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Regulation of Social Media in Constitutional Governance

The first question arises after hearing the topic name is What Is Social Media?

Let's break the word in two terms social and media

Media word used for the communication and social word means relation with the society. So together the word says:
communication relating the society.
The best way to define social media is the person's day to day communication with the society or the surroundings he is living.

Introduction:
There are a lot of source of media the person follows, there are too so many platforms which convey the routine news and media on social media.

The different forms of media are:

  • Print Media:

    The oldest and cheapest mode of communication is the print media. The print media is not as much as efficient as the other forms of media but they are more unique in their way and are very much effective. The revolution that took place from ancient times has the history with print media. The whole history of world is covered under print media. There are a lot of examples of the print media that are newspapers, magazines, books, letters etc.

  • Web Based Media:

    The form of media that arise in the 20th century all related to internet services and computer. After the print media, the world was progressing and changes took place with due course of time. The origin was computer was happened and that comes with evolution of internet with web based media. The web media contains all the information regarding any of the subjects. It is the form of media which is more responsive and interactive. The form of media which a person can easily understand. The different examples of web bases media are the different sites we find on internet that helps in growth of social communication.

  • Mobile Technologies

    The latest and fastest form of media that exist. The mobile media are the result of the fast internet services and the origin of new mobile based technologies. In today's world mobile are most easy and helpful media ever existed. The small device contains the information regarding anything in the whole world. Nowadays the use of social media is mostly on the mobile. There are so many platforms that deal helps in growth of social media. The basic mobile applications or the basic social media platforms are Facebook, Whatsapp, different messengers, etc.
    The most popular mobile based technologies that are famous between youth of this country are Facebook, instagram, Whatsapp, Twitter etc.


Social Statistics:

There are too many statistics regarding use of social media in India:

  • Internet Usage:

    India is the second largest country in the world after china with large number of internet users. The counting has reached 560 million users in India. By 2021, there will be 600 million users in India. Nowadays almost every citizen of India whether he/she is rich or poor, they have internet access. In 2015 there were only 270 million of internet users in country. But in 5 years, it has rapid increase of 533 million more users.
     
  • Social Media In India:

    With the access of good internet services and speedy network, many users of India are active social media.
    In 2019, there were 300 million active users on different social media platforms in India. And this counting is getting increasing rapidly. Indians are very active on different social networks and 90% of users share content on their social profiles.

    • Facebook= is the most browsed vast and browsed network of social media. The revolution of social media was once started by Facebook only. Now facebook owns instagram, Whatsapp messenger. There are approx. 280 million users on facebook from India. Huge audiences actively participate in social media.
       
    • Twitter= There are so many active users on twitter. It is the platform where any citizen can keep their point of view regarding the issues of the country. There are approximately 14 million active users on twitter in India.
       
    • Whatsapp= A huge part of WhatsApp's user base comes from India and the country is the largest market for the platform. Every active citizen in country is link with Whatsapp. The citizen list reached 2billion in India.
       
    • Instagram= The second company owned by facebook and a platform of social media for mostly youths. The applications of social media are divided in India with different age groups. Mostly youths are active on instagram with using different filters and liking & posting pictures, sharing the platforms. The active users on instagram from India are 88 million behind USA with 120 million.
       
    There are more platforms in country where people share thoughts about day to day life and are active participants of the social media. The applications like tiktok, linked in, hello app, snap chat etc. are also contributing in vast social network.
     
  • Mobile Usage In India:

    The 21st century is the hub of different types of smart phones. Today there are a lot of technologies which are comprises of different features and functions that are helping in making our life easier. These all functions are comprised in the small device that is being carried in pockets. According to a status report, the smartphone users in India reached 500 million in 2019, that's a rapid increase by 15% from 2018.


Types Of Social Media

There are different forms or sorts of social media in India and therefore the citizens of India are actively participating within the differing kinds of social media.

  • Social Networking

    The social networking in India is extremely vast. As per the statistics there are almost 500 million users of smartphone in India. All the users are the a part of social networking, there are likeminded people that share their point of view by sharing chats.

    Instant messaging, photo sharing, video sharing, video calls and video chats. The foremost popular applications are Facebook and Whatsapp.
     
