This article is written by Sumedha Pradhan from National Law University, Odisha

Introduction

Social media has taken an unprecedented place in our everyday lives. We cannot envision a single day without scrolling through our Instagram feeds. According to a report by Global 2023^[1], a staggering 4.80 billion individuals actively engage in social media apps, despite the presence of numerous false accounts. Our ancestors could not have imagined a world of global connectivity, facilitated by social media. Like any groundbreaking invention, social media had a turbulent beginning, marked by challenges and further evolution. The first social media app was “Six Degrees”, developed by “Andrew Weinreich” ^[2]to find people with similar interests. Years later, similar multifaceted apps were created, connecting people worldwide. Forbes, reports there are currently 516 million active users in India, alone. This brings forth a pivotal question, a question of privacy and protection of our basic fundamental rights. Are these social media apps, a boon or a bane?

The widespread usage of social media has transformed communication. However, this global networking has sometimes clashed with the “freedom of speech and expression [Article 19 (1) (a)]”, i.e., “Fundamental Rights (Part III of the Indian Constitution)”. Yet, this provision is “subject to reasonable restrictions (decency and morality)”. Social media plays a dynamic role, as both a panacea and a curse for people. In 2012, during the fiery protests for the Nirbhaya Rape case, the exponential power of social media was vividly demonstrated. 19-year Sambhavi Saxena ^[3]was protesting against the Nirbhaya Rape case while being illegally detained by the police. She tweeted, “Illegally being held here, at Parliament St. Station Delhi with 15 women, pls retweet.” Instantaneously, the tweet garnered 1700 retweets and posts. The police were compelled to release her. This is not the only such illustration. In 2011, social media played a crucial role in the publicity of Anna Hazare’s “anti-corruption” campaign. This movement has been the focal point of many studies. Hundreds of people went out for support for his campaign, with 7 out of 10 topics trending on Facebook. It was still the dawn of social media. Later, in recent times, the active role of social media can be seen in the “#MeToo” movement, related to sexual harassment of women in the workplace. The raging voices of women helped in prosecuting the harassers who evaded the precincts of law. In a landmark case, “Priya Ramani v Mobaswar Jawed Akbar”. ^[4]The former was a journalist who accused the latter of sexual harassment. The court decreed in favor of the plaintiff, underscoring the transformative role of social media in bringing justice.

However, the usage of social media can be detrimental leading to the violations of fundamental rights. Governmental regulations, banning of social media giants (Facebook, Instagram, Snapchat), and laws related to hate speech and censorship can overreach the bounds of “Article 19 (1)”. A notable instance is “Bhasin v Union of India.”^[5], which dealt with the indefinite internet suspension in Jammu and Kashmir (2019). The Indian Government issued the “Constitution (Application to Jammu and Kashmir) Order, 2019” on August 5, revoking the state’s special status under Article 370. To control potential protests, the government imposed internet restrictions. Journalist Anuradha Bhasin filed a petition against this order. The Supreme Court ruled that reasonable limits on freedom of speech and expression cannot exceed temporal limits, underscoring that the government cannot override Article 19(1). highlights the fact, the government cannot override the constitutional power of Article 19(1).

Similarly, in “Shreya Singhal v Union of India (2015)”. ^[6]In this case, two women were arrested for a controversial Facebook post. This case challenged the constitutional validity of Section 66A of, the IT Act. The Cort highlighted that “the liberty of thought and expression is a cardinal value.”, resulting in a landmark judgment, delivered by J.Chelamswar and R.F. Nariman. The judgment set a precedent for other cases, such as “Zakir Ali v State of UP” ^[7](where an 18-year-old was arrested for putting a post against the Chief Minister, Aditya Yoginath). The court ruled in favor of the petitioner.

