In today’s scenario where a person’s actual location can be traced, what he is doing, where is he going, whom is he meeting and other activities of his life is monitored, it is not difficult to regulate social media. The control over misinformation, fake news and hate speeches is the need of the hour. Whatsaap and Facebook have found out to the sources of spreading fake news and communal hatred just at the click of the button with negligent or literally no regulation on forwarding and uploading messages and videos which might be very sensitive for people and might also be a triggering point for some. Since India being a religious sensitive country with very dynamic nature and culture it is inhumane to play with the emotions of the people and spread fake news and hate speeches. The opposition in the country and also the people across borders take huge advantage of it, a very recent example was the Delhi riots which took place in February 2020 during President Trump’s visit to the capital where a lot of hue and cry was made and local distress was caused in the city. During the communal  riots various messages, videos forwarded and made viral on social networking sites like Instagram, Twitter, Facebook some of them facts while many other hoaxes to which even the Police various Media houses and news channels requested to not forward any type fake news and instigating videos. In which an IB officer was killed and corpse found on the sewer beside the house a charge sheet was filed by the police related to this which highlighted the role of Islamist Jawaharlal Nehru University scholar Umar Khalid and the radical activists of far left activist group Pinjra Tod. Numerous arrests have been made in this regard as well. In a hearing on the case filed on Facebook and Whatsaap a fast track solution was recommended by the Apex Court by Justice Deepak Gupta and Aniruddha Bose[1] the concern about not being able to track the originator or sender of messages on Whatsaap and Facebook, in which the government needs to step in, though it reminded the government to keep in mind the sovereignty of the people and the privacy in mind.

Although data and social media regulation is the need of the hour and should be implemented as soon as possible but we should also keep on the mind the rights we provide to our citizens and the duty to protect the data of our country within our country, recent changes s we have seen like banning of the 59 Chinese applications by the Indian Government was a very brave  decision by our government which led to the protection of our date and not transferring our information to the  originator of these applications which would be misused and used to hinder our country’s security and integrity which is of utmost important. Moreover the soldiers were even asked to uninstall 89 applications which included all sort of social media handles which they used to socialize with their family members and friends but nothing come before the nation and mother India our citizens are I full support of this movement and have shown their support by willfully boycotting Chinese products and encouraging ‘Make In India” as instructed by the Hon”ble Prime Minister of India.

REGULATORY AUTHORITIES OF SOCIAL MEDIA

The regulatory authorities of social media that governs it are of the following two types.

A.    Statutory/ State authorities

B.   Non statutory authorities

1)      Internet Service Providers

2)      Social Media Agencies

 STATUTORY AUTHORITY

(LAWS WHICH REGULATE THE INDIAN SOCIAL MEDIA)

The Indian social media is very vulnerable and demands the security of its people and their data. Data is of two type’s personal data and non personal data; personal data includes the characteristics, traits and various attributes which are the key ingredients of finding the identity of an individual and non personal data means that data which cannot be used to find the identity of a person. And the Data Protection Bill aims at minimizing the use of individual’s private data so that there is less invasion of their privacy. Since the decision given by Supreme Court in a nine judge bench verdict which includes ‘Right to Privacy’ as a Fundamental Right under Article 21 of the Constitution overruling the judgment given in MP Sharma case 1958 and Kharak Singh case 1961[2]where in both these cases it was held that Right to Privacy is not a Fundamental Right and does not come under Article 21 of the Constitution. The various acts which govern cybercrime and social media regulations are The Information Technology Act, 2000, The Indian Penal Code 1860, The Data Protection Bill and various other acts and bills which provide shelter to the victims and their honour.

The Information Technology Act, 2000

The Information Technology Act, 2000 was introduced by the Indian Parliament on 17 October, 2000. It is the primary law in India dealing with cybercrime and electronic commerce.