  • Blogs:

    The new platform to share the purpose of view of individuals is that the blogs. As per new technologies and fast internet. The interactive feature of blogs is that the ability of readers to go away comments and therefore the comment trail may be followed. There are video blogs too which are basically on YouTube and are on sizable amount, the video blogs just show the interaction with the assistance of various videos just like the blogs of any travel places.
     
  • Media Sharing:

    because the users use the net for his or her purposes, they also use for the sharing and broadcasting their media to the planet, like sharing their videos and pictures in chats to their loved ones, or using of chat apps for office use by sharing different documents and files. As per in current situation in 2020, there's a Covid 19 attack on whole world and most of the planet are lockdown in homes because of the attack and there's a loss of economy and nobody can join office at this point. So there's a use of formula WORK FROM HOME, as per addressing the case the messaging apps, video calls apps and various social media platforms helps lots to each user to figure and share their work from home.
     
  • Wikis:

    For collecting of various data, either we search on internet or we undergo the books that are associated with the subject. But in 21st century, on internet there are numerous wikis profiles present on the net that tells about the actual topic that helps in covering the subject from different fields and help us to gather information about various things.
    The wikis do contain information about any famous profile either of history or of present times.
     
  • Social News:

    These services allow one to post various news items or links to outside articles. Interaction takes place by voting for the things and commenting on them. Voting is that the core aspect because the voting takes place by online polls which deal about the continuing situation within the country. Social news is that the new phase of reports during this advanced world.


These were differing kinds of media which deals with the country like India. But in country like India, there are lot more types or styles of media which the people deal and share in their daily routine. But there's also an involvement of the govt of country. And there lots of rules and regulations regarding the media within the country within the Constitution of India. Because the media during this country is free but this doesn't mean there are laws against the citizen who spread hate against any communal field or the govt or any of the citizens of country.

Constitution of India:

There are such a big amount of acts and laws within the constitution of India that tells about the rights and duties of a citizen for his or her social media and towards their social media. The foremost and extremely protective right is:

Freedom Of Speech And Expression

Article 19(1) (a) of the Constitution of India states that, all citizens shall have the proper to freedom of speech and expression. The philosophy behind this text lies within the Preamble of the Constitution, where a solemn resolve is formed to secure to any or all its citizen, liberty of thought and expression. The exercise of this right is, however, subject to reasonable restrictions certainly purposes being imposed under Article 19(2) of the Constitution of India.

Freedom of speech and expression are often clearly explained by the very fact that each person has the proper to talk and express their point of view during this country.
Freedom of speech may be a complex right.

This is because freedom of expression isn't absolute and carries with it special duties and responsibilities therefore it should be subject to certain restrictions provided by law.

This right is roofed under article 19(1) (a) of the constitution of India. It absolutely was confers the citizens of India the proper to freedom of speech and expression. The liberty of speech and expression means the proper to precise one's convictions and opinions freely by word of mouth, writing, printing, pictures or the other mode. It also includes the proper to propagate or publish the views of people.

Defamation or a sort of Sedition can never be included under the given right as both are an offence either within the Criminal or Civil Law. The liberty of Speech and expression includes liberty to breed not only by the one's view only. It also includes the proper to propagate or publish the views of the opposite people.

The freedom of Speech and Expression has been detailed linked with the concept of Democracy. Democracy is taken into account because the self-government which is nominated by the people for the correct functioning of the country. It's important that there should be no restrictions on the free flow of knowledge and concepts. Returning to the subject The Social Media and therefore the Freedom of Speech within the present context, it's often observed within the present that there's a problem regarding the post (be it appropriate or inappropriate) on social media and it's also observed that sometime people fall in an exceedingly greater Controversy because of such post. Different form of posts are available a views while using any social media and there's very limited Censorship on the identical.

Its four broader special purposes to serve:

  • It helps a private for the achievement of self-fulfillment - It helps within the creation of discovery of truth.
  • It makes individual stronger in participating in deciding.
  • It provides the method by which it'll possible to determine an affordable balance between stability and social change. All should be capable to form their own beliefs.


