Scholarly Research Journal'S ISSN 2319-4766 SJIF IMPACT

Scholarly Research Journal'S ISSN 2319-4766 SJIF IMPACT FACTOR 5.403

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Department of Commerce, University of Mumbai, International Conference EPIOC-2017


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139 Legal Liabilities and Obligations on Networking Sites- Vaishali Anuj Ghodeswar

Dr. Shreedhar Mundhe 917-922

140 Challenges Ahead Of Post Office Savings Bank – A

Review

Prof. Niveditha Shetty 923-925

141 Rural Tourism: It‘s An Alcove That India Can Offer Dr Malathi Iyer 926-930

142 Study Of Fact Sheets Of Mutual Fund Companies – An

Important Tool For Prosperity Of Investors. Ms. Fleur Peter D‘souza

931-938

143 Challenges Of Child In The Modern Era With Special

Reference To Child Labour In India Asst. Prof. Purba Ganguly

939-943

144 The Study Of Internal Audit System And Its Application

In Corporate And Non-Corporate Entities Ms. Kajal Kumari 944-950

145 Banking Sector In India: Challenges And Opportunities. Dr. Arun Gaikwad

Mrs. Anuradha C. Hastak 951-957

146 Opportunities And Challenges In Indian Economy

Through Startup India

Jyoti Bansal

958-963

147 Role Of Entrepreneurship In Economic Development Vijayta 964-966

148 Cashless Society: Drive‘s And Challenges In India Devender Singh 967-975

149 An Analytical Study Of CSR Practices Of Indian

Commercial Banks In Strengthening Women

Empowerment

Dr. Dalbir Singh Kaushik

976-983

150 Management Education In India: Opportunities And

Challenges Ms. Taqdees Rehan Pawaskar 984-989

151 Does Risk In Stock Represent Risk In Business? Dr. Nishikant Jha

Mrs. Archana Khemka

990-994


917 Department of Commerce, University of Mumbai, International Conference EPIOC-2017

LEGAL LIABILITIES AND OBLIGATIONS ON NETWORKING SITES

Vaishali Anuj Ghodeswar,Assistant Professor, Nagindas Khandwala College of Commerce ,Arts and

Management Studies

Dr. Shreedhar Mundhe,Assistant Professor, Department of Law, University of Mumbai,Fort

INTRODUCTION

A social networking service (also social networking

site ,SNS or social media)is an online platform that

is used by people to build social networks or social

relations with other, people who share similar

personal or career interests ,activities,backgrounds

or real –life connections.The variety of stand alone

and built-in social networking services currently

available in the online space introduces challenges.

It seems that everyone is a member of a social

network these days. Whether it's your kids on

MySpace and Facebook, or your colleagues on

LinkedIn, people are taking advantage of these new

online meeting spaces to make friends,

communicate and expand business opportunities.

But what are the legal obligations that arise out of

the use of social networks, both for the user and the

sites themselves? The law in this area is still

relatively unsettled and constantly changing, but

some recent developments have created intriguing

precedent, and legislation in motion promises to

keep things interesting for the foreseeable future.

The main types of social networking services are

those that contain category places (such as former

school year or classmates), means to connect with

friends (usually with self-description pages), and a

recommendation system linked to trust. Social

network services can be split into three types:

socializing social network services are primarily for

socializing with existing friends (e.g., Facebook);

networking social network services are primarily for

non-social interpersonal communication (e.g.,

LinkedIn, a career and employment-oriented site);

and social navigation social network services are

primarily for helping users to find specific

information or resources . A study reveals

that India has recorded world's largest growth in

terms of social media users in 2013.A 2013 survey

found that 73% of U.S. adults use social networking

sites.

Role of social media in business and consumer

market in India cannot be undermined. It is the

change in consumers‘ behavior that is changing the

role of social media in India. With time, use of

social media has seen a drastic change from just

used for fun to fun plus knowledge and marketing.

For business purposes, Facebook is the most

important social media platform as there is

customers‘ engagement, followed by Twitter,

YouTube and blogging. Social media is used by

brands to build communities for interaction and

spreading news.

Advantages and Disadvantages of Social

Networking

Social networking is a relatively new advancement

in technology. They are different platforms or

websites that people can create personal profiles,

share pictures, videos, and text updates to their

friends, family, and people from all over the world.

News, trends, videos, pictures, and just about

anything else can go ―viral‖ in a matter of hours,

which makes you wonder, what is all of the craze

about? It is very easy to get carried away with the

attention and interactions you can have twenty four

hours a day on websites like Facebook, Twitter, and

Instagram, but what are the pros and cons that these

social networking sites are having on our society?

