Regulating Social Media: The Balance between Freedom and Responsibility

Introduction 

Social media helps people to connect with each other, promote multiculturalism and networking by breaking the barrier of distance, culture, language, etc. It has been defined by Cambridge Dictionary as those websites and computer programs which help in sharing information, opinions, etc. on the internet primarily through social networking sites.¹

In today’s world social media has been absorbed into almost all the aspects of society starting from fashion, education, business networking to governance. As it is an uncontrolled medium, there are  chances of it being used by perpetrators as well to fulfill their unlawful motives. This article shall discuss the expansion of social media and the ways opted for its regulation.

Background of Social Media

Every big thing has a humble beginning in order to reach its present condition. Similarly, social media was in its infancy in various ways before it took its current form. Those were:

Telegram– Telegram was the earliest means of communication over long distances. It was the first step towards socialization in modern form.

Telephone– Telephone was one such invention that changed the whole scenario of communication. It facilitated direct communication.

ARPANET – ARPANET i.e. the Advanced Research Projects Agency Network built by Advanced Research Projects Agency (ARPA), a U.S. government agency, laid the foundation for the origin of the Internet in the present day.

Email – Email or Electronic Mail has two origins. In the 1960s Email could be sent using the same computer itself and not between two computers. It was only after the creation of ARPANET that messages could be sent between two computers by email (70s).

Dynamic evolution from 70s to the 90s – The period from 70s to 90s  saw the emergence of different computer programs  that has led to the development of social media in a very dynamic way. The list below are a few examples:

• MUD – MUD (Multi-User Dungeon or Multi-User Domain) was created in 1978. It is a computer program that created a real-time virtual world and provided a platform for people to socialize through various ways like online chat, role-playing games, etc.
• BBS – Bulletin Board System, in short BBS, created in 1978 was a dynamic platform allowing users to do a variety of things like downloading software, exchange messages etc.
• Usenet – Usenet was built in the year 1979 while established in 1980. It enabled users to post articles, news etc. It is quite similar to BBS.
• World Wide Web and later developments – Development of programs like World Wide Web by Tim Berners-Lee in association with some others in 1989  along with creation of a Hyper Text Transfer Protocol (HTTP) to regulate communication between servers and clients had a primary role for contributing to the growth of Social media. However, those were just the prototype and the text-based Web browser was made available only in January, 1992.
• Advent of Social Networking Sites –  The period of 90s and 2000s witnessed the development of a bunch of social networking sites. These new networking sites facilitated interaction mainly based on friendship, shared interests in music, education, etc., for example  – Six Degrees, LunarStorm, MySpace, LinkedIn etc. Subsequently, popular ones like Yahoo!360, Facebook, YouTube, etc. also emerged. ²

Social Media’s Role in Governance

Social Media is not only useful for networking and interaction but also for getting opinions of masses, providing information, creating awareness, doing surveys, etc. Even Indian government organisations or departments use social media for better governance. Those are :

• MIB – Through social media the Ministry of Information and Broadcasting (MIB) shares government news and updates.
• MoF – MoF or the Ministry of Finance provides information about taxes and financial planning through social media.
• MoHFW – The Ministry of Health and Family Welfare (MoHFW) uses social media to promote public health issues, health programs and services.
• MoE – The Ministry of Education (MoE) provides information about educational programs and resources with the help of social media
• MoRD – The Ministry of Rural Development (MoRD) uses social media to provide rural citizens with information about government programs and services. ³

Pros of Social Media

• It gives a platform to exchange views and opinions.
• It lets people voice out their opinion without the fear of being interfered.
• It provides networking opportunities for people and business enterprises to grow.
• It is also a very strong and effective medium to promote talent which may have been undermined in the real world.
• It helps in dissemination of knowledge, information on a day-to-day basis and helps people to stay updated about the real world.
• It helps in getting the opinion of large numbers of people regarding certain topics or issues.

Cons of Social Media

• It may be misused by some people to manipulate large sections of society in the wrong direction.
• It consumes much of the people’s time unnecessarily.
• People are susceptible to get any wrong fact, idea or information where such fact, idea or information may not have been verified.
• The contents reaching the users of social media may not be age appropriate due to lack of rigid barrier and technological lacuna.
• Hackers, Fraudsters etc, may use it as a tool to commit digital or online crime, cyber frauds, scams, etc.
• Social media may interfere with a person’s privacy.
• People may get addicted to it and focus on their work and the real world may be diverted.

Regulating Social Media

The rampant misuse of Social Media and crime committed through it has created a very alarming situation in the society. Therefore, it is essential to keep a strong surveillance on social media and stop its misuse.