As we all know social media may be a hub of social gatherings and social meetings, because the users during this country are a great deal active on social media and participate legitimately. there's somehow the violation of this right the social platform, because the citizens have power to talk au fait any topic, in order that they try and open au fait different social media platforms by posting their different views on different issues associated with country India.

The remarks are often made objectionable to anyone. Instead of defining a replacement 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 of India.

Several cyber-crimes, defamation, invasion of privacy, incitement of offences, racist remarks, stalking, abuse, hacking, harassment and plenty of more are often easily committed through social media and once such objectionable content is uploaded, it becomes viral and consequently, very difficult to contain. Hence, the importance of the State regulating social media also can't be denied.

There are various cases associated with current situation within the country during the lockdown, the spreading of COVID-19 in whole country by the Muslim community referred to as Tablighi Jamaat. There have been thousands of jamaaties
Who had participated within the spreading of virus.

At this stage there's lot of hate and detestation among citizens towards these people. The citizens have shown their hatred in social media by objectionable posts, pictures and videos. During lockdown, nobody can protest against them on the roads, in order that they tried to seek out a platform that's social media to indicate their protest. That leads to the deviation of country in two opinion that's 'for and against' the problem. On social media, they're divided on communal basis and spiritual basis. There are two different opinion supporting Hindus and Muslims. There are safeguards that are available during this regard that's being covered in 'information technology act', 2000 and 2008 respectively.

Information Technology Act, 2000

The Information Technology Act, 2000 (also referred to as ITA-2000, or the IT Act) is an Act of the Indian Parliament (No 21 of 2000) notified on 17 October 2000. It's the first law in India managing cybercrime and electronic commerce. It's supported the UNCITRAL Model Law on International Commercial Arbitration recommended by the final Assembly of United Nations by a resolution dated 30 January 1997.

The bill was passed within the budget session of 2000 and signed by President K. R. Narayanan on 9 May 2000. The bill was finalized by group of officials headed by then Minister of data Technology Pramod Mahajan.

The main purpose for passing the bill was to stay a watch on the all the activities happening on the net. The Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures. It also defines cyber crimes and prescribes penalties for them. The Act directed the formation of a Controller of Certifying Authorities to control the issuance of digital signatures. It also established a Cyber Appellate Tribunal to resolve disputes arising from this new law.[3]

The Act also amended various sections of the Indian legal code, 1860, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891, and therefore the depository financial institution of India Act, 1934 to create them compliant with new technologies.

This act provides the legal recognition for the transactions which is finished through by any electronic exchange of knowledge or the other electronic means of communication. The final assembly of the United Nations suggested that each one the countries should consider from the model law before changing in their personal laws. India becomes the 12th Country for creating the cyber laws after passing the amendment of data Technology act.

The primary draft has been created by the govt of India which is understood because the Ecommerce Act, 1998. Shortly it's been Information Technology Act 2000, India, redrafted which is understood because the 'Information Act 1999' but it's passed in May 2000.

Features:
All electronic documents made by the electronic channels are legally valid.

  • Legal identification for all the digital signatures.
  • Measures taken for all electronic records.
  • This act is additionally taken caring for offences which are committed outside the India.
  • An appeal for the order of Cyber Tribunal can make within the Supreme Court.
  • Any policeman can enter any public place and might arrest the offender with none such bench warrant. And there are more features of this act.


After the Mumbai attacks in 2008, there was an amendment made during this act that brings about to a different act that's 'INFORMATION TECHNOLOGY ACT, 2008'.
These amendments were amended to expand and strengthen the monitoring and censoring capacity of the govt.

As per the technology was rising there was a threat to the cyber crime and lots of citizens were involved within the cyber crime that result to the violation of right to privacy of citizen. By hacking different sites and websites, the hackers committed crime of forgery and fraud, these are too punishable under Indian legal code. Section 66A of the data Technology Act, 2000 inserted vide Information Technology (Amendment) Act, 2008 provides punishment for sending offensive messages through communication services.

The cyber law of India now contains provisions regarding blocking of internet sites, monitoring and c collecting internet traffic data, etc.

