Law Commission Media Law Consultation – Panel V, Social Media

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The following is a post by Aman Gupta, a fourth year student at NUJS, covering the fifth panel of the Law Commission’s Media Law Consultation. Aman is currently the Director of the NUJS Society of International Law and Policy, and his areas of interest include Sports Law and Media Law. This post brings forward some very interesting ideas about Social Media Regulation in India, which we will be following up on in future posts.

The Law Commission of India hosted a two day consultation process on issues concerning Media Law in New Delhi on the 27th and 28th of September. The fifth panel of the event dealt with the controversial topic of ‘Social Media’ with regard to Section 66A of the Information and Technology Act (IT Act). The consultation was attended by journalists, academics and students, along with the owners of various websites that have been affected by the application of the provisions of the IT Act.

The panel consisted of Siddharth Luthra, Usha Ramanathan, Karuna Nundy, Geetanjali Duggal, Dr. Gulshan Rai. The moderator for the panel was Pawan Duggal.

At the outset, Mr. Pawan Duggal highlighted the fact there is no unanimity as to what is the definition of ‘social media’; if it meant enterprises like Facebook or Twitter, or individuals who have become global broadcasters in the internet age. Mr. Duggal then drew the attention of the audience towards Section 66A of the IT Act, along with Section 79 and 2(1)(w) of the Act which lays down the liability of the intermediaries. He expressed concerns that the Intermediaries’ Guidelines have the potential to become tools for gagging legitimate free speech.

Mr. Siddharth Luthra, former ASG of India, discussed the need for law-makers to fully understand social media. He highlighted three issues, namely: the efficacy of the legislation with regard to the intermediaries, whether the guidelines and rule 3(2) exceed the mandate of the legislation, and if this constitutes a violation of the freedom of speech. He felt that the law-makers must take stock of the situation, and determine the checks and balances that must be put in place to ensure that the law is not abused. He also felt there were many loopholes and much ambiguity in the IT Act, and that clearer definitions are required. For example, the term due diligence is not defined and it is the power of the government to determine as to how the due diligence must be performed. He suggested that the government should provide a check list containing certain offensive words to the intermediaries, which can be used for the purposes of due diligence. Lastly, he stressed on the importance of a balance between Right to Privacy and the Right to Freedom of Speech and Expression.

Ms. Usha Ramanathan also echoed the concern regarding the understanding and the degree of control extended/exercised over social media. She spoke about how the state and enterprise have much more interaction in social media. She also highlighted that ease of access by people is an important aspect of social media. With regard to the Section 66A, she raised the concern that the idea of ‘offence’ has been made so vast that it is taking away the space for opinions. The requirement for intention to cause an offense does not exist, and there is a ‘death of procedure’ as no recourse is available to the party whose content is blocked. She felt that the law-makers need to get rid of the idea that social media is a place where people are continuously committing offences. She also expressed her concern about the continuous erosion of the privacy principles with the corporation and states asking people to reveal their identities, and felt there needs to be a regulation governing the sharing of data between the state and private entities.

Ms. Karuna Nundy continued where Ms. Ramanathan left and highlighted that Section 66A was extremely broad and ambiguous. She took the example of Section 66A(C) wherein the only requirement to constitute an offence is if the content is ‘annoying’, but it is not laid down as to who decides as to what is annoying or inconvenient. This has led to people being targeted for political reasons, and this also leads to a chilling effect as people become hesitant to say anything due to the fear of being targeted. She suggested an interim solution which is a magistrate deciding if the content was ‘annoying‘, but in the long run, the legislature needs to do away with this section completely. She felt that the requirement of ‘take down’ as prescribed in the Act enforces private censorship as no recourse is given to the people to challenge the order.

Ms. Geetanjali Duggal spoke on behalf of the industry. She distinguished between various forms of intermediaries depending upon the manner of service. She also highlighted that often intermediaries cannot have editorial control over the material being published due to the amount of content. With regard to the IT Act, she drew the attention as to how the Act uses a ‘one fit for all’ method, which is not tenable, and said that the law should be flexible. As for a regulatory authority, she highlighted that corporations have a robust self regulation, and thus, there was no need for a superior regulator.

Dr. Gulshan Rai defended Section 66A and its mechanisms from criticism. He felt that the technology aspect is required to be looked into while preparing any law governing the cyber-space. He also expressed the need for a balance between the freedom of speech and expression vis-à-vis the rights of the victims. He stated that websites refuse to adhere to court orders and thus, this matter requires to be looked at in a holistic manner.

Overall, the panel restricted their scope to the topic of the session, and there was a clarity and distinction about the point of view of the various stakeholders that the panelists sought to address.

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