Section 66 of the Information Technology Act, 2000 talks about the computer related offences undertaken in section 43 and imposes punishment of about 3 years and a fine of about five lakh or with both. In Kamlesh Vaswani v/s Union of India[3], the petitioner challenged the constitutionality of sections 66, 67, 69, 71, 75 as they are insufficient in restricting the pornographic material on the internet, it was contended by the petitioner that pornography be banned and the material should be made unavailable. Indian Service Providers for Internet Association said that any material cannot be removed from the internet unless orders are received from the government because if one site is removed dozens of other sites stand to cover the material

Section 66 B talks about the punishment for dishonestly receiving stolen computer resource or communication device and that person is aware that the property or the communication device is stolen shall be punished with imprisonment for a term which may be extended for a term of three years or with fine of rupees one lakh or with both.

Section 67 states that any person who publishes or transmits or causes to publish any material in an electronic form which displays the other party to be full of lust and has curiosity of being indulged in any sexual activity and intends to draw that a person is interested in sexual acts shall be at the first conviction  with imprisonment for a term which may extend to three years and with a fine of rupees five lakh  and on the second or subsequent with imprisonment for a term which may extend to five years and fine which may extend to ten lakh rupees. In Aveek Sarkar & Anr v/s State of West Bengal in which a parochial term ‘Hicklin Test’ for determining obscenity and set the ‘Community standards Test’ as the basis of the determination

Section 67 A[4] states that whoever publishes or transmits or causes to be transmitted or published in any electronic form any sexually explicit material or conduct shall be at first conviction punished with imprisonment for a term which may extend to five years wand with fine which may extend to ten lakh rupees and in the second conviction with imprisonment for a term which may extend to seven years and with fine which may extend to rupees ten lakh.

Under section 67 B any sexual activity or electronic material which contain indecent images depicting children in a sexually offensive manner also including any advertisements, texts, downloads exclusively depicting children and includes children to online relationship with one or more children and on sexually explicit act or manner which maybe a cause of offense to a reasonable adult, facilitating abuse of children, recording in any electronic form of own abuse or any explicit content showing children shall be punished with imprisonment on first conviction with a term which may extend to five years and extending to fine of rupees ten lakh rupees and on second conviction or subsequent conviction with imprisonment which may extend to a term of seven years and also with fine which may extend to ten lakh rupees.

THE INDIAN PENAL CODE, 1860

The Indian Penal Code, 1860 is the official criminal code of India the code was drafted on the recommendations of the first law commission of India established in 1834 under the charted act of 1833 under the chairmanship of Lord Thomas Babington Macaulay. It came into force in 1862 during the British raj in India; the code has been amended since then and is now supplemented by other criminal provisions.

In the Penal Code there are various sections which point out towards the misuse of the social media and the relevant punishments applicable on such misuse.

Section 153 A talks about promoting enmity between groups of different religion, race, caste, place of birth, language, residence etc and doing acts prejudicial to maintenance of harmony it includes- whoever by words either spoken or written or by signs visible representations or otherwise attempts to promote, on grounds of religion, race, caste, language or community creates feeling of ill-will, hatred or enmity. Organizes any exercise, movement, drill or other similar activity intending that the ones who participate in these activities should be trained in using criminal force or violence or participating in activities which intend to use violence or criminal force and which can create a false sense of fear or alarm or a feeling of insecurity amongst the members of such religious, racial, linguistic groups shall be punished with imprisonment which may extend to three years or with fine or with both.

Section 468 points out at forging documents or electronic forged documents which shall be used for the purpose of cheating shall be punished with imprisonment of either seven years and shall also be liable to fine. The court held liable two partners for the falling of bricks which led to the death of two nuns, here the partners went into a contract with a constructor by making it appear in a forged document that a fictitious person was a contractor.[5]

Section 509 makes intention to insult the modesty of the woman. When a man intending to outrage the modesty of a woman exposes himself in a indecent manner to a woman he has committed an offence under this section, and will be punished with imprisonment for a term which may extend to three years and will also be liable to fine. A recent such example can be the Instagram conversation in ‘Boys Locker Room’ where conversations about girl’s modesty were held and leaking indecent pictures and making a mockery of them seemed like a very decent concept and a casual conversation, although necessary actions were taken by the cyber cell according to laws and case was filed under relevant provisions.

