The article is written by Aditya Singh of Symbiosis Law School, Noida. This article deals with the crimes committed on social networking sites and the growing need for regularisation of social media. It also deals as to how these regulations will affect the privacy of the users by observing the current situation and the existing provisions dealing with such crimes.

Introduction

International technology firms, for instance, Facebook, Google, Twitter, etc. constitute the digital infrastructure in almost all of the world. They are rarely regulated and are barely accountable, yet these corporations are playing a significant role in totally transforming the social world. Even if these platforms offer new ways to interact and communicate with people from all over the world. They also end up creating security vulnerabilities and a platform for criminal elements that want to circulate misinformation or encourage terrorist activities and cyber-attacks, participate in online sexual harassment and bullying, destroy or steal sensitive data and personal information and suppress free speech. The possibility of such attacks leads to only one solution, that is, the era of social media without any regulations governing it should come to an immediate end. As more people in this virtual world, regardless of their age and gender, are signing up for online social networking accounts to communicate and connect with one another. 

Several have multiple profiles with hundreds or even thousands of followers and friends spread across the world. Yet at the same time, numerous fake accounts are still emerging on such sites, representing themselves to be a different individual by using their profile details and photos, which are also used to harass or bully such individuals. Fake accounts frequently spam genuine users, uploading content that is inappropriate, indecent, or often illegal. These regulations will aim to make social media websites more accountable for the content they host. Another objective would be to implement content traceability, ostensibly in order to allow accountability and transparency. If the proposed guidelines pass, India would then take part in the rapidly growing list of nations that monitor and control social media, including recent countries such as Australia, Singapore, Europe, and China.

Defamation and hate speech

The most often documented and observed crimes occurring on social networking sites include people making anonymous threats, bullying, harassing, and stalking others. Most of these types of crimes go unpunished and are therefore not treated very seriously. Defamation on Social media may be defined as representing someone by hacking their social media accounts and sending indecent or inappropriate messages to the friends and followers of the individual, consisting of vulgar language and obscene content or by uploading such content through that individual’s account on social networking sites.

Hate speech is described as a speech of aggressive nature containing statements of inferiority and messages expressing prejudice against an individual or community based on certain features. These features may include ethnicity, religious affiliation, sexual orientation, caste, national origin, sex, race, gender, and severe disability or illness.

Online harassment and cyber stalking

“Cyberstalking” is described as a crime in which the stalkers need the Internet and any other electronic device to stalk anyone. Online abuse, bullying, and harassment on social networking sites are synonymous with cyber-stalking. It usually includes the conduct of repeated harassment or threats done towards an individual. Cyberbullying and harassment can include threatening or harassing email messages, text messages, or uploading information online. It aims at a particular individual either through attempting to contact them directly or by distributing their private and sensitive information, to cause distress, fear, and anger.

The primary advantage of cyberstalker is that they depend on the anonymity offered by social media or the internet which allows them to keep a track of their victim’s activities without the fear of anybody detecting their identity. There can be numerous psychological factors behind stalking, such as extreme narcissism, hate, anger, revenge, jealousy, fixation, mental illness, the need for power and control, perverted sexual desires, sexual deviance, addiction to the internet, etc.

There are three separate classifications of stalkers:

• Obsessional stalkers are the stalkers whose motive is their fixation with sexual harassment and quite often love;
• then there are the delusional stalkers these stalkers feel the need to show their dominance; and
• then the vengeful stalkers who are stalking just to take revenge from an individual.

Privacy and social media

The privacy of an individual is a basic human right, whether it is on social media or in the physical world, depriving a person of his right to privacy is similar to snatching away a person’s dignity and his liberty. A false claim about widespread child trafficking and harvesting of organs circulated widely through WhatsApp resulted in mob violence and more than three dozen deadly lynchings in 2017 and 2018. WhatsApp declined the government’s demand to disclose the source of the rumours, stating its pledge of anonymity and privacy towards its 400 million Indian users done through end-to-end encryption provided by the application.

After much anticipation and discussion, the Personal Data Protection Bill was tabled in the Lok Sabha in December 2019. The Bill tabled differed considerably than the one recommended by the Justice Srikrishna Committee. The bill introduced the concept of “Social Media Intermediary” and proposed that certain social media platforms would be required to provide its users with the option to verify their accounts willingly, allowing much more transparency. Section 26 of the bill describes the term “Social Media Intermediary” a mechanism to support and facilitate the online contact between users on social media. The bill allows the intermediaries to offer the users the option of getting their accounts verified.

These verified accounts will then have a mark that will be visible to other users, hence providing the proof of authenticity. But this requirement will adversely affect the enjoyment of freedom of expression online on such social media websites. The Supreme Court held in the case of Justice K.S.Puttaswamy v. Union of India that any invasion of the privacy of any individual by the government should be sanctioned by law and should be for fulfilment of essential state objectives, as if this is exempted from the provisions of the law, the government or intelligence agencies will be able to demand private details of any users with little respect towards the privacy of such individual. The bill would also be a cause of loss as most leading social networking sites depend on the data collected from their users to drive targeted advertising services which are a major source of their revenue.

Recent developments

While the government appreciated the technology that would contribute towards economic growth and development, it also expressed concerns about the unprecedented increase in the use of hate speech, false and misleading news, danger to public order, anti-national behaviours, defamatory and offensive posts and other criminal activities on such social media websites. The Internet has developed into a powerful way to undermine the democratic political system unimaginably because of uncontrolled content circulating in social media. The Ministry of Information Technology (IT) also believed that the current rules for effective intermediary regulation must be revised in view of growing risks to the integrity, sovereignty, and protection of individual rights and the country.

