India’s struggle against social media websites to fall in line with Indian laws continues even in Narendra Modi’s regime. To make the matter worst we have no social media laws in India or any effective and implementable social media policy of India. Of course, a new framework for use of social media by governmental organisations has been suggested by Indian government in the past but that is of little help in solving the present problem at hand. The real solution, according to Praveen Dalal, is formulation of a techno legal framework that can address the diverse and complicated issues of cyberspace in India.
The problem is going to increase with the adoption of technology driven projects and initiatives like Digital India, Internet of Things (PDF), etc that intends to ensure e-delivery of services in India. Social media websites have been given a push by the recent Supreme Court’s judgement that struck down (PDF) Section 66A of Information Technology Act, 2000 as violative of freedom to speech and expression.
However, Supreme Court committed a big mistake in this regard as it unintentionally and innocently killing the cyber law due diligence requirements (PDF) for social media websites as well. There is an urgent need on the part of Indian Supreme Court to review this judgment as we need a stronger cyber law due diligence in India rather than a weak, ineffective and crime supporting regime. Now even genuine victims of cyber bullying, cyber crimes and sexual offences are left with almost nil remedies. We at Perry4Law’s Techno Legal Base (PTLB) believe that this judgment of Supreme Court must be immediately reviewed in public interest.
At the same time PTLB also recommends that a dedicated law for social media websites is need of the hour. This must include a stringent and clear Internet intermediary liability for various technology companies and platforms that are operating in India or providing their services in India. Bot the Supreme Court and Indian government have failed to appreciate the gravity of this situation and this has unduly favoured such social media websites in India. The liability of Internet intermediaries under the recent Copyright Amendment Act, 2012 (CAA 2012) needs to be revisited as well. The liability of Internet intermediaries for copyright violations is still poorly drafted that needs to be corrected immediately to strengthen and give effect to the national litigation policy of India.
Conflict of laws in cyberspace is another area that Indian government must keep in mind. For instance, intellectual property rights protection of entertainment industry of India on internet, cyberspace and in a digital environment is still neglected by Indian government and social media websites. International legal issues of cyber attacks, cyber terrorism, cyber espionage, cyber warfare and cyber crimes are also not easy to manage and they must be managed properly by India. Cross border cyber crimes are very difficult to trace and authorship attribution of such cyber crimes are even more difficult to prove.
Even international law enforcement collaborative efforts like Mutual Legal Assistance Treaty (MLAT) are not always followed by concerned country. Recently United States refused to serve summons upon U.S. websites including Facebook and Google. This process of serving summons upon U.S. websites through U.S. government was adopted as the Indian subsidiaries of these foreign companies took the defence that they are just sales outlets in India and nothing more. To meet this challenge Indian government has now declared that foreign companies and e-commerce portals would be required to register in India and comply with Indian laws.
However, the problem of law enforcement agencies continues as it is. For instance, recently the Delhi Police was able to get the IP Address logs of Amrita Rai’s G-Mail account. But till the time Google responded back, much of the digital evidence has already been lost and it is very difficult to nab the culprits now. Similarly, the case of posting of offensive message upon Facebook by the miscreants regarding Rajnath Singh’s Son also hit a roadblock so far. There are numerous such cases where the accused and cyber criminals cannot be nabbed because the social media website either does not comply with Indian laws or they take such long time that the information provided by them is ultimately useless.
Recently a fake tweet on Prime Minister Narendra Modi was posted on the social media website but the culprit has still to be brought to the books. The Delhi Police’s cyber cell department is also unable to do much in this regard in the absence of cooperation from the social media website. This is hampering the police investigation in this case. Similarly, it took two years to get Twitter’s law enforcement team to act on a complaint filed by current finance minister Arun Jaitley in 2011 about a fake Twitter handle in his name. This shows the level of cooperation by social media websites to Indian law enforcement official’s requests.
“Initially, we tried to reach out to every social media website to establish channels other than the already existing norms but we haven’t been successful in our attempt,” said BK Singh, deputy commissioner of police, Economic Offences Wing (EOW). “Sometimes websites refuse to give information on various grounds, including freedom of speech because some activities are considered criminal in India and may not fall in the category of offences in other countries,” said an investigating officer of the cyber cell. It is high time that social media websites must be made amenable to Indian laws and their compliances.