DATA PROTECTION BILL

Looking at the shortcomings of the IT Act, 2000 the bill introduced by the government promises to fill up the loopholes which cannot be corrected by the act of 2000, the committee was headed by the retired Supreme Court judge B.N Srikrishna. Though the Bill of 2019 was criticized by the original drafter and said that the changes made are very harmful as the government can access the data of the people at any time and it has dangerous consequences based on the sovereignty of the country. Currently the data is regulated through the companies that use the data for compensating the individuals, in case there is any negligence caused while handling their data. The expert committee in its report mentioned that when the IT Act was introduced it was sufficient according to the digitization of the era, but now with digitization changes need to be made. To ensure that there is complete compliance with the bill a Data Protection Authority was set up which had members who are well versed in the field of Data Protection and Information Technology, on non satisfaction an individual can complaint to the authority. Orders of the authority can be appealed to the Appellate Tribunal and further on the appeal will lie in the Supreme Court. While talking about the leverage government will have on a individuals there are also certain restrictions which comes along the bill like processing of personal data only for clear, lawful purposes adding to which the data fiduciaries should take certain transparency and accountability measures like implementation of security safe guards and introduction of a place where the grievances of the people can be entertained certain fiduciaries which deal with sensitive data like ( bio metrics, financial data) etc have to be more cautious and maintain high level security. The data can be utilized with the permission of the person or the consent given by the person, it can also be confirmed by the person whether his data is being utilized, about correctness of his data, correction or erasure of his data as well.

PRIVACY VIOLATION BY SOCIAL MEDIA

Nothing is private is the mantra now a days where people are still figuring out on how to make their posts and pictures private a survey tells us that about 41% of India’s population is still unaware about the privacy settings available on Facebook or any other social networking sites. Even after controlling some privacy related issues they cannot be fully secured since the option of tagging is available to the friends in the list, which makes their picture available for everyone and at the click of the button anyone can access it.

NON STATUTORY AUTHORITIES

Since non statutory authorities have a primary role to play in the regulation of social media, they are very important for the security of the country.

1)      SOCIAL MEDIA AGENCIES

The dominant role players in the social network market is the social media agencies which have control over displaying the person’s feed. Although their choices determine the uploading of the feed, but some updates are criticized by the users like the Instagram update a few years back which was back lashed by the users and it had to revert back to the idea of reading numbers as a source of advertisement.

2)      INTERNET SERVICE PROVIDERS

They have a crucial role to play in the censorship of the content and have an eye out for everybody. Like in China if any misguided information is transfers the ISPs immediately comes into action and the culprit is behind the bars since there is a lot of censorship in China. Some steps are also taken in countries like UK and Sweden, since it is not feasible and also not possible to curb out the originator and sender of each and every text the states have found that it is better to impose liabilities on intermediaries who host, transmit and take place in such offensive tasks. IT Act also provides severe fine on the ISPs if they find that they are incapable of removing content not made for the internet which stands banned from the internet usage of India.

CONCLUSION

  As we all know that excess of anything is bad so is the excess of regulation of social media because the fundamental rights and the sanctity of the Constitution of India needs to be kept in mind, data should be regulated in a controlled and civilized manner by fulfilling the needs of the security and also keeping in mind the rights of the citizens and their protection. Rights, responsibilities and duties of the state authorities, non state authorities and the citizens should be understood by them respectively and there should be a sense of so cooperation amongst everyone. It can also be stated that what is not good for such a diverse society like India is community hate, hate speech and communal rights a monitoring on such tasks is the need of the hour and should be put into force immediately