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Wednesday, January 4, 2017

Social media will play an important role in the upcoming Election says Advocate Duggal

Pavan Duggal -Cyber law expert
Advocate Pavan Duggal is practicing in Supreme Court. He is law graduate fromUniversity of Delhi. Mr. Pavan Duggal is the President of Cyberlaw Asia, He is also a member of the WIPO, Legal & Policy Consultant to Internet Mark 2 Project. He has been associated with the Ministry of Communication and Information Technology, Govt. of India on Cyberlaw and Electronic Governance Legal issues. He is the President of Cyberlaws.Net. He is the founder of the Cyberlaw Association & Founder-President, Cyberlaw India. Mr.Duggal is the Chairman of the Cyberlaw Committee of ASSOCHAM and works in closely with CII and FICCI. 

Our Managing Editor-S.S.Dogra spoke to Advocate Pavan Duggal on several issues on the uses of Social Media. Excerpts:

What is the definition of Social Media?
Ans. Social media is defined as emergence of a new phenomenon which allows people to express thought process in an interactive manner on a real time basis using the Internet and its various technological advances.

“Social media are Internet sites where people interact freely, sharing and discussing information about each other and their lives, using a multimedia mix of personal words, pictures, videos and audio.”

Social media refers to the means of interactions among people in which they create, share, and/or exchange information and ideas in virtual communities and networks. It differentiates from traditional/industrial media in many aspects such as quality, reach, frequency, usability, immediacy, and permanence.

What are the major feature of SM?
Ans. Social media differs from traditional/industrial media in many ways, including quality, reach, frequency, usability, immediacy, and permanence. At these Web sites, individuals and groups create and exchange content and engage in person-to-person conversations. The major features of social media are as follows:

(a) It is easy to use.
(b) It allows you to become an instantaneous a global generator, transmitter, publisher and broadcaster of data.
(c) It allows you to post your opinion on real time to the entire world.
(d) It allows you to interact with others on real time basis. Profiles are often used as a point of contact between users
(e) Social media uses audio, video, image or text on variety of platforms for the purposes of facilitating instantaneous communication.
(f) A common feature in social applications is the use of live search results and filtering.
(g) Often social networking sites have call-to-action-buttons that are supposed to motivate users to actions.

How useful it is for the election campaign?
Ans. Social media is extremely useful for election campaign. It is cost-effective and allows electoral candidates to reach out to large sections of the Internet users and netizen community on click of a button. Social media is extensively being used across the world for election campaign.



Is there any regulatory/monitoring authority for SM?
Ans. When one talks of social media per se, there is no regulatory/monitoring authority for same. However, social media in India is regulated by the Indian Cyber Law being the Indian Information Technology Act, 2000. All social media service providers are intermediaries under Section 2(1)(w) of the Information Technology Act, 2000, wherein they are mandated to exercise due diligence while discharging their obligations under Section 79 of the Information Technology Act, 2000. Further, the Government of India has mandated various due diligences to be complied with by intermediaries including social media service providers as detailed under the Information Technology (Intermediary Guidelines) Rules, 2011. However, most of these compliances are of a proactive nature. There is no regulatory/monitoring authority for social media in India as of today. However, the Government has given the power to block undesirable content on social media to the Group Coordinator, Cyber Law Division, Ministry of Communications & Information Technology, Government of India. However before exercising such powers, the aforesaid legal entity must be satisfied that it is necessary to issue directions for interception or monitoring or decryption of information through any computer source in any of the following circumstances:

a) In the interest of the sovereignty or integrity of India;
b) In the interest of defence of India;
c) In the interest of security of the State;
d) In the interest of friendly relations with foreign states;
e) In the interest of public order;
f) In the interest of preventing incitement to the commission of any cognizable offence relating to the above; or
g) For investigation of any offence.
Clearly, the aforesaid are broad parameters which have not been specifically defined.

There is No criteria/provision/restriction to open/create any FB-Page/A/c Website, twitter means anybody can do it even without any authenticity for others also.
Ans. The law has not stipulated any specific provision/restriction to open/create any FB-Page/A/c. However, Section 66A is of relevance. If anybody opens said account on social media which is primarily grossly offensive or menacing in character, the same itself becomes an offence under Section 66A of the Information Technology Act, 2000. However, the law really does not provide for any provision for authenticity of any FB-Page/A/c.

The same is also the position for other social media websites. In fact, the Indian Cyber Law does not really either define social media by name nor does it define a category and also does not specifically refer to Facebook or Twitter or other social media platforms.

However, certain restrictions are put on service providers providing social media platforms. Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011 provides that intermediaries have to have rules and regulations, terms and conditions and privacy policy and inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —

(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, 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;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

If any filthy/unethical posts are posted on SM then, what legal action can be taken against the wrong doer?
Ans. Posting any filthy/unethical posts on social media is an offense under Section 66A of the amended Information Technology Act, 2000. This is a punishable offense with 3 years imprisonment and also with fine.

If any person uses any computers and communication devices used for communicating, sending or transmitting any text, video, audio or image, for the various activities listed under Section 66A(a) to (c), he shall be guilty of an offence, which is punishable with imprisonment for a term which may extend to three years and with fine.