However, the regularization of social media emerged to be a topic with numerous views, as the laws of almost every country guarantee Freedom of Speech and regulating and placing restrictions on anonymous identity would amount to a violation of his or her freedom. In cases such as Ramlila Maidan Incident v. Home Secretary and Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India the apex court held that the fundamental right of freedom of speech and expression is not an absolute right as stated under Article 19(1)(a) of the Constitution and entails some restrictions with it.

Meanwhile, during the hearing of a Facebook plea wishing to transfer several pleas from various high courts to the Supreme Court, the Supreme Court as well stated its concerns regarding problems such as bullying, the assassination of character, trolling, spreading false news and misinformation on the social networking websites. The major tech firms and groups dealing with Civil Rights, on the contrary, are of the view that the proposed regulations are just an invite for the government towards abuse and censorship. The executives of Mozilla Corporation, GitHub Inc. and Cloudflare Inc. stated that these provisions will only lead towards increased surveillance and immediate censorship, as to meet the requirements of the government and to trace the source of the content, the firms would have to increase surveillance on its users which would be a blatant violation of the individual’s fundamental right to privacy. Towards which they were assured that firms such as Wikipedia, Mozilla, and other such websites are exempted from these provisions and only the social media websites and messaging applications are included under these regulations.

In the previous year, social media platform TikTok belonging to the parent company ByteDance the application was also banned for a short span of time as the content it hosted was deemed inappropriate by the Madras High Court, especially with respect to the minor children who were getting subjected to obscene content depicting pornography, due to which India’s Ministry of Electronics and Information Technology ordered for the app to be removed from the app stores. Which was later on lifted but Tiktok in the meantime lost almost $500,000 and about 2 million followers. Now once again the ban of TikTok is in question because of the recent video posted by one of its user’s Faizal Siddiqui which seems to be encouraging acid attacks on girls and another video of Mujibur Rehman promoting and glorifying rape, though both the videos and accounts of the respective users have been taken down for violating community guidelines, it has again put the application in a position to get banned.

The current position of the government is that, unlike other countries who want the social media to be held more responsible for the content hosted on their platforms, the Indian government wants full cooperation of these websites whenever it is required even without any court order or warrant. Though the proposed guidelines are yet to arrive, the earlier drafts required the social networking websites such as Facebook and its sister sites namely WhatsApp and Instagram and other similar platforms such as TikTok, YouTube, etc.to store their records for at least 180 days and to locate the source of any content uploaded on their platforms and to share the same with the authorities within 72 hours from when the demand is made.

Relevant provisions

Under Indian laws the crimes done on social media are governed under the Information Technology Act, 2000 and Indian Penal Code, 1860, the relevant provisions dealing with such crimes are:

1. Indian Penal Code (IPC) Section 354D describes the term ‘stalking’. It was added to the section by the Criminal Amendment Act, 2013 added, after the Delhi gang-rape case of 2012. The definition under this Section takes into consideration both types of stalking whether Physical or Cyber.
2. Section 292 of the IPC and Section 67 of the Information Technology Act, 2000 describes and deals with the term ‘obscenity’. The crime of cyberstalking involves the act of sharing of inappropriate and indecent content with the victim through social media websites or through e-mails or text messages, etc.
3. Section 507 of the IPC applies to the crime of “criminal intimidation through anonymous communications.” This provision specifies that if the stalker seeks to conceal his identity so that the victim continues to remain unaware of the source from which the threat originates, which is considered to be an offence.
4. Section 67B under the Information Technology Act, 2000 is a new section that has been inserted by the Amendment Act of 2008. This clause focuses on the crimes in which the stalker attacks children under the age of 18 and uploads content that consists of children involved in intimate activities to intimidate the children.
5. Section 66E of the Information Technology Act, 2000 and Section 354C under the Indian Penal Code addresses “voyeurism” which can be defined as the act of intentionally capturing, publishing or transmitting images of the private area of an individual without their consent which leads to violation of the privacy of the person.

Conclusion

Almost all appeals in the three high courts further sought guidance that Aadhaar or some other government-authorized identification proof should be made compulsory to verify accounts on social media websites. The majority believe that illegal content such as child pornography, explicit or indirect threats, violent videos promoting extremism etc., should definitely be monitored and regulated. However, the need to regulate anything that is obviously not illegal is unclear and needs to be looked into. The government claims that unmonitored content on social media will promote fake news, violence, defamation, threats against public order, acts of terror, intimidation, hate speeches, and anti-national activity. 

Though this may be true, it is still questionable as to why the regulation of content is the solution if the content is conclusively not unlawful. In fact, social media is really just a medium for the expression of views, a stage where voices of an individual could be heard; it makes just as much sense for the website to be held responsible for its contents, even though it is absolutely illegal, as it would for the content of just about any conversations which use the infrastructure provided by a carrier or a network operator or a network provider. The current situation of TikTok where the people are even infuriated on the content it’s hosting, it only further suggests that the social media platforms should be regularized, but the fact still remains that complete transparency can do some severe damage to an individual’s privacy and the freedom to speech and expression. The need of the hour is that though regularization of the content uploaded on social media is necessary the privacy of the individual should be given the attention it needs.

References

• https://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill%2C2018_0.pdf

• https://www.medianama.com/2019/07/223-why-they-want-tiktok-banned-in-india/
• https://www.hindustantimes.com/india-news/tiktok-in-india-to-ban-or-not-to-ban/story-ychG1b7sTqC9FqDwE2n5hN.html

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