As per the reports by different statistics, the cyber crime in India stands third among the highest 20 cyber crime victims. The cyber crime registered in 2018 was 27,248 with rapid increase of 80% from 2016. There are approx. 1200 cases reported monthly in India. After the great connectivity and therefore the involvement of citizens on social media, that's the one in every of the foremost viewed reason for the rapid increase of cyber crime in India.

The crimes happen on different social media platforms and therefore the innocent people become involved the crime and berry an enormous loss mostly of cash. Most of the crimes are of forgery and fraud, cheating or befooling the people to create money. The foremost recent example is of Jamatara in Jharkhand. The town is understood because the hub of cyber crimes. Almost every home and each member is involved the cyber crime.

Like for instance, they tends themselves because the bank worker and elicit the OTP from the mobile number, money was blown far away from the account. Another report is of 2020; the person is that the mastermind of ATM fraud won't to cross cash for minutes. There's no regulation for the crime in Jamatara; many students who had not attained the legal status are involved and making crores from fraud.

At today's time there's plenty of threat of knowledge theft and there are too many cases regarding data theft. Data theft is that the act of stealing computer-based information from an unknowing victim with the intent of compromising privacy or obtaining lead. Data theft is increasingly a controversy for individual computer users, also as big corporate firms.

The information theft may be a direct threat to the proper of privacy of someone. in line with a report, in 2019, Whatsapp has informed the Indian government that it had written to the country's nodal cyber response agency in September about the information breach within the accounts of 121 Indian users of its messaging app by injection of spyware, in line with someone conversant in the event. There's also lot of complaints of users from facebook that they need faced the problem of knowledge breach and is threatened about the stealing of their data, but there's not any specific report of it.

In line with a report the ZOOM
Application that's used for the video calling and meetings. Basically this app is for the office purpose and through the lockdown this application was very helpful for the office meetings and online classes of colleges and colleges. This was most used application after MS Teams, but this app was also rolls out new measures about the safety concerns because it's also the allegation of knowledge theft.

After the intense threats of knowledge theft, this hurts the citizen's privacy that's being protected under Indian Constitution.

Right To Privacy:
Before we get into an entire discussion of Right to Privacy, the primary thing we'd like to grasp is that the meaning of the word Privacy. in line with Black's Law Dictionary right to be let alone; the proper of someone to be free from any unwarranted publicity; the proper to measure with none unwarranted interference by the general public in matters with which the general public isn't necessarily concerned.

The proper of privacy is being covered under the Article 21 of the Indian constitution. Article 21 of the Constitution of India states that No person shall be empty his life or personal liberty except in line with procedure established by law. The proper of privacy includes all conditions of person, by protecting his/her right with the assistance of state. The primary case regarding right to privacy was filed in 1941 by Kharak Singh against State of state.

Within the 21st century, privacy is everyone's issue and every one citizen are concerned with their privacy. Nowadays social media may be a hub of risking privacy and plenty of the crimes associated with the privacy are obtained on social media and are associated with socialization. In line with a report nowadays the privacy issues on social media is generally arise after stalking. Stalking is punishable under Indian legal code section 354(D).


Right to Privacy is an implied right under Fundamental Rights. The Constitution of India doesn't expressly recognize the proper to privacy but at the identical time this right has been spelt out by our Supreme Court from the availability of Article 21 which deals with the proper to life and liberty. The Apex Court of India has reiterated the Right to privacy in many cases.
After the rules provided by the govt. to shield the privacy of citizen.

There are advisory or warning on every sites and each application before downloading it or opening it. That advisory contains all the agreements, regulations, privacy statements. If the person wants to enter the positioning he had agree otherwise he can leave. The step was provided under information technology act, 2008 under the data and technology ministry.

The data theft issue of Whatsapp and facebook is additionally the threat to the privacy of person. They'll hack your information and pass it to the various authorities which will leak your data.
During the fight with COVID-19, the govt. of India released a political candidate application AAROGYA SETU that helps to detect information about the infected patients. There was issue regarding the fake application that was released by neighboring country Pakistan. The Intel agencies warned the soldiers to not download the app because it is that the app for data theft. The information within the device is then easily extracted and saved in an exceedingly remote server of the mischievous apps.

The government always tried to shield the privacy of citizens.

There are such a lot of measures taken on the worldwide level regarding social media. The statistics tells about the opposite government issues regarding social media instead of India.