Any person who sends, by means of his computers and communication devices, any information that is grossly offensive or has menacing character commits an offence under Section 66A of the amended Information Technology Act, 2000.

Is there any law for SM?
Ans. Currently, there is no specific law on social media. However, since social media uses data and information in the electronic form, it is directly covered under the Indian Information Technology Act, 2000.

Whether Election Commission issued any instruction for the uses of SM during election?
Ans.
The Election Commission has reportedly issued the following instructions for the uses of social media:

“Candidates are required to file affidavits in Form-26 at the time of filing of nominations.

Para 3 of this Form requires that email ID of the candidate, if any, should be communicated to the Commission in this Form. The Commission finds it necessary that authentic social media accounts of candidates should also be informed to the Commission…

candidates and political parties shall include all expenditure on campaigning, including expenditure on advertisements on social media, both for maintaining a correct account of expenditure and for submitting the statement of expenditure. This, among other things, shall include payments made to internet companies and websites for carrying advertisements and also campaign related operational expenditure on making of creative development of content, operational expenditure on salaries and wages paid to the team of workers employed by such candidates and political parties to maintain their social media accounts, etc….the provisions of model code of conduct and related instructions of the Commission issued from time to time shall also apply to the content being posted on the internet, including social media websites, by candidates and political parties.”

Most of the candidates are hiring IT experts to use their SM job even they (Political leaders) don't know or even cannot use such utility, in that circumstances, they are totally depend upon IT expert only, who is held responsible for wrong postings.
Ans.
It is correct that most of the candidates are today hiring IT experts for handling their social media activities. However, the said IT experts handle the said social media accounts for and on behalf of the said candidates. In the eyes of law, the said accounts belong to the said candidates and only they alone shall be responsible for use or misuse or abuse of the said social media accounts. 


 How far SM is effective then the old method of election campaigning?
Ans.
Social media is distinctly effective inasmuch as it optimizes the use of technology. It may be viewed as a cost effective means to reach out to large sections of the electorate. As more and more Indian electorate are using the digital ecosystem as also mobile phones, social media becomes an important tool to address the said community through social media using mobiles and communication devices. Social media is more effective than the old method of election campaigning. However, given the fact that Internet penetration in the country is relatively still less and is growing with the passage of time, it is clear that social media will not replace the old method of election campaigning. On the contrary it will continue to be an effective important added tool in the arsenal of the relevant election candidates that they go about their election campaigning for winning elections.

What precaution/guidelines should be taken care off while using SM particularly during election campaign?
Ans.
The following precautions/guidelines should be taken into consideration while using social media:

1) It is advisable for the election candidates not to launch personal attacks while using social media.
2) It is better to be duly diligent while using language and expressions on social media.
3) During the course of election campaigning, the election candidates should not do any of the following acts:
i) swear or abuse somebody as the said swear words could be said to be grossly offensive. The same could also be said to be having menacing character and their act could come within the ambit of Section 66A(a) of the amended Indian Information Technology Act, 2000.
ii) Anything defamatory which affects the character, reputation, standing or goodwill of a person could also be deemed to be grossly offensive.
iii) Making false allegations against the character of a person or character assassination could also qualify as grossly offensive and having menacing character.
iv) Using insulting words or symbols which are obscene, could also qualify as grossly offensive and having menacing character.
v) Calling someone names could also be brought within the ambit of being grossly offensive or having menacing character
vi) Posting the picture of a person in uncomplimentary situations and environments could also be said to be grossly offensive or having menacing character. For example, if you morphed the photograph of a girl/boy’s face in unwarranted situations, the same could be grossly offensive and having menacing character.
vii) Electronic morphing which shows a person depicted in a bad light could also be seen as an example of information being grossly offensive or having menacing character.
viii) Using vernacular gallies or bad words in English alphabets could also qualify as grossly offensive or having menacing character.
ix) Threatening somebody with consequences for his life, apart from being separate offences, could be also construed as information which is grossly offensive or having menacing character.
x) Threatening to expose the ill-deeds of somebody could also qualify as information which has menacing character.
xi) Information containing malicious, mischievous character assassination
xii) Information containing morphed pictures aimed at hurting religious sentiments.
xiii) Information showing gods and goddesses of particular religions in an uncomplimentary light.
xiv) Putting the picture of a person against a slogan/phrase/saying which does not depict his true character or personality.
xv) Deceiving the addressee or recipient about the origin of such messages. For example, sending emails from a fake email account to another person, could qualify as an offence under Section 66A of the amended Indian Information Technology Act, 2000.
xvi) Further misleading the addressee or recipient about the origin of such messages, e.g. sending e-mails and SMSs in the name of an anonymous user could also be brought under Section 66A of the amended Indian Information Technology Act, 2000.
xvii) E-mail containing fake recruitment offers to unsuspected members of the public, could also qualify as an offence under Section 66A of the amended Indian Information Technology Act, 2000.
xviii) Maintain Privacy: Do not discuss a situation involving named or pictured individuals on a social media site without their permission.
xix) Don’t Use Pseudonyms: Never pretend to be someone else. Tracking tools enable supposedly anonymous posts to be traced back to their authors.

Thanks for your VISITs

 
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