Pre monitoring content on social networking sites is a subject matter of debate. Kapil Sibal talks about such an action and one could say with some bit of confidence that it is something that has not been accepted by one and all, leave alone being taken in the right spirit.
The question is do we need further monitoring of the social media when laws are already in place or is it time India deals with bigger challenges such as cloud computing for which there are absolutely no laws in place.
We have an IT Act in place which came into existence in the year 2000. It is considered to be a mother legislation dealing with all data and information in the electronic form as also the use of computers. This law already has in place certain provisions. These were further amended in the year 2008. After the amendment Section 66 (A) of the amended IT act provided for a very wide offence pertaining to electronic/online defamation. This is made an offence punishable with 3 years imprisonment and fine.
Pavan Duggal, an expert on cyber laws and also an advocate in the Supreme Court who is opposed to the idea put forth by Sibal says we already have enough and more laws in place. While Section 66 (A) deals with these aspects there is also Section 67 of the IT Act which states publishing and transmission of seen electronic information is made out to be a crime. This section is also wide enough to incorporate content that is defamatory or appears to the prurient interest or the effect of which is to tend to deprave and corrupt the minds of those who are likely to see read or hear the same. This is another broad category of offence attracting 3 years of prison or Rs 5 lakh in fine. However today after the amendment the offence has become a bailable one.
Further under the IT Act the government has implanted the rules of 2011 April. These rules provide a mechanism for disabling access to defamatory content and other illegal content. Any affected person can complain to the service provider or government can notify to the service provider about the same. The service provider is mandated to act with 36 hours failing which the service provider becomes also a co accused and a co abettor and could face civil and criminal exposure under IT Act and also the Indian Penal Code.
Rajeev Chandrasekhar, Member of Parliament points out that if Kapil Sibal and Co were really serious about protecting people from defamation on the net, they would first of all read the IT act – there is a section there that allows a victim to legally pursue his/her claim of defamation – its a strong legal provision – and after reading it and understanding it they would then ensure they run a public awareness program – so that victims can then pursue their cases on their own.
This man is a lawyer and he hasn’t read the laws that exist? Are we destined to be governed by people who don’t read, don’t understand and only pander to fears and vote banks and rely on spin/obfuscation as their only tool? :
Duggal further adds that we already have a mechanism in place. Now after the amendment we have in place a few categories designed as intermediaries under Section 2 (1) of the IT Act. This is very vast to include all social media service providers. Under Section 79 of the IT Act, these social media companies are mandated to do due diligence while discharging their obligations under the law. Further they are also mandated to comply with rules and regulations
Once we have this in place, where is the logic for further regulations of social media. Further any kind of regulation of social media is likely to have a prejiducial impact upon the freedom of speech and expression. Now the minister has talked in terms of pre monitoring content which is an extremely difficult exercise given the continuously growing size of social media. Today there more than crores of messages and tweets per day are generated by all social media platforms from India alone. Pre monitoring all such content is not only technologically but also humanly impossible. When you look at laws across the world almost all laws have touched on the aspect post publication period. Once material is published it could be taken down and the author prosecuted. None of the laws talk of the pre publication phase. This is because it not only spells death knell of real time communication, but also that the same is not even warranted by laws of countries in the actual world. Today almost all across the world the speeches or what is spoken is not pre monitored. Hence what is not done in the actual world cannot also not be done on the internet.
There is an inherent flawed approach. Further such an exercise is likely to impact the privacy rights of citizens. Rather than amending the law and making it more in sync with the current level of technological development, the minister is talking about over regulation of social media which even the main legislation does not speak about.
With cloud computing now coming in the law needs to be beefed. Rather than beefing the law we are thinking in another direction.