Thursday, 25 April 2013

Social Media & Indian Cyber Laws

Social Media & Cyber Laws

By : Jeetender Gupta, Advocate (BCA, MBA, LLB)
Feedback:, 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 (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. 

1 comment:

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