Facebook and the Law: Nothing ‘Private’ About It

Sharing is life. Enter Facebook. No, I am not beginning to run it down for the simple reason that for all its flaws and ill-effects – if ‘it’ has any of those and not the users – it is a remarkable tool to connect and answers to our most basic need at all times since the Stone Age – collaboration. Yes, ‘collaboration’ is indeed a big, heavy and perplexing word compared to the lightness, breeziness and flippancy we attach to ‘Facebook’. But the desire to connect and stay connected is basically an urge that has its roots in the existential need to stay in groups to improve chances of survival against natural enemies. Of course, we have come a long way from there, but we still exist and live best within the ambit of human societies, howsoever big, small, crude or cultured they might be. Therefore, staying connected is not so much a choice; it’s hardwired in us. So, if the world is drawn to Facebook and Twitter the way it is, it shouldn’t surprise anybody. However, what must be borne in mind at all times is that social networking tools are not a substitute but only an extension of our lives. One’s Facebook personality may be slightly different from one’s real life personality, but it’s not an ‘alternative personality’. It’s just another dimension of your own self. Treating your online personality as different from your real-life persona may not only create social and psychological issues, but also incur legal consequences. And, apparently, people don’t realize the seriousness of any of these.

One of my students – a teenager under 18 years of age – remarked that he did not take his Facebook comments ‘seriously’, and I couldn’t help taking that remark ‘seriously’. And then there was Kapil Sibal trying to shackle and regulate online media drawing considerable criticism from all quarters in the process. I abhor the idea of pre-censorship as much as anybody else, but for all the inappropriateness of approach and motive, what Sibal was asking in principle was for the social media websites to be more ‘responsible’ and ‘accountable’ for the content they hosted. To paraphrase, Mr. Sibal wanted the social networking websites to take what they publish ‘seriously’. Just that he was holding the wrong man by the collar. Facebook, Twitter, Google and the like don’t ‘publish’ the content they display; we do. And if somebody has to be blamed, made accountable and told to take things ‘seriously’, it’s the users and not the hosts.

Certainly, online speech is not free of all restrictions, but is subject to all reasonable restriction imposed by the same laws and regulations that regulate speech and expression in the normal course. It’s also nobody’s case that the social media websites should not act promptly and take the offensive material down forthwith after such a content is brought to its notice without insisting on procedural niceties. However, this is not the last of possible consequences, and is certainly not the fixing of accountability because website might be held accountable for not promptly taking the material off, but cannot be held accountable for the material itself. Therefore, the accountability of the website with respect to objectionable user-generated content is very limited, but is complete and absolute with the original ‘publisher’ of the content. All substantive and procedural laws operating under the constitutional umbrella of Article 19 (2) apply with full force with respect to any material posted on the Internet as much as they apply to any violation outside cyberspace. There is no protection worth the name afforded by the much hyped concept of ‘online privacy’. It is no special right or privilege, but only an extension of the right to privacy as it otherwise exists. Being in cyberspace neither dilutes, nor enhances any of the rights enjoyed by the citizens and non-citizens under the Indian law with all concomitant limitations and restrictions. So, to cut a long story short, if you violate the law in the virtual world, you might be headed to the prison in the real world.

With over 845 million (84.5 crore) active users worldwide and some 43 million (4 crore, 30 lac) in India alone, Facebook is at the center of the social networking talk followed closely by Twitter with over 500 million active users (in June 2011) across the world.

Although both Facebook and Twitter are considered tools for online social networking, the two are considerably different in many ways including the way the users approach these sites. While Facebook is like a massive drawing room housing a get-together of friends, acquaintances and some friends-of-friends, who can overhear parts of the conversation you have with your friends, Twitter is more like your conversation with the external world, which your friends and acquaintances are also a very small part of. And the users carry this distinction in the back of their minds subconsciously, which is why they behave differently on Facebook than on Twitter. Twitter, as we all know, is a microblogging website, whereas Facebook is more of a sharing platform for friends and acquaintances to connect.

Therefore, unlike Twitter, Facebook is treated as ‘personal space’ by most of the users, which, legally speaking, is a myth. For the most part, the content one posts on Facebook stands on the same footing as the content one publishes on Twitter the moment it is visible to anybody other than the one publishing the content. So, unless you made your post visible to yourself only, you are accountable to the law for all that you ‘say’ on the Facebook. So, you can ‘not’ take your comments ‘seriously’ only at your own peril. If your posts and comments can offend people, they can also offend the law; and while people might fume and curse as you giggle away merrily, the law can turn the burner on.

Recently, websites like Facebook, Yahoo! and Google found themselves in the dock facing criminal charges for hosting user-generated ‘objectionable content’. And this time it was not the government crying hoarse; it was a citizen who chose to initiate criminal proceedings against the websites. And there was no legal challenge to the person’s right to invoke criminal jurisdiction of the courts in the matter.

Websites like Facebook, Yahoo! and Google fall within the definition of “intermediary” under Section 2 (1)(w) of The Information Technology Act, 2000, according to which “”intermediary” with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.”

