The term "social media" refers to a set of platforms for sharing and debating information that are based on the internet and mobile phones. It is a platform that combines technology, telecommunications, and social contact to allow people to communicate using words, photographs, videos, and music. Web-based and mobile technologies are employed in social media to convert communication into an interactive discussion.

Social Media can be broadly divided into following categories:

  1. Social networking
    Social networking is an internet service that allows users to form virtual networks with individuals who share similar interests. It has features like as chat, instant messaging, photo and video sharing, and updates, among others. Facebook and LinkedIn are the most popular.

  2. Blogs
    Individual users produce and maintain descriptive material in the form of blogs, which can include text, photographs, and connections to other websites. The option for readers to submit comments on blogs is an interactive feature, and the comment trail may be tracked.

  3. Micro blogs
    Micro blogs are similar to blogs in that they allow users to publish and share material in a limited number of characters (often 140 characters or fewer). Twitter is a microblogging platform that allows users to send and receive messages known as "tweets."

  4. Vlogs and Video Sharing sites
    Video blogs (Vlogs) are websites that primarily employ video as the primary form of content, with text supporting it. You Tube is the most popular video-sharing website on the internet. You Tube is a video live streaming and video sharing website where users may watch, publish, share, and comment on videos.

  5. Wikis
    Wiki is a collaborative website that enables numerous users to create and edit pages on specific or related topics. While a single page is called a "wiki page," the complete connected information on that topic is referred to as a "Wiki." These several pages are connected through hyperlinks, allowing visitors to engage in a complicated and non-linear manner.

  6. Social Bookmarking
    These services let users to save, organise, and manage connections to numerous websites and online resources. Tagging webpages and looking through other people's bookmarks are two ways to interact. Delicious and Stumble Upon are the most popular.

  7. Social News
    These services enable users to upload a variety of news items as well as links to external publications. Interaction occurs by voting and commenting on the things.

  8. Media Sharing
    These services allow one to upload and share photos or videos. Interaction is by sharing and commenting on user submissions. The most popular are YouTube and Flickr.

 

Social Media Regulations in India

Although there is no particular legislation in India that addresses social media, there are various sections under the current so-called cyber laws that can be utilised to seek remedy if any rights in the cyber realm, internet, or social media are violated. The relevant legislations and provisions are described in detail below:

The Information Technology Act, 2000

  1. a)  Under Chapter XI of the Act, Sections 65, 66,  66B, 66C, 66D, 66E, 66F, 67, 67A and 67B contain punishments for computer related offences which can also be committed through social media viz. tampering with computer source code, committing computer related offences given under Section 43, sending offensive messages through communication services, identity theft, cheating by personation using computer resource, violation of privacy, cyber terrorism, publishing or transmitting obscene material in electronic form, material containing sexually explicit act in electronic form, material depicting children in sexually explicit act in electronic form, respectively.

  2. b)  Section 69 of the Act grants power to the Central or a State Government to issue directions for interception or monitoring or decryption of any information through any computer resource in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States, public order, for preventing incitement to commission of any cognizable offence, for investigation of any offence.

  3. c)  Section 69A grants power to the Central Government to issue directions to block public access of nay information through any computer resource on similar grounds.

  4. d)  Section 69B grants power to the Central Government to issue directions to authorize any agency to monitor and collect traffic data or information through any computer resource for cyber security.

  5. e)  Section 79 provides for liability of intermediary. An intermediary shall not be liable for any third-party information, data or communication link made available or hosted by him. His function is limited to providing access to a communication system over which such information is transmitted, stored or hosted. He does not initiate, select the receiver and select or modify the information contained in the transmission. He observes due diligence and other guidelines prescribed by the Central Government while discharging his duties. Again, an intermediary shall be liable in the following cases: 

  6. He has conspired, abetted, aided or induced by threats, promise or otherwise in the commission of the unlawful act.

  7. He fails to expeditiously remove or disable access to the material which is being used to commit the unlawful act, upon receiving actual knowledge or on being notified by the Government.

  8. If any intermediary fails to assist, comply with direction and intentionally contravenes provisions under Sections 69, 69A and 69B respectively, he shall be liable to punishment.

  1. Section 43A provides that where a body corporate possessing, dealing or handling any sensitive personal data or information in a computer resource owned, controlled or operated by it, is negligent in implementing and maintaining reasonable security practices and procedures thereby causing wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the affected person.

  2. Section 70B provides for an agency of the Government to be appointed by the Central Government called the Indian Computer Emergency Response Team, which shall serve as the national agency for performing functions relating to cyber security.

The Central Government has also enacted rules to give effect to various provisions of this Act which are as follows:

The Information Technology (Procedure and Safeguards of Interception, Monitoring and Decryption of Information) Rules, 2009

These rules are made by the Central Government in exercise of its powers under Section 87(2) (y) with regard to the procedure and safeguards for monitoring and collecting traffic data or information under Section 69B (3).

  1. (a)  Rule 3 provides that the interception or monitoring or decryption of information under Section 69 shall be carried out by an order issued by the competent authority.

  2. (b)  Rule 2(d) defines competent authority as the Secretary in the Minister of Home Affairs, in case of Central Government and the Secretary in charge of the Home Department, in case of a State Government or Union territory.

  3. (c)  Rule 4 provides for an agency of the Government authorized by the competent authority to carry out the functions.

  4. (d)  Rule 10 requires the name and designation of the officer of the authorized \agency to whom such information should be disclosed.

  5. (e)  Rule 13 requires the intermediary to provide all facilities, co-operation and assistance for interception or monitoring or decryption of information.

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

These rules are made by the Central Government in exercise of its powers under Section 87(2) (z) with regard to the procedure and safeguards for blocking for access by the public under Section 69A (2).