Initiative taken in the context globally: Now a day's around the world we see increasing in racism, terrorism and intolerance which it includes anti-muslim or mistreatment to the Christians. Social media and the other types of the communication have been treated unfairly for the platform of unwillingness towards those who hold different opinions from oneself. Public discourse is considered as adapted for use as a weapon for achieving the political gain with incendiary rhetoric regard as worthy of disgrace for the women, refugees and many of them.

If we think about hate which is moving into the ideas and opinions that are considered normal in the context of the liberal democracy and the authoritarian system. It has broken the pillars of our humanity that is now it is weakened. Like Hate speech, it is a kind of the communication in the form of the writing, or any type of the behavior which attack or expressing or using unfair language to the person or the group on the basis of the caste, religion, language, gender etc.

It can be used in the context of refusing to accept ideas and a feeling of not liking something in many contexts which can be also consider for the losing the dignity and respect for others. Addressing the hate speech does not mean for forbid the freedom of speech and expression. It is used to cause something more dangerous, violence which is punishable under the international law.

To deal with the hate speech is also important to go into the deep process for the agenda of the United Nations through the helping for the prevention of armed conflict, violations against women or any other things which violates the human rights. It can be danger to the democratic values like a citizen of New Delhi has said some Hate speech to the chief minister Arvind Kejriwal. By this way the United Nations have to think about the Hate speech. This problem can be solved by making the Strategy or the Plan which gives the result and the outlook.

This will help the United Nations to concentrate for conveying the hate speech in the world for supporting the freedom of speech and expression with the collaboration of the Government, Public societies, And Private sectors etc. Apart from the hate speech there is also a thing which the international law does not allow that is incitement. Incitement is a danger form of speech which is absolute and done intentionally for causing the discrimination, violence or it can be called as the terrorism.

Whereas the international law does not require that hate speech does not reach equal to the incitement. Hate speech has affected the many areas of the United Nations like protection of the human rights, Anti terrorism, and Youths etc.

The plan and the strategy of the hate speech will give the aims for United Nations for addressing in the terms of the values and principles.

The objectives can be:

  • To improve the United Nations efforts for addressing the causes of the hate speech.
  • To improve the United Nations responses for the impact on the societies.

    The following Strategies are:
    1. The strategy and putting the plan into the action for the freedom of speech and expression. It requires more speech not less for addressing the speech.
    2. Making efforts to deal with the hate speech is the responsibility for all like Government, Societies and Private sectors etc.


Now there is a discussion about the case law which is related to topic that is 'Regulation of social media in constitutional governance'. In these cases, if there has been a violation of the Article 19 or the different articles that would be cover under these cases. Explanation can be done by the analyzation of the case law.

Case Law:

  • In the Secretary, Ministry of data and Broadcasting, Government of India et al. v. Cricket Association of Bengal and others , the Supreme Court held that for ensuring the free speech right of the citizens of this country, it's necessary that the citizens have the good thing about plurality of views and a spread of opinions on all public issues. The case law was associated with the elemental right of the Indian Constitution that's right to freedom and expression. The case was about the posting objectionable posts on the web by cricket association and therefore the information and broadcasting ministry had objection regarding it.

    The bench of Justices J. Chelameswar and R F. Nariman concluded that:
    • it is obvious that Section 66A arbitrarily, excessively and disproportionately invades the correct of free speech.
    • upsets the balance between such right and therefore the reasonable restrictions which will be imposed on such right.

  • Shreya Singhal V. Union Of India:

    it's a judgment given by the two-judge bench of the Supreme Court of the India for the problem of the net speech. Its strike down under Section 66A of the data Technology Act, 2000 for the restrictions of the net speech considered because the unconstitutional for the violation of freedom of speech which is under Article 19(1) (a) of the Constitution of India. Although this section isn't saved by the reasonable restrictions under Article 19(2).

    This case is taken into account a watershed moment of online speech for India. Section 66A of the data technology act, 2000 is taken into account as a punishable offence for anyone by the employment of the electronic resources:
    1. Any information that in negative, shocking, disturbing etc.
    2. Any information which is use for the aim making injury, danger and doing insulting.
    3. Any email correspondence for the aim of making discomfort to anyone.

