Conversations are happening whether you are there or not,” as one quotes Kim Garst; it appears to be so much inevitable about the ever awake and perpetually active social media. There is no denying that God and social media don’t sleep; but while the former is infallible, the latter, when unregulated, becomes an apparent threat and hovers almost beyond the reach of law enforcement agencies. Fact is it can neither be eliminated nor can be absolutely regulated; it is no less than the Albatross of “The Rime of the Ancient Mariner” as it enjoys Constitutional immunity of freedom of expression and utilitarian indispensability of the contemporary times.
There have been umpteen numbers of examples of egregious abuse of social media platforms, like spreading of fake news of kidnapping etc., which has resulted in around twenty nine instances of mob lynching last year, and subsequent internet shutdowns. The major players remain, firstly, the users and secondly, the intermediaries (social media platforms and aggregators), while law is clear regarding the accountability of the users, the intermediaries often are left with impunity by virtue of Section 79 of Information Technology Act, 2000.
It is understood that intermediary liability protection is a healthy business practice since it is not possible to do a background and content screening of billions of constituents of the internet traffic, but a complete let off without responsibility and accountability will be fatal. Under the current legal regime safe harbour is extended to intermediaries with respect to third parties, but not to the content fed and modified
by the intermediaries themselves and the intermediaries are required to disable/remove unlawful content on being notified by appropriate Government or its agency.
Infringement of an individual’s right to privacy is a regular business in social media, but after the Justice KS Puttaswamy judgement in 2017, where Right to Privacy was declared to be intrinsic part of Right to Life and Personal Liberty as under Article 21 of the Indian Constitution, the State’s onus has increased manifold in devising apparatus to ensure no such brazen infringement of privacy rights of citizens takes place in social media.
The difficulty lies in balancing the Right to Freedom of Expression as conferred under Article 19(1) of the Constitution and imposing reasonable restrictions as under Article 19(2) for greater public interest and national security while regulating social media transactions. The now struck down Section 66A of the IT Act was of some hope in regulating offensive and spurious news and communications via social media but failed the test of constitutionality before the Supreme Court in Shreya Singhal vs Union of India, (2013) 12 SCC 73, owing to its draconian language and its arbitrary and unreasonable application by law enforcement agencies. This was after the Palgarh case where two girls were arrested for their comments on social media as Mumbai was shutdown following the death of Shiv Sena chief Bal Thackarey. However, Section 69A of IT Act, 2000 gives considerable powers to State to direct any intermediary to block public access of objectionable information or content in the national interest or to avoid breach of national security or religious or social harmony or to avoid occurrence of any crime.
The thorny part in the entire issue is the global presence of the internet and social media, which makes it difficult to control, regulate and fix accountability for material uploaded from abroad and viewed in India and the absence of the physical presence of the intermediaries in India.
Last year, i.e., on July 26, 2018 while speaking on “Calling Attention Motion” discussion in Parliament, on “Rising incidents of violence and lynching in the country due to misuse of social media platforms”, IT Minister Ravi Shankar Prasad had unveiled the Government’s proposal to amend the provisions of Section 79 of the IT Act, 2000 to ensure that the intermediaries (social media platforms) have physical presence in India so that they can be meaningfully brought under Indian law to enable and mandate the online intermediaries to trace the source of origin of fake news and malicious messages which destabilise social order, national security and incite crime and violence.
The necessary takeaway is that, the Government’s intent in bringing the change in law to contain the inherent malice in social media transactions is bona fide but nonetheless, it is not completely free from the issues raised by the rights activists, who have concerns and suggestions equal to that of UN’s Special Rapporteur David Kaye’s report on ‘Promotion and Protection of the Right to Freedom of Opinion and Expression’, submitted on October 9 this year.
In the report, he has been highly critical of various world Governments’ attempt to promote proxy social media censorship via intermediaries especially in the pretext of containing hate speeches.
The jurisprudence behind freedom of speech and expression is so robust that it at times has taken toll of justice itself, which requires a reasonable moulding and restriction to harmoniously accommodate varying social interests, especially on social media platform.
(The writer is a lawyer. He can be reached at sjyotiranjan3@gmail.com)