In  AJIT MOHAN & ORS. vs. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY OF DELHI & ORS. ⁴ SANJAY KISHAN KAUL, J. opined regarding the unregulated nature of social media by stating that the digital platforms  unlike the railway platforms were not regulated and so they become uncontrollable at times and carry their own challenges. The Hon’ble Justice further stated about intermediaries as a digital platform (social media) that claim to be providing a platform for exchange of ideas without having any contribution of their own and hence disclaiming responsibility for any wrongdoing that occurs on such platforms on receiving complaints. However, they do remove offensive content based on their internal guidelines.

 Various Rules, Laws and Regulations have been enacted to regulate and keep a check on social media.

• Provisions under the Bharatiya Nyaya Sanhita, 2023 (BNS)

Section-196 of BNS provides for punishment extending upto three years or fine or both for promoting or attempting to promote, on grounds of religion, race, place of birth, residence, language, etc., disharmony or feelings of enmity, hatred between different religious, racial, language or regional groups, etc. by

 words, either spoken or written, or by signs or by visible representations or through electronic communication (example social media) etc.

Section-294 provides punishment for the selling, exhibiting, etc. of any obscene material including book, paper, etc. This section also mentions the display of obscene content in electronic form.

Section-295 provides punishment for the selling, exhibiting, etc. of any obscene material including obscene content, etc. in electronic form to any child.

Section-78 states about the offence of stalking. This section would also be applicable in cases where a man stalks a woman online on social media i.e. do “Cyber stalking”, even after clear indication of disinterest.

Cyber stalking infringes with the basic right of privacy of a woman. Due to such crime women do not feel safe even at the comfort of their home.

India’s first cyber stalking case was reported when a  person called Manish Kathuria was stalking an Indian lady, Ms. Ritu Kohli by illegally chatting on a website using her name.⁵ He used obscene, obnoxious language, distributed her residence telephone number, and invited people to chat with her on the phone. Because of this, the lady faced a lot of mental harassment as she got obscene calls from various states of India and also abroad. She then called the Delhi Police to report the matter. But there was a strange dilemma as during the time of lodging the complaint, Indian Penal Code, 1860 was in force and till that time nothing like Stalking (or Cyber stalking) was provided in the Code. It was only after the Criminal Law (Amendment) Act, 2013 due to which  this crime was added vide Section -354D of IPC. The police at that time had registered her case under Section 509 of the Indian Penal Code, 1860 for outraging modesty which did not go in tune with the actual crime committed. This created the need to amend criminal laws to create new offences and make them punishable under law.

Section-356 provides for the offence of defamation which occurs when any person through words spoken, written or visual representations, etc. makes or publishes in any manner, any imputation regarding another in order to harm or knowing or having reason to believe that it would defame the person.

Since the description of the said offence include phrases like “any manner” for making or publishing the defamatory content it would also include in its ambit platforms like social media. Thus, cyber defamation or digital defamation is also punishable in India.

• Provisions under the Information Technology Act, 2000

Section-43 provides punishment to a person for unauthorised accessing of computer system, downloading data, introducing virus or disrupting services, etc

Section-66 refers to all the acts mentioned above in Section-43. The only difference here is the intention with which such offences are committed. It provides for punishment for committing such acts dishonestly or fraudulently.

The ingredients of this section indicate that the offence of hacking of social media account would fall under this section.

Section-66C mentions the offence of Identity Theft and provides punishment for fraudulently or dishonestly using electronic signature, password or any other unique identification feature of any other person.

Section-69A gives power to the Central Government to direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource to protect the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.

This section shall enable the government to block information on social media on the above-mentioned grounds.

Section-66D states about the offence of cheating by personating through communication device or computer resource. Hence, if someone’s social media account is unauthorisedly used for personating and thereby cheating someone to commit fraud, misrepresentation, etc then this section would be applicable.

Section-67 provides punishment for publishing or transmitting obscene material in electronic form.

Section-67A provides punishment for publishing or transmitting material containing sexually explicit acts, etc., in electronic form.

• Provisions under the Constitution of India

The Constitution of India gives the fundamental right to freedom of speech and expression under Article-19(1)(a). A person using this right can freely express his opinions over social media. But the right guaranteed under the Constitution comes along with some reasonable restrictions provided in Article-19(2) which are 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.

So, a person cannot use social media to propagate any statement out of his free will that may violate the reasonable restrictions cited above.

• Provisions under the Digital Personal Data Protection (DPDP) Act, 2023

The Digital Personal Data Protection (DPDP) Act, 2023 is a revolutionary Act that extensively deals with protection of personal data of individuals that are available online or in digital space.

