Social Media & Cyber Laws
By : Jeetender Gupta, Advocate (BCA, MBA, LLB)
Feedback: guptajeetender@gmail.com, Twitter: @jguptallb
(This keynote address was presented at the closing ceremony of 2 day National Conference on Science in Media SIM 2012 organised by YMCA University of Science & Technology, Faridabad, 3-4 Dec 2012.)
‘The next world war, if and whenever it happens, is not likely to be
fought on battle grounds, but over cyber space and stock markets.”
In this cyber age, the moment a
newborn greets a whole new world, the news gets Tweeted & Retweeted
instanly, the first picture gets
Uploaded and Liked on the facebook & the video with first smile might just
go viral on the youtube in no time. Welcome to the world of social media over
the Internet. It has embraced us like no other media had done ever before. But
what started as touching lives has now evolved to affecting & even
governing them. A newborn becomes an online entity on social media even before
the nomenclature. Only last week, Inspired by twitter, a women in UK has christened
her baby girl Hashtag.
Pope Benedict XVI is the latest
to be on twitter. The Catholic Church is trying to reach a wider audience and
woo the Internet Generation especially youth. The SMS generation has now
graduated to chatting through social media. As per a report social messaging is estimated to cost telecom
operators over $23bn in mobile messaging revenue in 2012. Social media is more
about sociology & psychology, then about technology. As per the Internet
World Stats, India has achieved a 10% Internet penetration at 12 crore users,
37% of these users access facebook. As per a survey by McAfee, 97 percent of
Indian teens have access to social network and spend 86 percent of their time
on facebook. Hence the impact on society would remain unprecedented.
A low budget video produced in
California, recently uploaded on Youtube, triggered anti-US protests and
attacks on Western embassies in Muslim countries. A Cairo court went up to the
extent of sentencing to death seven Egyptian Christians, tried in absentia for
participating in this anti-Islam video. The producer of the video Nakoula has
been arrested in USA. A Pakistani Minister has offered a $1,00,000 bounty to
anyone who kills him. Garcia, an actress involved in the video has filed a
second law suit in Los Angeles Supreme Court seeking to force Youtube and
Google to pull of the video trailer. This has proved to be an extreme case of
hate crime over cyber space.
Back home in India, in August
2012, rumors about possible attacks led to mass
exodus of people from northeast from many places including Bangalore, Chennai,
Mumbai and Pune. It took several hours before the Govt of India could reach to
the root of the problem. Much of these rumors were allegedly being sourced from
Pakistan. The Government reportedly ordered 80 or more Internet pages and
user-accounts on social networking sites including Facebook, Google and Twitter
to be banned to avoid panic among people of the North-Eastern region living
across India. Cyber Terrorism has made inroads.
This
crisis led to a standoff between the government and microblogging service
twitter who were not responding to India’s requests to block some of the fake
“PMO India’ accounts. The Govt of India was also contemplating what action
should be taken against Twitter. This fire fighting exercise exposed our
vulnerability to cyber attacks. After
exodus of thousands of people and a tussle between Govt of India and Social
media sites, it took several hours (almost a few days) before the situation
could be brought under control.
In
a country like India with great diversity in terms of caste, community,
religion, and language, we have simmering volcanoes all over. A country which
has a history of riots ranging from the bloodiest 1948 partition to recent
riots in 1984, 1993 and 2002, such rumors if not timely plugged could result in
massive loss to lives and property. The ease, access, speed and reach of such
volatile information could create a kind of cyber fission in no time and the
possible damage could grow exponentially. Even though we have Cyber Laws in
place in the form of Information Technology Act 2000, but in the need of the
hour, we need a cyber army to handle such eventualities. The government is in
the process of developing capabilities, systems and task force that would
enable us to handle undeclared cyber threat, to prevent us from attacks, plan
suitable counter-attacks and to improve cyber defence.
Where there is a need to address
the cyber threats over the social media, there is another school of thought
that is advocating freedom of speech and expression, which is likely to be
threatened if we deal strictly with cyber menace.
A professor in Kolkatta gets
arrested for sharing a cartoon with a few of his friends. Another cartoonist
got arrested in Mumbai on charges of sedition. An Industrialist in Puducherry
gets arrested for allegedly posting offensive tweets targeting son of a Union
Minister. Two young girls from Palgarh (Maharashtra) get arrested for a
Facebook post, airing their opinion about disruption of public life because of
Bal Thackeray’s funeral. And in yet another incident, two Air India employees
were jailed for 12 days allegedly for uploading lascivious and defamatory
content on social networking sites Facebook and Orkut. A common factor in all
these incidents is the application of a law called the Information Technology
Act 2000 and especially Section 66A. Let us look at Section 66A a little more
closely.
66A. Punishment for sending
offensive messages through communication service, etc. Any person
who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has
menacing character; or
(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device,
(c) any electronic mail or electronic mail message for
the purpose of causing annoyance or inconvenience or to deceive or to mislead
the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which
may extend to three years and with fine.
