The Digital Divide: Conflicts Between Social Media v/s. Indian Domestic Laws

Need for the User Guidelines and Terms & Conditions of Social Media Platform and Their Conflict with Domestic Indian Laws

Abstract

Social media channels have greatly expanded communication, commerce, and civic participation avenues in India, with over 500 million active users as of 2024. Under these platforms, user guidelines and terms and conditions have been used to regulate conduct, safeguard intellectual property, and ensure compliance with local laws. Nevertheless, these policies and Indian laws often come into conflict with each other in some respects, including the Copyright Act, 1957, Consumer Protection Act, 2019, Information Technology (IT) Act, 2000, and the Digital Personal Data Protection Act (DPDPA), 2023.

This paper explores the pivotal role of these guidelines in platform governance, delineates the major conflicts with Indian laws in copyright enforcement, consumer rights, and freedom of expression, and measures the resultant implications for users and platforms. It presents case studies, legal analyses, and user perspectives to put forth actionable strategies to align platform policies with India’s regulatory framework, thereby building user trust, protecting rights, and ensuring compliance in this ever-changing digital ecosystem.

Introduction

The digital landscape in India has achieved record growth with more than 900 million Internet users and 500 million active social media users by 2024. These are platforms wherein Facebook, Instagram, X, WhatsApp, and YouTube function as avenues of communication, commerce, and content establishments. With increased growth, we see issues such as misinformation, copyright issues, data privacy concerns, and consumer exploitation raise. User guidelines and T&Cs provide contractual frameworks for regulating behavior, setting platform responsibilities, and mitigating legal risks.

In India, however, these policies require to be legally compliant with a grey area that includes the IT Act, 2000, Copyright Act, 1957, Consumer Protection Act, 2019, and the forthcoming DPDPA, 2023. The problem comes in when global platform regulations, designed from a US or EU perspective, do not factor in Indian modes of regulation, thus giving rise to legal disputes, disappointed users, and regulators alike. This paper enunciates the rationale behind the existence of these policies, their nature of conflict with Indian laws, and recommendations on how to resolve those conflicts and bring them in harmony with India’s regulatory framework.

The Role of User Guidelines and Terms and Conditions

User guidelines and T&Cs are foundational to the operation of social media platforms, serving as legally binding agreements that define the relationship between platforms and users. These policies are critical for maintaining order, protecting users, and ensuring compliance with legal obligations. The following points elaborate their roles:

1. Content Moderation:

• Purpose: Platforms host a host of user-generated content from text to multimedia. Guidelines regulate content, barring hate speech and misinformation, obscene content and the like, copyright infringement, etc., to provide a secure environment.
• Mechanism: The offending content is detected and removed through algorithms as well as through human moderators. Instagram’s Guidelines prohibit nudity, hate speech, intellectual property violations, and things of that nature; X promotes “authentic” communication and prohibits spam or malicious content.
• Indian Context: Content moderation must abide by Section 69A of the IT Act, wherein blocking content may be done for the reason of public order or national security, and the IT Rules, 2021, which require the proactive monitoring of unlawful content.
• Example: X came under criticism in 2021 for suspending accounts during the farmers’ protests in India, raising questions about adherence to free speech protections under Article 19(1)(a) of the Constitution.

2. User Protection:

• Purpose: These guidelines protect users by describing the privacy policies, grievance procedures, and safety tools with which users are endowed so that there exists trust and transparency.
• Mechanism: Reporting tools, privacy settings, and support centers are provided by platforms. WhatsApp’s T&Cs emphasize that they have end-to-end encryption, while Facebook’s Data Policy describes the data collection process.
• Indian Context: The Consumer Protection Act, 2019, and DPDPA, 2023, mandate obtaining user consent and adhering to principles of data minimization, requiring data practices to be transparent and to allow grievance redressal effectively.
• Example: The 2021 LocalCircles survey showed that 68.5% of Indian users never read T&C, thereby escalating the possibility of data misuse and emphasizing the need for user-friendly policies.

