Laws are rules and regulations that govern the working of a society. They form an integral part of governing society and providing people with their rights, duties and responsibilities. Laws are supreme and do not exempt anyone, even the ruling government. They are essential components of society’s existence; hence, they need to evolve when society evolves. They cannot remain static with the progression of the people. The evolution of laws can be seen even in the sources of law and their development. The sources have transcended from primarily customs and religious practices to precedents and legislations.
With the onset of social media, people of all ages ranging from toddlers to senior citizens, are seen accessing the internet and being in touch with the happenings worldwide. Technology is an ever-changing concept that people have learned to embrace and accept. People now adapt to technological developments in time, as seen in the increased discussions on ChatGPT. People are eager to learn about the sophisticated aspects of any form of technology. They are keen to try new things and incorporate updates in their lives. This can be seen especially in a country like India, where people have adapted to UPI and cashless transactions; everyone around the country, educated and uneducated alike, is scanning QR codes to make payments.
If laws remain stagnant while the people progress, they lose their importance and relevance in society. The purpose of laws have, of governing the people and providing them with regulations to ensure orderly living is lost when they cannot keep up with the changes around the world, but the people can. If India had kept all the same laws the British colonial powers had set for India as a colony, Indians themselves would have no rights. Everyone is using social media in this day and age. Everyone is curious about what others are up to and wants to remain connected. Social media has become a necessity that helps individuals enhance their connectivity. Statutes like the Indian Penal Code 1860 and the Indian Evidence Act are colonial statutes. However, they must be repeatedly amended to accommodate changes over the years and ensure order.
Like most things we use, social media has its boons and banes. It has become a necessary evil that is used for crime and good. Anything in excess is wrong, and with the 24/7 connectivity people have all around the world, the use of the internet has become an excess. In the absence of laws to govern the working of social media, people are in danger of being victims of crimes. Cases of fake profiles reached a high of 400 in 2022 in India, and 1318 cases of debit and credit card fraud were reported in the country in 2022. The absence of punishments for crime online would only result in an unprecedented rise in these crimes because of the lack of fear. Laws help ground people to reality and provide a check on their actions.
Regarding social media, a significant issue to address is the right to Privacy of users. While users have an idea as to what personal information they are releasing into the internet, some personal data is unaccounted for and can even result in a physical crime. The cyber-world can not only be used to commit cyber crimes but also to commit conventional crimes. India did not have much clarity or scope on privacy as a right till 2017 when the landmark judgment of Justice KS Puttaswamy v Union of India[1], where the nine-judge Supreme Court bench held that the Right to Privacy should be included within the ambit of Fundamental Rights and be a part of Article 21 of the Indian Constitution – the Right to Life and Personal Liberty. This is not an absolute right and is subject to state intervention. Information provided to and retained by social media intermediaries does not have a trail, and users do not know where the data is being used. India also has provisions within the Information Technology Act 2000 for protecting privacy. Section 43(A) requires all intermediaries that store personal data in computer resources to have and maintain security procedures. Failure to do so would require the intermediary to pay damages to the affected individual. This section has to be read with the SPDI Rules of 2011, which provides a definition for ‘personal’ and ‘sensitive’ information. Although these rules do not cover users’ personal information, they cover privacy concerns more than sensitive information. Section 69A of the aforementioned act gives the Government of India the right to block public access to certain websites or intermediaries in a computer resource under specific grounds. This was the provision used by the Union Government of India to ban TikTok across the country in 2020. The absence of protection of personal information led to the introduction of the Personal Data Protection Bill 2019, which has not been passed or given the force of law yet.
The governance of privacy policies that social media intermediaries impose on their users can be seen in the Whatsapp case itself. The Delhi High Court, in Karmanya Singh v Union of India[2], allowed the transfer of personal data from Whatsapp to its parent company, Facebook, in 2016 but only after the specified date of 25th September 2016 and all the data transferred before had to be deleted.