Rules 3, 4, 5, 6, 7 and 8 contain the regular method of sending request for blocking to the Nodal officer of concerned organization who shall examine it and forward it to the Designated Officer of the Central Government who shall further examine it along with a Committee and then, their recommendation shall be sent to the Secretary, Department of IT for his approval, upon which the Designated Officer shall direct such blocking.

However, Rule 9 grants power to the Designated Officer to take a decision regarding blocking in cases of emergency where delay is unacceptable.

Rule 13 provides that every intermediary shall designate a person to receive and handle directions for blocking of information, who shall acknowledge receipt of the directions to the Designated Officer within two hours of receipt through acknowledgment letter or fax or email.

Rule 10 provides that the Designated Officer, on receipt of a court order directing blocking of any information, shall submit it to the Secretary, Department of Information and Technology and initiate action immediately.

The Information Technology (Procedure and Safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009

These rules are made by the Central Government in exercise of its power under Section 87(2) (za) with regard to the procedure and safeguards for monitoring and collecting traffic data or information under Section 69B (3).

Rule 3 provides that directions for monitoring and collection of traffic data or information under Section 69B (3) shall be issued by an order made by the competent authority.

Rule 2(d) defines competent authority as the Secretary of the Government of India in the Department of Information Technology under the Ministry of Communications and Information Technology.

Rule 3 further provides that the competent authority may issue directions for monitoring for purposes related to cyber security.

Rule 4 provides that the competent authority may authorize any agency of the Government for monitoring and collection of traffic that or information who shall designate a nodal officer to send requisition conveying direction under Rule 3 to the Designated Officer of the intermediary.

The Information Technology (Intermediaries Guidelines) Rules, 2011

These rules are made by the Central Government in exercise of its powers under Section 87(2) (zg) with regard to the guidelines to be observed by the intermediaries under Section 79(2).

Section 2(w) of the Information Technology Act, 2000 defines “intermediary” with respect to any particular electronic records as any person who on behalf of another person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service, network service, internet service, web- hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.

Rule 3 makes it mandatory for the intermediary to inform the users by clearly sating that under the rules and regulations, privacy policy and user agreement, which are published on the website, they are not to host, display, upload, modify, publish, transmit, update or share any information that is objectionable under Rule 3(2)

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

The information technology (Intermediary guidelines and digital media ethics code) rules, 2021 has divided the social media intermediaries into two categories namely: social media intermediary and a significant social media intermediary.

The rules stress on the aspect of due diligence that was to be observed by intermediaries. Apart from this the rules also deal with the safe harbour provisions that are mentioned underneath section 79 of the IT act, 2000. The rules state that an intermediary has an obligation to publish on the application or website, as the case maybe, details regarding the privacy policy of the intermediary, the use of personal data by the intermediary, information and so on. The user agreement or privacy policy instituted by the intermediary should be in such a way so that the user is aware that there is an obligation upon him do not host, display, publish, transmit, modify or store any information which is unethical, Illegal, derogatory, Defamatory to the general public, affects the dignity of an individual, misleading or so on. In addition to this, the intermediary must also ensure that information that threaten the unity, integrity and sovereignty of the nation will not be entertained on its platform. There is also an obligation to notify the users in case such an unethical information is transmitted. An intermediary can call for the removal of the information or deletion of the account if the material transmitted is not in line with the intermediary’s policy.

Intermediaries must exercise caution and be diligent. If an intermediary is made aware that an information is not in line with the rules mentioned under this act, then it must act quickly and remove such information. The intermediary also has an additional obligation to store the information in question for a period of 180 days for the purpose of investigation. If the information that was transmitted is defamatory to a person or provocative, an intermediary is under an obligation to remove that information within 24 hours once the complaint is received.

Intermediaries must institute a grievance redressal mechanism. The intermediary has to publish on its website or application the name of the grievance officer as well as their contact details. Intermediaries must also publish the mechanism by which a user of the intermediary can make a complaint against violation of any of the provisions mentioned under this rule. The grievance officer also has an obligation to acknowledge the complaint within three working days and resolve the same within a span of one month. The rules also talk about the appointment of a chief compliance officer, nodal contact person, and a resident grievance officer. A monthly compliance report must be published by the intermediary and this report will contain the details of all complaints received and all actions taken in pursuance of the said complaints, as well as the details of contents that were removed from the intermediary’s application. The grievance officers instituted under this act must reside in India.

One of the contentious provisions in the rules is the provision dealing with first originator of information. The rules call for the enablement of the identification of the first originator of information as may be required by the order of either a competent authority or a court under section 69 of the IT act, 2000. This is been a point of contention because intermediaries like WhatsApp use end to end encryption to protect messages sent and received by users. In order to identify the first originator of a message, intermediaries will have to disable the end-to-end encryption which poses a challenge to the fundamental right of privacy.

Another contentious point within the rules is voluntary user verification which enables users to verify their accounts voluntarily. An appropriate mechanism must be enabled for users to verify their accounts. Critics argue that this will destroy anonymity in the cyberspace.

While the rules state that any information that is contrary to the provisions of the said rules must be removed, user must also be given an appropriate opportunity of being heard.

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We speak the language of Technology & Internet. We understand how the law interacts with Technology & Internet. Cyber Crime Chambers is a boutique firm specializing in internet laws and digital forensic evidence.

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Karthikeyan.N

B.A., B.L., (Hons) IPDP., (London)
Pgd IPR., Pgd Cyber Law., Msc., (IT)
CCI., CFA., IPCL.,
Advocate, Madras High Court

Karthikeyan, is a renowned cyber law expert, who is also the Managing Partner of Law Office of Karthikeyan, a reputed law firm based in Chennai.

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