assessment of mob lynchings in different parts of the country, inflammatory messages have  played a pivotal role in fomenting all such kinds of violence.  

• Obscene contents

Recently in Delhi, a man was arrested on the ground of sending obscene messages to 1500 women. These types of incidents happen time and again in the country, but still, the accused evade the punishment as there is no appropriate legislation to penalise them. The social media handles are the favourite place for teenagers and such contents possibly deviate their thought process and provoke them to commit heinous offences. 

Laws in India

Provisions in India Penal Code

Section 153A 

The section provides for the penal punishment for those who promote enmity between the different groups on the basis of religion, race, caste, place of birth and doing any act prejudicial to the maintenance of harmony. This section further specifies the act that may come under its ambit. It says that whoever.

1. By words either spoken or written, or by signs, or by visible representations and by any such other means, promote or attempt to promote any kind hatred or enmity between the group of people on the ground of race, religion, place of birth; or
2. Commits any act which is prejudicial to the harmony between different race, religion, caste or community any act which disturbs or likely to disturb the public tranquillity shall be liable with imprisonment 3 years or fine, or with both.

Section 153 B

This section provides for imputation and assertion made which is prejudicial to national integration. This section further specifies the very act that comes under the ambit of this section;

1. Whoever by words either written or spoken, or visible representation publish any kind of imputation about any caste, religion or community that such class of people do not owe allegiance to the Constitution of Indian or uphold the sovereignty or,
2. Asserts, counsel, propagates or publishes that any class of people by virtue of their religion, race or caste be denied or deprived of their rights of citizens,
3. Makes or publishes any assertion, counsel or appeal concerning the obligation of any class of person, by reason of their being a member of any caste, class or religion and such assertion counsel or appeal cause or likely to cause disharmony and hatred or ill-will between such members or other people, shall be punished with three years imprisonment, or fine or with both.

Section 295 A

This Section provides for the penal punishment for those who deliberately and maliciously intended to outrage any religious belief any religious feelings of any class or caste of people either by words spoken or written or by visible representation insult or attempt to insult shall be punished with imprisonment for 4 years, or fine, or with both. 

Section 505

This Section provides for the penal punishment for those whose statements led to public mischief and other allied events. This section categorically mentions the kind of events that fall under its ambit;

1. Whoever makes, publishes or circulate any statement, rumour or report;

• with intent to cause, or which is likely to cause, any officer, a soldier in the army to mutiny or otherwise disregard or fail in his duty as such,
• With intent to cause, or likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the state or against the public tranquillity,
• With intent to incite, or likely to incite, any class or community of person to commit an offence against any other class or community shall be punished with imprisonment which may extend to three years or with fine, or with both.

2. Statement creating or promoting hatred, ill-will between classes;

Whoever makes publishes or circulates any statement or report containing rumour or any alarming news with intent to promote or likely to promote, on grounds of religion, race, caste, place of birth, enmity or feeling of hatred between different religion, race, class or caste shall be punished with imprisonment which may be extended up to 3 years, or with fine or with both.

Section 188

This Section provides for the penal punishments for those who willfully disobey the order promulgated by any public servant. The section punishes the offender merely on grounds that he is having knowledge that by committing such an act he has disobeyed the order promulgated by the public servant. It also imposes a higher degree of punishment for those whose actions might result in bodily injury, communal disharmony.

Provisions in the Information Technology Act, 2000 

Section 69

This Section provides power to the Central and State government to intercept, monitor or decrypt or cause to be monitor, decrypt or intercept any information if it is expedient to do in the interest of the sovereignty, integrity, peace of the country. It also provides for the detailed procedure that must be followed whenever monitoring, decryption or interception is done by the government. The reason for the same must be recorded in writing and the same shall be produced to the authorities by the intermediaries whenever needed.

Proposed changes in other countries

Argentina

In pursuance to the patent effects of Fake News on their Presidential Elections, the legislators in the country have identified a stronghold mechanism to counter the menace of fake news. They have proposed the establishment of a Commission for the verification of Fake News. The commission will be handling the prevention, labelling, detection of the fake news spread through digital media platforms during the election campaign. 

France

France has enacted a new set of legislations to counter the menace of fake news. They have issued a set of guidelines to the websites that are as follows:

1. Provide users with “honest, clear and transparent” information about the corporate address and identity of the person who paid to promote the information content related to debate of national interest.
2. Provide use of “clear, transparent and honest” information about the use of personal data in the context of promoting content related to personal information.
3. The amount of money received for the promotion purposes should be disseminated among the public if the amount is above a certain threshold.

Germany

Network Enforcement Act, 2017 enacted in Germany is applicable to the two million registered social media users in Germany. These services are Telemedia services in Germany wherein the users won’t be allowed to share any fake content. The act exempts that platform wherein original informative content is published having journalistic articles and messaging services. The Act obligates the social media covered under its ambit to remove any illegal content within twenty-four hours of its publication after receiving a user complaint. If the illegality of the content is not obvious at its face, the social network has to rectify and remove it within seven days.

The social media platforms are obligated to offer their use any easy and transparent complaint mechanism and the reports of their complaint redressal must be provided to the users within a stipulated time frame. This platform has to mandatorily publish the bi-annual reports in the year of all the complaints that they have received for the entire year. They also publish the report of the number of complaints redressed and the complainant got the required relief.

Any social media platform violating the regulation laid down in the said will be levied heavy penalty and the same is strictly implemented. 

Suggestions 

• Making intermediary liable

The bar posed by Section 79 of the Information Technology Act, 2000, which says that the intermediaries are not liable for the messages sent by third parties to any platform under the active supervision of the intermediary. So, it became problematic to curb such vertiginous spread of misinformation among the masses. If this section would be diluted to some extent and it will include the liability of the intermediaries, it will drastically decrease the spread of misinformation. 

• Developing a robust artificial intelligence system

It is time to use innovative technologies in a constructive way to counter such problems. Artificial intelligence will help us to cure the factually inconsistent and false data of the social media platforms. The United States of America has backed a website called “Claim Butser” which helps to identify the factual inconsistency of any published content and thereby assist the responsible person in removing such content.

• Inclusion of media literacy

This method has emerged as a panacea for such problems because when we will be including media literacy in the curriculum then students will be having an open perspective on how they can be easily manipulated by such fake news. In India, we need to devise a curriculum wherein the teachers, professors and learned people in academia need to accept and discuss the propagandas that can be initiated by any established group or organisation to fulfill their political mileage. So, if we will make the students of the country understand about such an initiative then it will become convenient for us to stop any major incident that will be the result of such infodemic.

Conclusion

As we can see the recent pandemic has put the world on a halt. In these compelling and exhaustive circumstances, when we come across content that can raise clashes between communities, and it turns out to be fake news or content, then it poses serious questions to us that are we able to cope with such infodemic menace. We have seen in numerous fake videos on the social media platforms, and communally filled content that led to mass ethnic cleansing in many parts of the country. These compelling circumstances can be avoided and reduced only when we must rectify all the venom pouring sources and take them to task. 

The current legal frame has many loopholes to counter such strategies and perpetrators easily use them and evade any kind of responsibility. Furthermore, the online cybercrime portal and other online complaint mechanisms devised to tackle such problems are not working in tandem with their objective. People have the horrible experience of using these portals. We need to establish an accountable body whose response time is reasonable and it delivers optimum results.

References

• https://www.loc.gov/law/help/fake-news/counter-fake-news.pdf

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