Monday, December 26, 2011

Social Media Due Diligence In India

Social Media Websites in India are facing numerous challenges these days. From Technical Difficulties to Legal Challenges, Social Networking Sites in India are under constant pressure to comply with the Laws of India. Although there are no dedicated Social Media Laws in India yet the Cyber Law of India is prescribing certain provisions in this regard. Social Networking Sites must be aware of these Social Networking Laws of India as a failure to do so may attract Civil and Criminal Sanctions.

Cyber Law Due Diligence in India is directly emanating out of Indian Information Technology Act 2000 (IT Act 2000) and it is also prescribing Cyber Due Diligence for Indian companies. Social Media Due Diligence in India is also flowing out of IT Act 2000 that very few in India have appreciated. Cyber Law on Social Media and Networking Sites in India demands exercise of “Due Care” and “Due Diligence” by these Websites and people managing the same.

Of late, Social Media Websites in India are frequently made “Parties” to various Civil and Criminal Cases. The “Representatives” of these Websites are summoned by Courts of India vis-à-vis various Cyber Crimes and Cyber Contraventions. Cyber Crimes and Social Media Websites in India have become inseparable these days and this may make the individuals managing day to day affairs of such websites “Liable” for these Cyber Crimes and Cyber Contraventions.

Cyber Due Diligence is also closely related to Internet Intermediaries Liability in India. Internet Intermediary Laws in India mandate that Social Media Websites must be “Diligent” while dealing with Cyber Crimes and Cyber Contraventions committed through their Platforms. Once the matter is “Brought to the Knowledge” of these social Media Websites, their liability “Accrues” as Internet Intermediary for these Cyber Crimes and Cyber Contraventions. Subsequently, they cannot deny either the “Knowledge” or their “Liability” for these Cyber Crimes and Contraventions.

Even in the field of Intellectual Property Rights (IPRs), the liability of Social Media Websites may arise. For instance, Liability of Internet Intermediaries for Online Copyright Violations is very common. Even in India cases pertaining to Online IPRs Violations may grow in near future.

However, there are some “Disturbing Trends” as well that may impact the growth of Social Media in India. For instance, the decision of Department of Information Technology (DIT) Minister Mr. Kapil Sibal to ask Social Media Websites Of India to Pre Screen Users Contents before posting in neither Possible nor Feasible. Fortunately, Mr. Kapil Sibal “clarified” that DIT do not wish Social Media Websites in India to Pre Screen Users Contents.

Similarly, any decision to Ban or Block a Social Media Website or any other Website that is used by large segment of Public in India for alleged or potential Cyber Crimes or Online IPRs Violation or Cyber Contravention would be a “Bad Decision”. What is more surprising regarding Blocking of Websites in India is that the same is often done without much “Application of Mind”. Simply because a Party has asked for Blocking of a Website in India from a Court in India should not be a “Sufficient Ground” to grant such permission. In India Websites have been blocked for reasons that cannot stand any sort of “Judicial Scrutiny”. Ironically, it is the Indian Judiciary itself that is granting Blocking of Websites in India as a “Matter of Right” of the Complainant.

The Ignorant Judicial Websites Blockings in India has increased a lot. What is more surprising is that Internet Service Providers (ISPs) like Reliance simply files a case and gets an Ex Parte or other “Favourable Order” from an Indian Court. Then they simply Block the Websites without analysing the “Legality’ of such an action.

However, the “Fault” lies with Indian Judiciary that grants such “Blanket Orders of Blocking” without going into the “Merits of the Case”. For instance, how can a Court decide that a File Hosting or File Sharing Website can “Possibly Violate” the IPRs of the Complainant? By issuing such “Blocking Order”, that also in an Ex Parte Mode, Indian Judiciary is making the Indian Cyberspace more “Unpredictable and Unreasonable”. In my personal opinion, Websites Blocking in India by Indian Judiciary is neither Strictly Legal nor Strictly Constitutional and Constitutional Courts of India must take note of this unfortunate fact.

The real solution to this problem lies at enacting a Social Media Policy of India by Indian Government that can be a “Guiding Factor” for all, including Indian Judiciary. Suitable Framework and Guidelines for use of Social Media by Government Organisations in India must also be enacted and implemented properly. Indian Social Media Framework and Guidelines for Government Organisations has already been framed and all that is required is its “Proper and Actual Implementation” in India. The Guidelines for Social Media Contents Monitoring in India may also be issued very soon.

Social Media Websites Due Diligence in India needs to be taken “Seriously” by all Stakeholders. However, there need to be a “Harmony” between executive, Judiciary and parliament in India. The “Chaos” through which Social Media Jurisprudence in India is suffering must be removed as soon as possible.

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