The Pros of Social Networking

http://technology.findlaw.com/modern-law-practice/social-media.html



https://en.wikipedia.org/wiki/Facebook

https://en.wikipedia.org/wiki/India



1. Staying Connected

2. Finding People With Common Interests

3. Invaluable Promotional Tool

4. Information Spreads Incredibly Fast

5. Helps To Catch And Convict Criminals

The Cons of Social Networking

1. Perpetuates False And Unreliable Information

2. Causing Major Relationship Problems

3. Cyber Bullying Is A Growing Problem

4. Used To Profile and Discriminate In The Job

World

5. The Addiction Is Real

Laws Pertaining to Social Networking Sites

The two most important statutes to consider when

discussing the legal liabilities and obligations of the

social networking sites are Section 512(c) of the

Digital Millennium Copyright Act and Section

230 of the Communications Decency Act.

Section66A.of IT Act: Punishment for sending

offensive messages through communication service,

etc.

Any person who sends, by means of a computer

resource or a communication device,—

(a) any information that is grossly offensive or has

menacing character; or

(b) any information which he knows to be false, but

for the purpose of causing annoyance,

inconvenience, danger, obstruction, insult, injury,

criminal intimidation, enmity, hatred or ill will,

persistently by making use of such computer

resource or a communication device,

(c) any electronic mail or electronic mail message

for the purpose of causing annoyance or

inconvenience or to deceive or to mislead the

addressee or recipient about the origin of such

messages,

shall be punishable with imprisonment for a term

which may extend to three years and with fine.

Explanation.— For the purpose of this section,

terms ―electronic mail‖ and ―electronic mail

message‖ means a message or information created

or transmitted or received on a computer, computer

system, computer resource or communication

device including attachments in text, images, audio,

video and any other electronic record, which may be

transmitted with the message.

Supreme Court strikes down Section 66A of IT Act

which allowed arrests for objectionable content

online

The Supreme Court declared Section 66A of

Information Technology Act as unconstitutional and

Struck it down.

This section had been widely misused by police in

various states to arrest innocent persons for posting

critical comments about social and political issues

and political leaders on social networking sites.

The court said such a law hit at the root of liberty

and freedom of expression, two cardinal pillars of

democracy.

http://codes.lp.findlaw.com/uscode/17/5/512

http://codes.lp.findlaw.com/uscode/47/5/II/I/230



http://timesofindia.indiatimes.com/india/Supreme-Court-strikes-down-Section-66A-of-IT-Act-which-allowed-arrests-for-objectionable-content-online/articleshow/46672244.cms





The court said such a law hit at the root of liberty

and freedom of expression, the two cardinal pillars

of democracy. The court said the section has to be

erased from the law books as it has gone much

beyond the reasonable restrictions put by the

Constitution on freedom of speech. The Supreme

Court said section 66A was vaguely worded and

allowed its misuse by police.

The court, however, upheld the validity of section

69B and the 2011 guidelines for the implementation

of the I-T Act that allowed the government to block

websites if their content had the potential to create

communal disturbance, social disorder or affect

India's relationship with other countries.

However, the court watered down section 79 of the

I-T Act making it further difficult for the police to

harass innocent for their comments on social

network sites.

Objectionable Content:

Defining ―objectionable content‖ as a broad

category under the law would not be beneficial, for

two reasons.

First, in order for freedom of expression to be

criminalised, it is not sufficient that content is

merely ―objectionable‖ in the eyes of the public.

Important social changes such as those advocated

for by India‘s social reformers of the late nineteenth

and early twentieth century were possible only

because of this recognition. It is precisely where we

have strong disagreements about dearly-held habits,

practices, beliefs and values that the protection of

freedom of expression matters the most: the right to

shock, offend and disturb is integral to the right to

freedom of expression, not contradictory to it.

Article 19 (1) of the Constitution of India

recognises the right to freedom of speech and

expression. Article 19(2) provides for a number of

grounds for imposing reasonable restrictions on this

right. These are the interests of the sovereignty and

integrity of India, the security of the State, friendly

relations with foreign States, public order, decency

or morality or in relation to contempt of court,

defamation or incitement to an offence. Only

content that falls within these parameters as

authorised by law could legitimately be considered

―objectionable‖.