Few terms need to be understood which frequently appears in the said Act for clarity -:

Section-2(i) defines “Data Fiduciary” as a person (whether alone or in conjunction with some others) determines the purpose and means of processing of personal data.

Section-2(j) defines “Data Principal” is the individual to whom the personal data relates and in case of a child and a person with disability, it would include the parents or lawful guardian

Section-2(k) defines “Data Processor” as a person who processes personal data on behalf of a Data Fiduciary

Section-2(n) defines “digital personal data” as personal data in digital form

Section-2(t) defines “personal data” as any data about an individual who is identifiable by or in relation to such data.

Terms of the Act:

Section-4 of the Act states that a person may process the personal data of a Data Principal as per the Act and lawful purposes in two circumstances—

Firstly, for which the Data Principal has given her consent; secondly, for certain legitimate uses.

Section-7 states out the purposes for which a Data Fiduciary may process personal data which is the specific purpose for which the Data Principal has voluntarily

provided her personal data and also for those purposes in respect of which she has not specifically indicated  that she does not consent to the use of her personal data.

For example: a person  visits a mall to buy certain branded clothes and at the time of billing, the receptionist asks him his email address for sending various festive offers and accordingly the person gives his email address and agrees to receive the offers through email. In this case the receptionist may process the personal data (email address) of the person (Data Principal) for the purpose of sending the festive offers.

Section-8 mentions protecting personal data of Data Principal which is under the possession or control of Data Fiduciary by making it obligatory to take reasonable security safeguards to prevent personal data breach and in case of personal data breach, intimation of such breach to the Data Protection Board of India and the Data Principal affected.

The section further provides for erasing of personal data of Data Principal by Data Fiduciary until and unless retention of such data is necessary for compliance with any law or causes such data to be erased by Data Processor that was made available by the Data Fiduciary to such Data Processor.

Section-10 states about appointing a Data Protection Officer by the Data Fiduciary which has been notified as Significant Data Fiduciary.

Section-18 provides for establishing the Data Protection Board of India.

Section-27 states about the powers and functions of Data Protection Board of India, namely

1. To direct any urgent remedial or mitigation measures in the event of a personal data breach, and to inquire into such breach and impose penalty on receipt of intimation made by Data Principal to the board.
2. To inquire into personal data breach breach and impose penalty on a complaint made by a Data Principal in respect of such breach or a breach of abiding the obligations by a Data Fiduciary regarding her personal data or the exercise of her rights.
3. To inquire into personal data breach and impose penalty on a complaint made by a Data Principal in respect of a breach in observance by a Consent Manager of its obligations in relation to personal data.
4. To inquire into and impose penalty on breach of condition of registration of a Consent Manager on receipt of an intimation of breach.
5. To inquire into breach of observance of the provisions of sub-section (2) of section 37 by an intermediary and impose penalty on a reference made by the Central Government.

Section-37 empowers the Central Government or any of its officers to give direction in the interests of the general public, to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, etc. in any computer resource that enables such Data Fiduciary to carry on any activity relating to offering of goods or services to Data Principals within the territory of India.

Clause (2) of Section-37 makes it mandatory for every intermediary who receives a direction to comply with the same.

Government, People and Influencers vis-a-vis Social Media:

Role of Government:

• Government should strictly implement data safety rules to ensure protection of citizens and sovereignty of the nation.
• Government can use enhanced technology to combat misuse of social media.
• Government needs to boost Indian origin applications and platforms to substitute foreign social media platforms to ensure that foreign entities do not endanger the national interest.

Role of People:

• People should use social media judiciously.
• People must be careful while sharing data on social media.
• Suspicious behaviour or people must be immediately reported to the concerned authority.
• Balance usage of social media.

Role of Influencers

• Influencers should influence youth and teens in a positive direction over social media.
• They must not promote unethical behaviour or scam applications or fraudulent games for personal benefits on social media.

 

References

1. ‘Social Media | English Meaning – Cambridge Dictionary’ (Cambridge Dictionary ) <https://dictionary.cambridge.org/dictionary/english/social-media> accessed 15 April 2025
2. Edosomwan and others SO, ‘(PDF) the History of Social Media and Its Impact on Business’ (Researchgate, January2011)<https://www.researchgate.net/publication/303216233_The_history_of_social_media_and_its_impact_on_business> accessed 15 April 2025
3. ‘Leveraging Social Media: Enhancing User Experience through Social Platforms for Government India Websites’(India)<https://guidelines.india.gov.in/activity/leveraging-social-media-enhancing-user-experience-through-social-platforms-for-government-india-websites> accessed 15 April 2025
4.  [2021] 14 S.C.R. 611
5. Deo, Dr. S. S. (2013). Cyberstalking and Online Harrasment: A New Challenge for Law Enforcement .