Published on 19th March 2025
Authored By: Palak Mahajan
Guru Nanak Dev University
INTRODUCTION
Social media has become an inseparable part of the life of an individual. From a small child to an old-aged man social media has grasped everyone into its cycle. The problem is not the usage of social media the problem is the illegal and overuse of social media which has a negative impact on the society.
Article 19 (1)(a) of the Constitution of India provides the citizens freedom of speech and expression. The use of social media to express one thought and means of communication is a
fundamental right guaranteed under Article 19 (1)(a). By using Article 19 (1)(a) of the Constitution of India as a shield people are seen to exploit the right of freedom of speech and expression guaranteed through the use of social media. The rise in social media usage is becoming a cause of stress and needs proper regulation. As of October 2024, there are about
5.22 billion social media users worldwide, roughly 63.8% of the global population, while in India, over 862 million people are on social media, constituting around 59.90% of the country’s population.[1]
CONSTITITUONAL FRAMEWORK AND JUDICIAL APPROACH
The term freedom of speech and expression refers to the expression of one view, thought and expressions. The right of speech and expression is exercised by the people through communicating their views and expression and social media is a way of communication between the people.
The Constitution of India guarantees the citizens right to freedom of speech and expression under Article 19(1)(a). The right incorporated under Article 19 (1)(a) is not absolute but subject to certain restriction which are enshrined under Article 19(2). Article 19(2) allows the state to make laws which curtail the freedom of speech and expression on the grounds involving 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.[2] Also, Article 21 of the Constitution of India i.e. the right to life and liberty incorporates the right to access the internet.3
The Indian Judiciary has played an important role in the interpretation of media laws. Through various judgements the judiciary has highlighted the use of social media as a fundamental right under Article 19 (1)(a) and Article 21 of the Indian Constitution.
In Anuradha Basin v. Union of India[3], the Supreme Court opined that Freedom of Speech and Expression through the internet is one of the integral parts of Article 19(1)(a). It was also provided that an undefined restriction of internet services would be against the law and orders for internet shutdown must please the tests of proportionality.
In Faheena Shirin RK v. State of Kerala & Ors[4], it was held that right to access internet to be included in right to life and liberty and privacy under Article 21 of the Indian Constitution.
In Shreya Singhal vs. Union of India[5], the Supreme Court of the India declare Section 66 A of the Information Technology Act,2000 as unconstitutional. The section was held to be violative of Article 19(1) of the Constitution of India. It was held that the section does not pass the test of the reasonable restriction under Article 19(2). The judgment laid the importance of freedom of speech and expression. Further, the judgement helped to establish that the restrictions to be imposed on the freedom of speech and expression cannot be arbitrary.[6]
LEGISLATIVE MEASURES
Since there has been an increase in the social media platforms and there has been potential rise in the number of people using the social media platforms the need for a comprehensive social media law is there. In India various media and cyber laws are used to regulate social media.
Various legislation dealing with the social media are as follows:
- The Information Technology Act, 2000
The following sections of the Information Technology Act,2000 regulates the social media
1. Section 66 (a)
As per this section any person who sends any information that is offensive and specifically if created to annoy, spread hatred, criminal intimidation a message by any means of communication device shall be punished with imprisonment which may extend to a term of three years and fine.[7]
2. Section 69 (a)
This section provides the government the right to ban or stop public access to any information which is not consistent with provisions of the government if it relates to sovereignty, security, or public order. The section provides punishment with imprisonment for a term which may extend to seven years and shall also be liable to pay a fine.[8]
3. Section 79
The section provides immunity to the intermediaries and the intermediary shall not be liable for any third-party information, data, or communication link made hosted by him if the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.[9]
- The Bhartiya Nyaya Sanhita,2023
The following sections of Bhartiya Nyaya Sanhita,2023 regulates the social media
1. Section 152 BNS, 2023
The section 152 BNS,2023 punishes any one who incite secession, armed rebellion, or separatism against the nation by the use of various means, including electronic communication. The electronic communication includes the use of social media platforms.[10]
2. Section 197 BNS, 2023
The section 197 of Bhartiya Nyaya Sanhita, 2023 punishes anyone who by words or by signs or by visible representations or through electronic communication or otherwise causes any imputation or assertions that are prejudicial to the national integration. The term electronic communication encompasses the use of social media platforms.[11]
3. Section 299 BNS, 2023
The section 299 of the Bhartiya Nyaya Sanhita, 2023 punishes anyone who by deliberate and malicious intention does any act to outrage the religious sentiments of the people. The act includes acts by use of the electronic communication.[12]
4. Section 353 BNS, 2023
The section 353 of the Bhartiya Nyaya Sanhita, 2023 punishes anyone who makes, publishes, or circulate statements, false information, rumours, or reports, including through electronic means with intention to cause communal harmony on grounds of religion, race, place of birth etc.[13]
5. Section 356 BNS, 2023
The Section 356 of the Bhartiya Nyaya Sanhita, 2023 punishes the defamation and includes defamation through electronic media.[14]
• The Constitution of India
The right to use social media is a fundamental right and is incorporated in the following articles.
1. Article 19 (1)(a)
The Constitution of India guarantees the citizens right to freedom of speech and expression under Article 19(1)(a). The right to use social media is incorporated under Article 19(1)(a) and is a fundamental right.
But the right under Article 19(1)(a) is not absolute and is subjected to restrictions mentioned under Article 19 (2) i.e. involving 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.[15]
2. Article 21
The right to use social media is incorporated under Article 21 of the Constitution of India i.e. right to life and personal liberty and the right to privacy.