3. Liability Limitation:

• Purpose: Platforms limit their liability for third-party content provided through the safe harbor provisions such as Section 79 of the IT Act, which exonerates an intermediary if it has exercised due diligence.
• Mechanism: The T&Cs provide for the shifting of responsibility to users in respect of content uploaded, and also furnish indemnification to platforms against any legal claim in relation to that content. YouTube’s T&Cs, for instance, hold the users responsible for their uploads.
• Indian Context: The IT Rules, 2021, impose more stringent obligations on the significant social media intermediaries (SSMIs) having user-base of over 5 million, including compliance officers and monthly reports, thereby laying a semblance of challenge on the worldwide models of liability.
• Example: In 2021, Google disputed such classification as SSMI, rendering the indirect monitoring requirement incompatible with its automated systems.

4. Commercial Interests:

• Purpose: In online advertising, e-commerce, and data monetization opportunities, T&Cs become the way in which a lot of money is made; however, they must be kept in line with the consumer protection regulation.
• Mechanism: The likes of Instagram and Facebook, on the other hand, have tandem clauses dealing with sponsored contents and data-driven ads, basically commercial utilization of user data.
• Indian Context: The Consumer Protection Act, 2019, prohibits false advertisements and unfair trade practices, thereby protecting commercial transfers from becoming unfair.
• Example: The CCPA came up in 2022, laying down guidelines for influencer marketing and advertisements which most platforms had trouble enforcing.

Indian Legal Framework Governing Social Media

India regulates social media through a blend of statutes and judicial precedents. Key laws include:

Indian Legal Framework Governing Social Media

India regulates social media through a blend of statutes and judicial precedents. Key laws include:

1. Information Technology Act, 2000 (IT Act): Governs online communication and intermediary liability. Section 79 offers safe harbor, while Section 69A allows content blocking for national security or public order.

2. IT Rules, 2021: Classify platforms with over 5 million users as SSMIs, mandating compliance officers, grievance officers, and message traceability. They require monthly reports and swift content takedown (within 36 hours for certain violations).

• Impact: These rules enhance accountability but challenge platforms’ global models, especially for encrypted services like WhatsApp.

3. Copyright Act, 1957: Protects original works, with Section 51 defining infringement and Section 52 outlining fair dealing exceptions for research, criticism, or private use.

• Digital Context: Applies to user-generated content like memes or remixes, raising infringement concerns.
• Precedent: Super Cassettes Industries Ltd. v. Myspace Inc. (2011) clarified that intermediaries lose safe harbor if they fail to remove infringing content upon notice.

4. Consumer Protection Act, 2019: Protects against unfair practices and misleading ads. Section 2(28) defines deceptive ads, while E-Commerce Rules, 2020, mandate transparency in listings and grievance redressal.

• Relevance: Platforms must ensure compliance in advertising and data-driven services.

5. Indian Penal Code (IPC): Addresses content-related offenses like defamation (Section 499), obscenity (Sections 292-293), and promoting enmity (Section 153A).

• Application: Violative content can lead to user liability and intermediary responsibility if platforms fail to act.
• Example: In 2020, Delhi Police targeted users for communal misinformation, emphasizing the need for robust moderation.

6. Digital Personal Data Protection Act, 2023 (DPDPA): Regulates data collection and processing, emphasizing consent, data minimization, and purpose limitation.

• Impact: Platforms must align data practices with DPDPA, facing fines up to ₹250 crore for non-compliance.

Conflicts Between Social Media Guidelines and Indian Laws

Global T&Cs often conflict with India’s legal framework. Key areas include:

1. Copyright Infringement

• Issue: Indian law permits fair dealing for specific purposes (Section 52), while platforms adopt broader U.S.-based fair use standards, including transformative use.
• Implication: Content allowed under U.S. fair use (e.g., parodies) may infringe Indian law, confusing users and creators.
• Example: In 2022, a YouTube channel faced demonetization for copyrighted music in a vlog, despite claiming fair use, highlighting the mismatch with Indian fair dealing.

Takedown Mechanisms:

• Issue: IT Rules, 2021, require content removal within 36 hours of a complaint, but platforms’ automated systems (e.g., YouTube’s Content ID) may ignore Indian fair dealing exceptions.
• Implication: Overzealous takedowns suppress legitimate content, while delays risk non-compliance.
• Example: Acko General Insurance v. St+ Art India Foundation (2023) noted platforms’ failure to verify copyright claims before takedowns, violating procedural fairness.

