SOCIAL NETWORKING SITES VIS A VISFREEDOM OF SPEECH AND EXPRESSION

Karnika SethAdvocate Supreme court of India and Cyberlaw ExpertSpecialised Cyberlaw Training Programme for DPS Indrapuram8 Aug 2013

WHAT IS SOCIAL MEDIA?

Means use of internet and mobile phones to

connect with each other and to exchange views,

news and information by use of applicaton ,

software and technology

DIVERSE SPECTRUM OF SOCIAL MEDIA

Social media

wikis

Blogs , forums

Bookmarking, podcasts

Socialnetworkslike facebook

Videos, music, games

SOCIAL MEDIA IS AN ADDICTION?

Students addicted to Social Media – A study by International Center for Media and Public Agenda, University of Marylandhttp://www.newsdesk.umd.edu/sociss/release.cfm?ArticleID=2144

Australia ranks highest in social media usage in the world. In usage of Facebook, Australia ranks highest, with over nine million users who use almost nine hours per month on the site http://www.socialmedianews.com.au/social-media-stats-in-australia-facebook-blogger-myspace/

India ranks seventh largest social network site visitor-www.oceanofweb.com/india/top-10-social-networking-sites-india.html

Issue of legality of opening a facebook account-age considerations.

STATISTICS ON SOCIAL MEDIA

Facebook is reported to have more than 835 million users in first quarter of 2012-internetworldstats.com.

A recent survey from Jobvite found that 93%of job recruiters tap into LinkedIn to find qualified candidates, up from 87% last year and 78% in 2010. Facebook is used by 66% of the recruiters polled, up from 55% last year. And Twitter is on the watch list among 54% of those surveyed, up from 47% last year. http://www.socialnetworkingwatch.com/all_social_networking_statistics/

PROS AND CONS OF SOCIAL MEDIA

PROS CONS

Accessibility Connectivity Speed Enables business promotion Enhances PR skills Assist law enforcement

agencies Bring national reforms Voice public opinion

Can be a medium of perpetrating crime

Can lead to more hatespeech Can create havoc with content

that provokes public riots Could invade privacy of others Lead to identity thefts and

cheating by personation Can be addictive n decrease

productivity at work

NEW CYBERCRIMESHacking –Section 66

Sending of offensive false messages(s.66A)

Identity theft

(s. 66C)

Cheating by personation (s.66D)

Violation of privacy (s.66E)

Cyber terrorism

(s.66F)

Publishing sexually explicit content(s. 67A)

Child pornography

(s.67B)

Stolen computer resource(s.66B)

Attempt to commit an offence (s.84C)

Abetment to commit an offence(s.84B)

MAINTAIN PRIVATE INFORMATION-ORKUT-ADNAN CASE

FREEDOM OF SPEECH

Article 19 of the Constitution of India Subject to reasonable restrictions Section 499 of IPC- Defamation law Civil and criminal remedy Section 66A of the IT Act,2000-offensive messages Section 66Cof IT Act,2000-Identity theft Section 66D of the IT Act,2000-cheating by personation IT ( intermediaries guidelines) Rules 2011 read with Section

79 of IT Act,2000 Section 63 of Copyright Act-punishment of 6 months upto 3

years and fine of INR 50,000( such as selling pirated videos, audios, images)

FREEDOM OF SPEECH UNDER CONSTITUTION OF INDIA 19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall

have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) omitted (g) to practise any profession, or to carry on any occupation, trade or business (2) 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

Secretary ,Ministry of I&B , Govt of India vs Cricket Association of Bengal AIR 1995 SC 12136- Right to communicate applies equally to print & electronic media

INTERNET CENSORSHIP-ASSAM RIOTS

CARTOONIST TRIVEDI CASE

PIL CONCERNING SECTION 66A OFIT ACT,2000-ARREST OF TWO MUSLIM GIRLS

SECTION 499 IPC-SPEECH VS DEFAMATORY SPEECH

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

first exception-Imputation of truth which public good requires to be made or published

EXCEPTIONS TO SECTION 499 IPC

Second Exception.—Public conduct of public servants. Third Exception.—Conduct of any person touching any public

question. Fourth Exception.—Publication of reports of proceedings of Courts. Fifth Exception.—Merits of case decided in Court or conduct of

witnesses and others concerned Sixth Exception.—Merits of public performance Seventh Exception.—Censure passed in good faith by person having

lawful authority over another. Eighth Exception.—Accusation preferred in good faith to authorised

person Ninth Exception.—Imputation made in good faith by person for

protection of his or other’s interests.