These are the various enactments and laws which regulate the use of social media platform in India.[16]
Digital Data Protection Act, 2023
The Digital Data Protection Act, 2023 acknowledges the ever-growing significance of personal data protection and aims to strike a delicate balance between individual rights and an organisation’s legitimate data-processing needs. The main objective of the Act is to regulate the processing of digital personal data and respect individuals’ right to protect their data while recognising the necessity of processing and using such data for lawful purposes. The Act aims to establish a comprehensive legal framework to govern digital personal data protection in India.[17]
The draft rules under the Digital Personal Data Protection (DPDP) Act, are released for public feedback and provides that E-commerce platforms, social media intermediaries, and online gaming platforms with significant user bases in India will soon be required to erase personal data of users three years after it is no longer needed.[18] The Digital Data Protection Act, 2023 is a recent act whose main focus is to protect the digital data of the users using various online social platforms. This helps to ensure protection and provides a sense of security to the users.
NEED FOR REGULATION
Social media is a way by which the people describe their thoughts and views. It is a means of communication used for transmission of one’s thoughts and beliefs. Social media has a powerful impact on the people. Social media is a powerful instrument which can be used to bring a change in the society. It is not the social media which is the problem. The problem lies on the how it is used. If it is used in a positive way it can be a strong weapon to bring positive change in the society, on the other hand if used in a negative way it can create a havoc.
Since last few years there has been serious concern regarding the misuse of the social media platforms. There has been increase in cases in relation to misinformation, hate speech, privacy violations in relation to social media misuse. Also, cyber bullying, hacking, fraud, online threats, identity threat etc. are some of the crimes related to social media. There is a need to regulate social media so as to ensure that the positive results can be reaped into the society.
The social media should be regulated to prevent the spread of misinformation and fake news, to prevent hate speech from spreading and to provide privacy to the people. Further there has been increase in instances in relation to obscenity and pornography. So, to keep a check on these sensitive issues there is need to regulate the social media. The regulation of the social media should be in such a way that ensures balance between harmony and responsibility.
PROBLEMS IN REGULATING SOCIAL MEDIA
There is a need to enact a comprehensive law that will regulate social media. The need is to maintain the balance between freedom and responsibility. The law regulating social media should aim to create equilibrium between an individual’s fundamental rights on one side and responsibilities on the other side.
It is often felt that laws regulating social media can create problem to one’s fundamental right of free speech and expression. Legislations governing the social media are generally considered by many as a direct attack on the fundamental right of freedom of speech and expression. The law regulating social media should be framed after considering that the right to social media is an individual’s right to freedom of speech and expression and the right to one’s life and personal liberty. So, in any situation, there should be no unnecessary restriction on one’s rights.
Further, the laws dealing with social media require that there should be accountability without mass surveillance. The rift is always felt by social media platforms between the local laws and the global laws. So, the law regulating social media should be such that it complies to both Indian as well as international standards.
CONCLUSION
In today’s era social media has become an important mode of communication through which people express their thoughts. It can be used as a mode to bring revolution in the society. Besides having a lot of benefits the social media is being misused by the people. The misuse of social media is possessing a great threat to society. Misinformation, hate speech, obscenity, pornography, privacy violations are example of just certain threats arising from the abuse of social media platforms. The need of the hour is to regulate the social media platform. The legislation regulating the social media should aim to create an equilibrium between freedom and responsibility. The legislation to regulate the social media should incorporate all the aspects in relation to crimes associated with the social media. The law in relation to social media should keep in mind to create a balance between an individual’s fundamental rights on the one side and responsibilities on the other side.
REFERENCES
[1] Tushar R Behera, “Social Media user Statistics in India 2025” (Dec 16, 2024) GrabOn
<https://www.grabon.in/indulge/tech/social-media-statistics/ > accessed 18-01-2025
[2] The Constitution of India, Article 19 (1)(a), Article 19 (2) 3 The Constitution of India, Article 21
[3] Anuradha Basin v. Union of India (2020) AIR 2020 SUPREME COURT 1308
[4] Faheena Shirin RK v. State of Kerala & Ors (2020) AIR 2020 KERALA 35
[5] Shreya Singhal vs. Union of India (2015) AIR 2015 SUPREME COURT 1523
[6] Dhyeya Law <https://www.dhyeyalaw.in/shreya-singhal-v-union-of-india> accessed 18 January 2025
[7] Information Technology Act,2000, Section 66 a
[8] Information Technology Act,2000, Section 69 a
[9] Information Technology Act,2000, Section 79
[10] Bhartiya Nyaya Sanhita, 2023, Section 152
[11] Bhartiya Nyaya Sanhita, 2023, Section 197
[12] Bhartiya Nyaya Sanhita, 2023, Section 299
[13] Bhartiya Nyaya Sanhita, 2023, Section 353
[14] Bhartiya Nyaya Sanhita, 2023, Section 356
[15] The Constitution of India, Article 19 (1)(a), Article 19 (2)
[16] The Constitution of India, Article 21
[17] Deloitte <https://www2.deloitte.com/in/en/pages/risk/articles/the-digital-personal-data-protection-act2023.html> accessed on January 19,2025.
[18] ‘India’s DPDP Act draft rules mandate e-com, gaming, social media platforms to delete personal user data after 3 years’ (January 04,2025) Business Today <https://www.businesstoday.in/technology/news/story/indiasdpdp-act-draft-rules-mandate-e-com-gaming-social-media-platforms-to-delete-personal-user-data-after-3-years-
459591-2025-01-04> accessed on January 19, 2025