These recent events over misuse of Section 66A have triggered a big national
debate. Some of Terms described in the section
such as “causing annoyance”, “causing inconvenience”, “causing obstruction”,
“causing ill will” etc. created an ambiguity as this could be interpreted in
multiple ways by different people. The Section 66A of the IT Act is now
being referred to as the draconian act by many on the social media networks.
Demands to scrap the section or to suitably amend it are being raised all over
the country. Some from legal fraternity feel that Section 66A is in violation
of several provisions of the Constitution especially freedom of speech and
expression. A few have even approached various High Court benches and also the
Supreme Court of India praying to repeal this Section.
Meanwhile, the Govt. of India has
issued fresh guidelines to curb this misuse. Any complaint on content deemed
offensive will now require the approval of senior police officers. For
metropolitan areas, it would the rank of Inspector General or higher and for
non-metropolitan areas, it has to be Deputy Commissioner or higher. Many still
believe that these are nothing but cosmetic changes and are of no consequence.
Have our law makers seriously
erred in legislating the Act. Could they have overlooked a possible violation of
the Section 19(1)(a) of our Constitution as per which “All citizens shall have
the right to freedom of speech and expression”. Most people stop at that and do
not read the Section in totality. On a further reading one would find Section
19(2) which states that, “Nothing in sub-clause (a) of clause (1) shall affect
the operation of any existing law, or prevent the State from making any law, in
so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States,
public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.” Our freedom of speech and expression,
contrary to popular belief, is not absolute. The Constitution which gives us
this fundamental right imposes reasonable restrictions on the exercise of these
rights.
Much of the uproar is primarily over
the issue of arrests. The power of arrest without warrant is to an extent, a
necessity. Cyber crimes go beyond the boundaries and borders of states and
nations and the challenge of jurisdiction would arise. Much of the offenders
are anonymous and the service providers based overseas. If it is a
non-cognizable offence, forget investigation, even serving summons would be a
challenge. It would mean compelling the victim to undergo time consuming
complaint procedure or to collect prima facie evidence against the accused (it
required). It may take long, even years, before accused is directed to appear
before a magistrate and face trial. A lot of such crimes may remain
uninvestigated, unpunished & would rather discourage the victims from even
initiating complaints.
The fact remains, that the issue
of arrest is not covered under Section 66A but Section 80 of the IT Act 2000
which provides the power to enter a public place and search and arrest a
suspect without warrant. This also creates an ambiguity. Normally the offences in
which arrest without warrant is provided are classified as cognizable & others
are non cognizable offences. And because of the overriding effect provided
through Section 81 of IT Act 2000, the classification of offences under IT Act
gets distorted and confusing. When the accused is found in a public place all
the IT Act offences would become cognizable i.e. arrested without warrant. It
is the Section 80 that needs to be amended. The word “public” should be deleted
from subsection (1). Also the words “any offence under this Act” should be
substituted by “any cognizable offence under this Act”.
But just because an Act has a few
incidents of misuse, should an Act be abolished? Anti-dowry law like IPC 498A
is perhaps one of the most misused Act. And unlike section 66A of IT Act, this
offence is cognizable and non-bailable, and has been sending people behind the
bars for decades now, including some of the innocent family members especially
elderly parents & women. Hon’ble Supreme Court of India has described fake
dowry cases as legal terrorism. Even the Law Commission of India has
recommended suitable amendments to dilute the provision of the immediate arrest
of the accused. But then there are those who oppose this proposed dilution and
feel that the fight against dowry would be compromised, especially when the
dowry deaths are continuously on rise.
The Cyber Crime continues to rise geometrically.
Going by the 2011 figures provided by National Crime Records Bureau (NCRB),
there were 1,791 cases registered under IT Act during the year 2011 as compared
to 966 cases during the previous year (2010) thereby reporting an increase of 85.4% in 2011 over 2010. Andhra
Pradesh, Maharashtra & Karnataka are the states on top of the list. The Norton Cybercrime Report 2011,
released in September by research firm Symantec Corp., estimated that nearly 30
million people were victims of cybercrime in 2010, suffering $4 billion in
direct financial losses and an additional $3.6 billion in time spent resolving
the crime. In India, four in five online adults have been a victim of
cybercrime, according to the report.
Apparently, the real issue is not
the legislated Act or its sections but its effective implementation. And in a
country like ours, training our police personnel, to understand & investigate
a cyber crime is also a big challenge.
When a pornographic MMS clip featuring
two DPS students went into circulation, it shook the conscious of the nation.
And the concerns related to obscenity & pornography over Internet became a
National issue when the same clip got allegedly listed for sale in Nov 2004
over a popular portal baazee.com (now E-Bay India). The incident caused a
sudden panic across the country. The inefficiency of the IT Act 2000 and the
necessity to suitably amend it was widely debated. Avnish Bajaj, the then CEO
of the website was summoned by Delhi High Court under Sections 67 and 85 of the
IT Act 2000. The cyber laws as it stands today have been made more rigid
especially for Child Pornography.