SECTION 66A IT ACT,2000

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; orb)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.

Punishment - Imprisonment for a term which may extend to three years and with fine.

Explanation — For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

SECTION 66C AND 66D OF IT ACT,2000

66C Punishment for identity theft Whoever, fraudulently or dishonestly make use of the electronic

signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

66D Punishment for cheating by personation by using computer resource

Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

LIABILITY OF INTERMEDIARIES

Section 79 of IT Act, IT ( Intermediaries guidelines ) Rules, 2011 Bazee.com case-direct/contributory/vicarious? Observance of due diligence Approach in US and EU and in India Section 230 USC- Zeran v AOL case- Section 230 of

CDA-grants immunity to ISPs for user posting third party materials- like Section 79 of Indian IT Act.

No general obligation to monitor vs self regulatory approach vs national law on social media regulation

SUPER CASSETTE INDUSTRIES V MYSPACE INC,2011 (48) PTC 49 Plaintiff filed suit for injunction restraining copyright infringement and claim for damages.Def no.1 is

social network site Alleged defendants make available on their site infringing songs, videos, pictures, clips, that users

copy and share on internet Authorises free illegal uploading then distributig it through downloading or streaming content to end

users and making profits through ads. Search facility, free uploading, downloading, use of ste’s own software Defendants claimed immunity under Section 79 of IT Act,2000.It reserves right to take down any

infringing material and gives DRM tool to copyright owners who could register on its site .Plaintiff contended ISP is liable for primary infringement. –also permitting their site as place for infringement for their profit Section 51(a)(ii)–reaping profits from ads

Plaintiffs contended defendants have both knowledge and reason to believe infringing material is posted on site.

Court held something more than knowledge is required for Section 51(a)(i) to be attracted.Held, website is permitting place for profit, modifying work with ads put up-did not satisfy due diligence requirement under Section 79 of IT Act,2000.court ruled defendants had ability to control the thirdparty content.

Followed in Vodafone India ltd v M/s R.K Productions PLtd 2013 (54) PTC 149(Mad)- Section 79 not applicable to copyright infringement cases in light of Section 81 that excludes copyright infringement cases.

VYAKTI VIKAS KENDRA V JITENDERBAGGA 2012 AIR (DEL) 180

Suit for injunction –defamatory material posted on www.blogger.com about His Holiness Sri SriRavi Shankar .

Court observed defendant is intermediary within meaning of Section 2(1) (w) and Section 79 of IT Act –directed removal of defamatory links within 36 hrs

LIABILITY OF INTERMEDIARY TO PROVIDE CONTACT INFORMATION OF A BLOGGER/COMMENTATOR

BLOCKING ILLEGAL SITES

Power to block defamatory content-objectionable sites-Section 69A of IT Act,2000

Section 69B- monitor traffic data IT (procedure and safeguards for blocking for

Access of Information by Public Rules, 2009-power with Secy ,DIT

Cyberterrorism under Section 66F of IT Act Section 67 IT Act-obscene tweets or content!! The Wikileaks Saga

POSITIVE EFFECTS

Law enforcement agencies such as police use social media to catch cyberbullies, impose traffic violation fines ,etc

Use of social media in e governance-mumbaipolice launched sms based complaint tracking system, MCD portal

Social media content can be used in legal proceedings as evidence-secondary evidence as per Section 65(d) of Evidence Act

Government plans to use this media to exchange public dialogue in law making

Using Social Media in Emergencies source: www.KerryShearer.com

SOCIAL MEDIA LEADS THE NEWSNashville Flood: Twitter connected people

with critical info, such as closed roads, missing persons, emergency aid stations,

and volunteer opportunities.

BEST PRACTICES ON SOCIAL NETWORKS

Express yourself but not use abusive language Donot invade privacy of others Verify friend/follower requests Check downloads etc for viruses Donot disclose other person or your own sensitive

personal information Communicate with strangers cautiously Use strong passwords and privacy protect features Read terms of use and how your information is

used by service provider before you use a service

BOOK ON CYBERLAWS BY KARNIKA SETH

THANK YOU!

SETH ASSOCIATESADVOCATES AND LEGAL CONSULTANTS

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