The Information Technology (Intermediaries guidelines) Rules, 2011 enacted in exercise of the powers conferred by the IT Act, 2000, makes it mandatory for the “intemediaries” to inform the users by clearly stating under “rules and regulations, privacy policy and user agreement” published on the website that they are not supposed to “host, display, upload, modify, publish, transmit, update or share” any such content that is “grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.” [Section 3 (2)(b)]

Once a violation within the description of any of the provision under Section 3 (2) is noticed by or is brought to the notice of an “intermediary” by any “affected person” through a written communication by e-mail or otherwise, Section 3 (4) of the Rules requires the ‘intermediaries’ to take down the objectionable material within thirty six (36) hours.

This means that any ‘objectionable content’ that falls within the description of Section 3 (2) not only violates the relevant laws of the land, but also violates the basic ‘Terms and Conditions’ that you agreed to when you joined the social networking site in question. Therefore, if the “intermediary” is taken to the court and has to pay damages or suffer any losses due to one’s posting the ‘objectionable content’, nothing stops the “intermediary” (Facebook or any other) from suing one to recover the damages arising out of the breach of the express ‘Terms and Conditions’. At the same time, the “affected person” might also initiate a criminal action or a civil suit, or both against the violator.

So, if ‘X’ posts defamatory remarks against ‘Y’ or impersonates him or her [Section 3 (2)(g) of the IT Rules, 2011], ‘X’ might be sued both by the concerned “intermediary” for the violation of the ‘Terms and Conditions’, and also by ‘Y’ for defamation. Additionally, ‘Y’ might also choose to initiate criminal proceedings against ‘X’, and sue the “intermediary” for failing to take down the objectionable content within the stipulated period of thirty six (36) hours, if the “intermediary” failed to act after having been notified of the offending material by ‘Y’. And if the “intermediary” had to compensate ‘Y’, the amount paid might be recoverable from ‘X’. In short, ‘X’ is neck deep in boiling soup.

However, it might be difficult for ‘Y’ to have the “intermediary” prosecuted under criminal provisions because of the obvious difficulties involved in establishing criminal intent on the intermediary’s part.

Furthermore, offenses like posting obscene or pornographic material don’t even need an “affected person”. The State can prosecute the offender on its own for the crime without anybody’s turning up with a complaint.

And it might be heartbreaking for those who breathe easy under the myth of ‘internet anonymity’ that it’s less than a cakewalk for the authorities to turn your IP address into a knock on your door.

So, there is absolutely no reason for you to ‘not take’ your posts and comments on Facebook and your tweets on Twitter ‘seriously’.

Originally written for and published as Cover Story in LAWYERS UPDATE [April 2012 Issue; Vol. XVIII, Part 4]

Write and tweet ‘party right’

Shahi Tharoor tweeted ‘Cattle Class’ and the holy cows sulked. And then hit back with the claws in their hooves. Obviously, Mr. Tharoor had not anticipated such a backlash from what appeared to him a docile species capable of baying but never biting or clawing. And then he realized his folly.

But one thing they got bang right. Mr. Tharoor has little, if any, understanding of Indian political scene. He doesn’t know that those who climb the political ladder land up on the side of the ‘classes’. Masses, he might know, the political ‘class’ doesn’t have the first idea about. Cattle don’t take offence of being called cattle. It is those who see themselves as non-cattle who would fume. Tharoor should take heart in the fact that the classes are blissfully nonchalant about his tweet (the majority doesn’t know what it is in the first place).

Take a peek at the General compartment of any train run by Indian railways and there would be no doubt, if you ever had any, that Tharoor has better understanding of Indian conditions and the ‘cattle class’ status of the masses than most of the leaders would admit having. So, the Holy Cows are simply insecure about the stupor they engineered over the decades patting the ‘cattle class’ and telling us cattle that we were mighty lions, and we feigned our sleep and kept nodding sleepily. Trying to roar was a waste of energy. So, we let them believe that we believed them.

The actual ‘cattle class’ was least bit offended because finally there was a minister who had uttered the truth, and he found his political brethren holding him by his neck for calling the bluff. And poor, bewildered Tharoor twittered an apology. Interesting, indeed. And we have a collective grin on our collective face.

Just a little while ago Tharoor was caught on the wrong political foot when in apparent contravention of the ‘austerity drive’ launched by Congress, he was found living in a five star hotel while his official residence was under renovation. Of course, he was footing his own bills, but that’s immaterial. He was spending loads, which he is not supposed to in ‘solidarity with the Holy Cows’. All members of the party must conform to one thought, one way of life and one history. And they should have just one view on all things and all men – the one approved and endorsed by the party. Live modest and write only such books that help party propaganda. Did we ever trust our leaders? Okay. So, this doesn’t make much difference anyway. All we have to do is modify our understanding a little. So far we did not believe what they said. Now, we would not believe what they write as well because what they write – and tweet – would be ‘party right’, and thus questionable and untrustworthy.