Today, young children &
females are facing a new threat, Cyber-stalking or on-line harassment over the
Social Media. Cyber-stalking allows the stalker to remain anonymous, and yet
embarrass or threaten the victim from anywhere in the globe without physically
confronting the victim. And the cases become more dangerous when the cyber
stalker is an ex-partner or ex-spouse, harassing or threatening the victims who
are attempting to come out of relationship. Publication of embarrassing photos
or letters etc. over the social media sites is the biggest threat. Some go to
the extent of creating fake profiles in the name of the victim, associating
with the victim’s friends and family & circulating or threatening to
circulate fake / morphed pictures.
Cyber defamation continues to
remain a grey area on the Internet with plethora of issues. Damage beyond
repair, can be caused to the reputation of an individual or an organization, by
publication of false allegations or defamatory content. The offence of
defamation is defined under Section 499 of the IPC. In Indian IT Act, the
definition of publishing a defamatory content is wide enough. An email making
allegations against the person to whom it is sent wouldn’t qualify as a
defamatory statement, as long as it is not sent to a third person.
Many Intermediaries (Service
Providers) have argued that they have no control over the content over their
medium and so should not be held responsible for defamatory statements hosted
by them. The IT Act 2000 through Section 79 and has tried to cover the
liability of the Intermediary & they are required to observe due diligence.
Detailed Guidelines have been included in the new set of rules which became
effective from April 2011. The intermediary is required to act within 36 hours in
disabling any undesired which is in violation of sub rule (2), upon obtaining
knowledge by itself or been brought to actual knowledge by an affected person
in writing or through email signed with electronic signature about any such
information.
The intermediary are also
required to publish on its website the name of the Grievance officer and his
contact details as well as mechanism by which users or victims could notify
violations. However, most social media sites have failed to comply with much of
these rules and guidelines. And that is primarily the biggest reason for growth
in cyber crime over social media. Much of the issues that can be resolved at
the intermediary level over a simple complaint have to be routed through a
legal / judicial process for relief. The Government of India needs to act tough
on these intermediaries and ensure effective implement these rules /
guidelines. With more than a billion Indians and a fast growing user base &
in turns the revenue, none of these can really afford to ignore the law of the
land.
The States in that case could
consider issuing a fresh set of guidelines, asking the Police officials
investigating such crimes, to verify before making any arrest, whether the
intermediary was duly notified to remove the allegedly harmful content and also
if the required 36 hours notice period has been duly. Arrest could be initiated
only if the offence continues even after observing the above suggested procedure.
The concept of jurisdiction in
the context of the Internet is another challenge for the IT Act. While much is
said and written about piracy and copyright issues, our popular movie songs
& videos are freely available through several websites hosted in
neighboring Pakistan & we’ve not been really able to address this problem.
What if a hosting website, hosts content that is perfectly legal in its home
country but may be considered illegal or offensive in India. Even if Indian
Courts claim jurisdiction and pass judgments, getting them enforced through
foreign courts would create a conflict of jurisdiction.
A blogger
from Iran was reportedly tortured to death after criticising Iran's regime in
his posts. A teenage girl from Nebraska, USA got arrested last week because
she posted a video on Youtube saying she stole a car and robbed a bank.
In UK, One teenager made offensive
comments about a murdered child on Twitter. Another young man wrote on Facebook
that British soldiers should "go to hell." A third posted a picture
of a burning paper poppy, symbol of remembrance of war dead. All were arrested,
two convicted, and one jailed - and they're not the only ones. In Britain,
hundreds of people are prosecuted each year for posts, tweets, texts and emails
deemed menacing, indecent, offensive or obscene, and the number is growing.
In
Germany, one is forbidden against any propaganda that promotes precepts of Nazi
regimes. In Austria, the Prohibition Act similarly prohibits actions on behalf
of Nazi party as well as advocacy of its objectives or dissemination of its
propaganda. In Canada, separate provisions of Criminal Code criminalize the
willful promotion of hatred. Last month, the
UAE issued by decree a new law making it a crime to deride, insult, mock or
criticize, by using the Internet, the leaders of the UAE.
While talking at the London Cyber
Conference, last month, UK Prime Minister David Cameron, said, “There is
already cyber espionage, cyber crime and hacktivisim [when activists attack
networks for political ends] -- soon we will be facing cyber terrorism”.
U.K. Foreign
Secretary William Hague announced seven principles as the basis for more
effective cooperation, including "the need for governments to act
proportionately" in cyberspace and in accordance with international law;
protection of freedom of expression; respect for privacy and copyright; and
proposed joint action against criminals acting online.
In
December 2012, under the auspices of the UN's International Telecommunications
Union (ITU), representatives from 193 countries will meet in Dubai, in the UAE to discuss the
future of the Internet. Slated for discussion are such basic online rights as:
individual privacy, freedom of expression, and protection for individuals from
tyrannical governments.
While
the debate between those advocating free speech and law enforcers would
continue, what we all need to understand is that the Social media is far more
pervasive than we typically imagine It means someone somewhere is watching you.
One has all the rights to express freely but one needs to be a little cautious
when we are commenting about others. One way to handle this is avoiding using
names directly and also avoiding tagging or copying message to those against
whose an unpleasant comment is being made.
Facebook should never become Face
the Book.
PS: Some parts of the above document might have become obsolete now & might require further updating. The original format has been retained not to alter the original keynote address.