In the international context, the first aspect to consider is the stages countries are at with having legislation for data privacy, given how fresh the idea is. 71% of countries have passed legislation, 9% have draft legislation pending, 15% do not have legislation, and the remaining 5% have no data available for the same[3]. Existing international frameworks include the European Union’s General Data Protection Regulation 2016 (GDPR) which set global standards for data protection and provided comprehensive regulations for the same. The OECD Privacy Principles acted as the base document which the GDPR was built upon. Article 5 of the GDPR is where the core international principles for data protection are enshrined.
Apart from the issues pertaining to privacy relating to social media, another aspect to be addressed is the freedom people get from excessive access to the world. Everyone now uses their social media handles to voice out their opinions on everything around them freely. People now use social media to rally others worldwide against social issues. Twitter has become an instrument via which people vent their frustrations about severe things like government issues. There is an increased amount of awareness. People rely on the internet for their news sources.
It is much easier to gather support and use social media for good causes like war recovery, humanitarian and financial aid for post-war recovery, promotion of peace, and social issues like racism and sexism that people face daily but went utterly unnoticed before. A prime example of this is the #BlackLivesMatter movement that prompted the world to raise their voices against the unjust treatment of people solely because of their skin colour. This is also why the cause of feminism has been championed so much, and unprecedented amounts of awareness have spread. The right to freedom of speech and opinion provided under Article 19(1)(a) of the Constitution of India is one right that the people are fully exercising with the onslaught of these platforms.
Many boundaries need to be laid out clearly because while the right is a fundamental right, it is also subject to reasonable restrictions imposed by Article 19(2). Some things like the state’s sovereignty, security, defamation, foreign relations with other states, etc., cannot be overlooked while one speaks. With social media, this is a grey area. There is no accountability for what people say online. There is no way of tracking every statement made. The tracking of personal information to reach a person who made a comment online has not been declared legal or illegal yet because it borders on the invasion of privacy of the individual. Section 66A of the Information Technology Act 2000 punishes any person who sends through a computer resource or communication device any information that is grossly offensive or with the knowledge of its falsity; the information is transmitted to cause annoyance, inconvenience, danger, insult, injury, hatred, or ill will. In Shreya Singhal v Union Of India[4], the primary issue at hand was the constitutionality of this section. The Court had to decide whether this provision violates one’s right to freedom of speech and expression. The petitioners claimed the law was unconstitutionally vague because the prohibitions that had been imposed had not even been defined. This case garnered a lot of media attention because it led to the revoking of Section 66A and brought the concept of sedition into question.
Political opinions are not where people stop. They spill into judicial decisions. In the post-pandemic world, courts have gotten into a hybrid system wherein the proceedings are streamed online for public access. This is another example of how laws and the legal system adapt to the changing world. The court system that originated in colonial times is now available on the internet, which is significant progress that needs to be acknowledged. Access to case lists and hearing dates has all been made convenient for advocates by having a provision to find them online. While these are the positive aspects, there are many negative ones as well.
Judicial decisions are brought into question online. There is no fear of contempt of Court and no boundary line. People say what they assume to be true without understanding the facts in a given case and assume they are in a position to comment. Societal awareness is good, but the blind following of people speaking in a big group does not make it right. Many people saying something is not reason enough for it to be correct. Speaking with no actual knowledge of the law is prevalent in the field and can be seen in every field with the widespread use of social media. Twitter has become a medium for people from all arenas to comment on things unrelated to them.
Widespread disagreement can lead to positive outlooks and changes in the judiciary, but there is a way in which things are done. Judicial decisions cannot be overturned by public opinion. Public Interest Litigations are an effective way to bring out change and should be used for effective change. While social media can raise a lot of awareness, real change can only be brought about by following the prescribed procedure. Change is constant, and while red tape can hinder fast-paced change, it is as much a necessary evil as social media itself. Positive awareness is essential, especially in the case of countries like the United States of America, where they entertain class action lawsuits, but in a standard law system like India, to bring about effective results, making noise online might not work.
[1] Justice KS Puttaswamy v Union of India (2017) 10 SCC 1
[2] Karmanya Singh v Union of India (2017) SCC Online SC 434
[3] Data Protection and Privacy Legislation Worldwide, United Nations Conference on Trade and Development
[4] Shreya Singhal v Union of India AIR 2015 SC 1523
Author: Ektha Vivekanand
Juris Centre 