Rather than defining a new category of

―objectionable speech‖, what therefore would be

useful is to assess all of India‘s laws and policies as

they relate to freedom of expression against these

standards set by the Constitution. This would ensure

that the distinction between content that is socially

objectionable and that is legally objectionable

remains firmly in place, as it should be. It would at

the same time also help to ensure that the

Constitution is operationalised as intended by its

authors

In addition, however, and with this we come to our

second point, the Supreme Court of India has ruled,

in line with the three-part test provided for in

international law, that any restrictions must not be

excessive or disproportionate. Where public order is

used as a ground to restrict speech, it has stipulated

that this means that there needs to be a ―proximate

and reasonable nexus between the speech and the

public order‖. This means that the definition of

content that is ―objectionable‖ in a legal sense can

never be static: what is excessive and

disproportionate is situation-dependent.

Indeed, while it is often difficult to provide precise

definitions even for categories of expression that are

widely considered to be illegal, such as incitement

to hatred, it is possible to establish thresholds that

are robust and high and thus allow for the effective

application of reasonable restrictions while

minimising the chances of abuse or arbitrary

application of national legal standards for political

reasons or otherwise. The higher the threshold and

the more precise its wording and conceptualisation,

the more effective the application of the law.

New Challenges

In a world where, Facebook, Twitter and Instagram

have become everyday places to hangout, the



consequent responsibility of using these platforms is

still evolving. As the internet and mobile

penetration increases in India and brings more first

time users onto these platforms, the dangers of mass

hysteria or communal reactions spreading with

serious consequences, increases manifold.

Therefore, it is imperative for the government to get

together all stakeholders of civil society and try and

address the issue of balancing media freedom with

media regulation.

In any free society, this is a sensitive subject that

will result in an uproar of opposition to any kind of

curbs or regulation, but the problem is that all

societies are not equal and therefore each society

will have to evolve its own mechanism to address

the negative consequences of a free social media.

The Indian government recently blocked the

internet and social media for a day during the Patel

agitation in Gujarat. They did the same thing in

J&K on Eid this month as a preventive measure.

While Gujarat was more or less peaceful, in J&K,

despite the ban, there was violence and clashes with

the police. The situation could have been much

worse had internet and social media been

accessible. There are enough vested interests out

there waiting to take advantage of moments like

these and it‘s the government‘s responsibility to

deal with it.

The Above graph shows the effect of Networking

site on political views.The Internet has undoubtedly

posed new challenges for balancing the right to

freedom of expression on the one hand and the right

to equality or non-discrimination on the other.

Regardless of their national origin, social, ethnic,

caste or religious background, disability, gender or

sexuality, every single person has the same dignity

and should enjoy the same rights. While overall,

freedom of expression facilitates the exercise of

other human rights, it is clear that the new

possibilities for free speech provided by the Internet

have also been used to undermine people‘s human

rights. Seeing the speed and scale with which

messages can spread on the Internet, the question of

under which conditions freedom of expression can

be legitimately restricted has consequently been

raised with renewed urgency and concern. It is

important to underscore at the outset, however, that

freedom of expression remains one of the essential

foundations of a democratic and pluralistic society.

While this right can be restricted in exceptional

cases, it has to be remembered that overall, freedom

of expression facilitates the exercise of other human

rights. Fighting against hate speech, or for equality,

and strengthening freedom of expression are, thus,

not simply compatible with each other; instead, they

exist in an affirming, mutually reinforcing

relationship as they make complementary yet

essential contributions to the securing and

safeguarding of human dignity.

Are Cyber laws in place to address all kinds of

evolving situations?

The answer is no. Social media has been gaining

popularity since the last 8-10 years but the

government‘s response has been far from

satisfactory. There are several issues that are related

and need to be addressed. At an individual level,

there is a thin line between freedom of speech and

someone using social media to tarnish another

person‘s reputation, business or livelihood. Then

there are issues of privacy of individuals and also

right to information, all of which needs to be clearly

defined and laws written to address all related

issues.

In terms of social media content, where do you

draw a line between what is freedom of speech and



what comprises derogatory, seditious or communal

content? What may seem acceptable to one part of

the country may be completely unacceptable to

another part? Again, what is seen to be acceptable

to urban citizens may not be socially acceptable to

the rural folk. And, it takes just one upload to go

viral and trigger a violent reaction. These are very

real issues and the government is yet to respond to

these emerging threats with the urgency that it

should.

Time for government to define Cyber Security Laws

and Cyber Management policies, on priority

With the world getting increasingly connected

through the web and India on the cusp of a ‗Digital‘

revolution, the government must take up

establishing clear cyber security laws and cyber

management policies on an urgent basis. As on June

2015, there are already 213 million mobile internet

users in the country and the numbers are increasing

rapidly. Social media could work as a development

catalyst or could become a national threat. The

government must act now and fast before this

dinosaur turns into a Jurassic Park.