Freedom of Panorama:

• Issue: Indian law lacks clear freedom of panorama provisions, meaning photos of copyrighted public monuments may require permission. Platforms’ T&Cs often allow such content.
• Implication: Users may unknowingly violate Indian law, and platforms risk liability.

2. Consumer Protection Issues

Misleading Advertisements:

• Issue: T&Cs permit data-driven ads, but the Consumer Protection Act bans deceptive claims. Undisclosed influencer marketing exacerbates this.
• Implication: Non-disclosure violates Indian law, leading to penalties.
• Example: In 2023, an Instagram influencer was fined ₹50 lakh for undisclosed health product promotions.

Data Privacy:

• Issue: Platforms’ extensive data collection conflicts with DPDPA’s consent and minimization requirements.
• Implication: Non-compliance risks fines and erodes trust. A 2021 LocalCircles survey found 68.5% of users skip T&Cs, increasing data misuse risks.
• Example: WhatsApp’s 2021 privacy policy update faced backlash for mandatory data sharing, triggering a CCI investigation.

Grievance Redressal:

• Issue: IT Rules mandate grievance resolution within 15 days, but platforms’ automated systems often fail to meet timelines.
• Implication: Inadequate redressal violates law and erodes trust.
• Example: A 2022 unresolved complaint about a fraudulent Facebook ad prompted a CCPA notice.

3. Freedom of Speech and Content Moderation

Overbroad Moderation:

• Issue: Platforms’ strict content rules remove legally permissible content, conflicting with Article 19(1)(a) and the Shreya Singhal v. Union of India (2015).
• Implication: Over-moderation stifles political speech protected unless inciting violence.
• Example: X’s 2021 account suspensions during farmers’ protests raised free speech concerns.

Traceability and Privacy:

• Issue: IT Rules require message originator identification, clashing with encryption-based platforms like WhatsApp.
• Implication: Compliance undermines privacy rights under the Puttaswamy judgment (2017).
• Example: WhatsApp’s 2021 Delhi High Court challenge argued traceability’s infeasibility and privacy violations.

4. Safe Harbor and Liability

• Issue: Section 79 grants safe harbor with due diligence, but IT Rules’ proactive monitoring requirements are impractical for platforms.
• Implication: Non-compliance risks losing safe harbor, exposing platforms to liabilities.
• Example: X faced 2021 legal action for delayed removal of inflammatory content.

Implications of Conflicts

These conflicts have significant consequences:

• Legal Uncertainty: Ambiguous regulations challenge platforms’ compliance. Google’s 2021 SSMI classification plea highlighted global-local tensions.
• User Rights: Over-regulation suppresses speech, while under-regulation risks violations like misinformation.
• Regulatory Overreach: IT Rules face criticism for exceeding IT Act powers, as seen in Digital News Publishers Association v. Union of India (2021).
• Consumer Trust: Misalignment erodes trust. A 2023 LocalCircles survey found 71% of users favor stricter regulations.

Recommendations

To address conflicts, the following strategies are proposed:

Harmonized Policies:

• Tailor T&Cs to Indian laws, integrating fair dealing and DPDPA-compliant data practices. YouTube could adjust Content ID to respect Indian copyright exceptions.
• Conduct regular T&C audits to align with evolving regulations.

Digital Literacy:

• Launch campaigns to educate users on rights and policies, offering simplified T&Cs in regional languages to address the 68.5% non-readership rate.
• Introduce digital literacy in schools, focusing on copyright and privacy.

Stakeholder Collaboration:

• MeitY should clarify compliance requirements with platforms, especially on traceability.
• IAMAI could standardize guidelines through industry dialogue.

Judicial Oversight:

• Courts should clarify ambiguous provisions like freedom of panorama. Fast-track digital dispute courts could ensure timely resolutions.

Ethical Design:

• Adopt privacy-enhancing technologies like differential privacy to comply with DPDPA.
• Balance automated and human moderation to protect free speech.

Conclusion

User guidelines and T&Cs are vital for governing social media, ensuring safety, and mitigating risks. However, their misalignment with Indian laws on copyright, consumer protection, and free speech poses challenges. By harmonizing policies, promoting literacy, fostering collaboration, and ensuring judicial oversight, India can create a balanced regulatory framework that protects user rights, respects platform autonomy, and ensures compliance. This approach will build trust, safeguard intellectual property, and uphold constitutional protections in India’s evolving digital landscape.

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