      This section can even used for the non-public or political in nature. The judgment of this case has been exhausted the 52 pages which are discussed in Indian and English Jurisprudence. For the court Justice Nariman talks about the assorted points which may be applicable for the restrictions on the speech which deem reasonable. The court held that the Section 66A wasn't clear and thus Article 19(1) (a) the statute wasn't made to order for the particular instance of speech.

      And therefore the court also held that the 'public order' under the restrictions of Article 19(2) of the constitution of India won't be applicable to the cases like advocacy. The intelligible differentia is clear- the web gives a platform which needs no payment through which to air his views. 9 Finally the court held that the blocking process under section 66A of the act during which the govt. can take the content through the web it'll not feel any weakness within the Section 66A.

  • Mattel Inc.And Others V. Jayant Aggarwal And Others

    Delhi Supreme Court, 17 September, 2008.
    In this case the copies of facebook page were accustomed decide a case on Trademark Infringement. That was a decent example of employing a social media platform to deliver justice.

  • Carla Gannon And Others V. Shabaz Farukh Allarakhia And Others

    10 July, 2010.
    This case was also a landmark example of the employment of social media within the courts to deliver justice. The case includes the facebook activities that were taken as evidence to make a decision the matter of custody of a minor child.

  • People's Union For Civil Liberties V. Union Of India

    Supreme Court of India, November 30, 2001.
    The case was associated with the correct of privacy because it was the case of phone tapping of the politicians by CBI.

    This means that telephone tapping would infract Article 21 unless it's permitted under the procedure established by law. The procedure must be just, fair and reasonable.

    The Supreme Court gave the choice the case that if there's an investigation order issued by the central government against any citizen either he/she could be a politician or a traditional person. There is any sort of investigation either of phones tapping or browsing their social media accounts or the private messages. That violation of the privacy wouldn't be an offense and can be considered fair and reasonable.


Punishments:
The violation of freedom of speech and expression is punishable under IPC Section295 (A). The punishment for the offense is imprisonment which can touch two years, or with fine, or both.

There are numerous offenses mention within the Information Technology Act, 2000 and 2008 covered under section 43 to 76. There are different punishments for every and each offense that are either punishable with imprisonment or fine or both. The punishment for the Article 21 of the Indian Constitution that's 'RIGHT OF PRIVACY' is additionally covered under the knowledge technology act.

  • Section 44: When person fails to furnish any document he's prone to pay 1.50 lacks per failure.
  • Section 65: anyone destroy any computer source document intentionally, then he shall be prone to pay penalty up to Rs.2, 00,000/-, or Imprisonment unto 3 years, or both.
  • Section 66: anyone, fraudulently does any act as referred in Section 43, then he shall be prone to pay penalty up to Rs.5,00,000/-, or Imprisonment up to three years, or both.
  • Section 66B: anyone dishonestly, receives any stolen computer resource or communication device, then he shall be prone to pay penalty up to Rs.1, 00,000/-, or Imprisonment up to three years, or both.
  • Section 66C: Any of the person fraudulently make use of Electronic Signature, Password or any of the opposite Unique Identification Feature of the other person, then he shall be prone to pay penalty upto Rs.1,00,000/-, or Imprisonment upto 3 years, or both.
  • Section 66E: anyone intentionally captures, publishes, or transmits image of personal area of anyone without consent, then he shall be prone to pay penalty upto Rs.2, 00,000/-, or Imprisonment upto 3 years, or both. That's the punishment of the RIGHT OF PRIVACY.

There are more offenses but only few are being explained because all the punishments of various offenses are similar and there's a large explanation of the offenses.

Conclusion:
The research paper was about the issues faced by social media and therefore the role of the constitutional governance in addressing all the problems of the social media. the various rights involve in protecting the person's right different social media platform. The researcher also told about the various punishments for the various offenses with the assistance of case laws. Ultimately researcher concluded about different laws functioning within the government regarding crimes that passed on social platforms.

References

  • The Information Technology Act, 2000 and 2008 (Act 21 of 2000).
  • Article 19, Constitution of India.
  • Article 21, Constitution of India.

Written By Malay Dixit 

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