Conclusion

Because the right to freedom of speech and

expression is a foundational pillar of any

democracy, stifling the free flow of expression and

information by criminalising it can be legitimate

only in the most exceptional of cases. It is

recommended that Section 66A of the IT Act be

repealed, or at the very least modified

extensively, as it does not adhere to the high

standards laid down in this regard by India‟s

Constitution, India‟s Supreme Court and

international human rights standards.

What is pointed out most commonly is that section

66A‘s broad and vague wording leaves it open to

arbitrary application and hence misuse,

consequently leading to a chilling effect on free

speech. We argue that this problem is constituted by

three more concrete aspects in particular.

First, as noted above, Article 19(2) of the

Constitution of India provides for a number of

grounds for imposing reasonable restrictions on this

right. These are the interests of the sovereignty and

integrity of India, the security of the State, friendly

relations with foreign States, public order, decency

or morality or in relation to contempt of court,

defamation or incitement to an offence.

With this, the Indian Constitution broadly reflects

international human rights standards. Under these

standards, restricting speech can be considered a

necessary and proportionate measure only when

the speech in question presents a serious danger

for other people or for other human rights6.

The current framing of section 66A goes well

beyond this brief, as it also criminalises speech that

is ―grossly offensive‖ or that aims to merely cause,

for example, ―annoyance‖, ―inconvenience‖,

―obstruction‖ or ―ill will‖. As none of these

instances constitute a serious danger for others or

for human rights, their criminalisation cannot be

considered legitimate under any circumstances.

Second one Indeed, as it includes several grounds

for restriction that do not have a parallel provision

in the Indian Penal Code (e.g ―menacing‖,

―annoyance‖, ―inconvenience‖), section 66A in

effect creates new offences in each of these

cases. Such offences can come into existence,

however, only when speech is expressed online. If

annoying or inconvenient information is published

offline, it remains outside of the ambit of Indian

law, as it should be in all cases.

Where similar criminal offences do exist elsewhere

in Indian law, section 66A in some cases (e.g.

criminal intimidation) provides a higher penalty,

again indicating that freedom of expression online is

treated with a different yardstick than freedom of

expression offline in India. Moreover, where

section 66A repeats existing offences, it also does

so without incorporating “the legislative and

judicially evolved checks and balances guiding

their interpretation to specific acts as also

https://internetdemocracy.in/reports/regulating-social-media-or-reforming-section-66a-our-recommendations-to-the-law-commission-of-india/#fn:6



guiding prosecutions, including the existence of

ingredients of the offence warranting invoking the

law as well as the safeguards and exceptions which

safeguard the liberties and fundamental rights of

persons alleged to have committed the crimes‖.

Section 66A thus undermines the protection of the

right to freedom of expression that Indians are

accorded in the Constitution and elsewhere in

Indian law in myriad fundamental ways.

Third, the above shortcomings of section 66A are

further compounded by the fact that the section is

cognizable, meaning that the police can make

arrests without requiring a warrant. Leaving to the

police the interpretation of an overly-broad law

to restrict freedom of expression, one which

brings into existence entirely new offences and

does not recall checks and balances for existing

ones, only further aggravates the potential for

inappropriate and arbitrary application of the

law. In the absence of clearly defined thresholds for

criminalisation, police have no yardstick to assess a

situation by but their own.

Because of the far-reaching consequences of

inappropriate applications of restrictions on freedom

of expression, including a possible rippling chilling

effect on free speech, it is therefore advisable that

any law that seeks to impose restrictions on the

right to freedom of speech and expression in

India be classified as a non-cognizable offence.

Finally, by noting section 66A that we are aware

that the Supreme Court is currently assessing the

constitutionality of section 66A and may, in its

ruling, provide for a reading of the section that

alleviates one or more of the concerns that we have

outlined above. However, even then we would

recommend that section 66A is either substantially

revised or repealed altogether by Parliament.

As the Internet has opened up new avenues for

freedom of expression, and will continue to do so

for ever-growing numbers of Indians over the

coming few years, it is important for all users to

know what is and what isn‘t acceptable speech

under the law, so that they can orient their online

behaviour accordingly. Only where the text and the

interpretation of the law closely overlap does the

law provide this important guidance for every day

users. Seeing the importance of the right to freedom

of expression as a foundational right that enables

and supports the enjoyment of other human rights as

well, we therefore hope that our lawmakers will

take up this important responsibility and make sure

that India‘s freedom of expression laws in the

Internet age are intelligible to all to the greatest

extent possible. In the absence of such a correction,

the inappropriate framing of the law can continue to

constitute a chilling factor on free speech even if

our Courts narrow down the scope of the law in its

actual application.


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Scholarly Research Journal'S ISSN 2319-4766 SJIF IMPACT