While delving into the pros and cons of social media, it is vital to address the question of “ethics”. ^[8]Ethics, the moral principles that drive our behavior, arise when we see the amassing strength of social media users. What do we mean by ethics? Perhaps the uncanny, unwanted intrusion into our private boundary. The right to be left alone, away in the shadows from public surveillance. An article called “The Web Means the End of Forgetting”, highlighted a peculiar scenario of a young woman, denied her college license due to some past photographs that created a sensation in the past. With the evolving use of technology, the boundary between personal and public life has become seamless, often overlapping each other. Users share information and participate in social communities, interact with the world. While at the same time, this acts as an open invitation to hackers and other perpetrators. To not fall into the trap, some ethical questions must be asked and prevent ourselves from taking the extreme step.

1. Does this post constitute oversharing?
2. Has any information in this post been distorted?
3. What impact might this post have on others?

Teens are the prime users of social media, and their inability to determine appropriate boundaries often leads to oversharing, making them vulnerable. This raises the question, “What is oversharing?” While some actions might seem harmless, location-based services can lead to tracing and damage to reputation. Moreover, the authenticity of content on social media is difficult to determine, as it is often altered and shared multiple times. Other ethical dilemmas include public bashing, negative reactions from the social media community, and improper anonymity through fake ID

Some steps have been taken in different countries abroad

1. In the United Nations, “Section 230” of the “Communication Decency Act” offers broad protections aimed at protecting individuals rights. Further has provisions for content moderation and researcher checks.
2. The European Union, “Digital Services Act” (DSA) has not yet been publicly released, includes content moderation policies, and asks social giants to provide valid reasons for content removal.
3. In the United Kingdom, like DSA it has put out a similar bill, the “Online Safety Bill”. The bill mandates that intermediaries conduct risk assessments both internally and through independent auditors. These assessments will be supervised by regulators to ensure transparency and accountability.

Indian legislative framework too needs to adopt such measures. Visages of such have already been witnessed in “SECTION 69A” “SECTION 79” and “SECTION 505(2)” of IT Rules. Intermediary guidelines and the ethics code introduced in 2021 take that a further step ahead with a chief compliance officer, robust mechanism, and grievance redressal mechanism. Yet, compliance remains an issue. Some challenges like “volume and speed”, “contextual nuances” and “automation and human review to get accurate results along with content-sensitive moderation.” This should align with “Article 19” of the Constitution. Here are a few ways it can do so while striking down harmful speech.

Firstly, ^[9]Restrictions should be made only when they defy the Constitution. For instance, “Public order”, “national security”, “rights”, and the “reputations of others”. Secondly, clearer definitions should be provided to provide clarity on the type of speech. Thirdly, stress should be put on “contextual evaluation”. It has myriad benefits, For instance, sophisticated moderation mechanisms. Fourthly, Ensuring proportionate and consistent redressal mechanisms is vital too.

Some court precedents ^[10]can be seen too. “Indian National Congress v Union of India”. The Supreme Court clarified that online speech could only be restricted if it posed a genuine threat to public order. “Kamlesh Vaswani v Union of India” wherein the “Supreme Court” ruled social media can block “child pornography.” In “Faheema Shirin RK v State of Kerela” decreed that individuals can freely express their opinions without any fear of censorship.

Conclusion

Social media is a strong tool that has made the globe interconnected, communicating everything, but at the same time, it has numerous ethical and legal challenges. While it promotes freedom of expression and has been instrumental in social movements, it also has set off red flags about privacy, misinformation, and a general tendency toward government overreach. These dynamics require strong legal frameworks and ethical guidelines for a balance. India’s emerging legislative steps are to protect its users without prejudice to the guarantees laid down in the Constitution. Transparency in content moderation, accountability, and contextual sensitivity will remain the keys. Social media will have the best use and regulation possible, ensuring individual freedoms and public interest.

References

1. Kemp, S. (2023, April 27). Digital 2023 April Global StatShot Report — DataReportal – Global Digital Insights. DataReportal – Global Digital Insights. https://datareportal.com/reports/digital-2023-april-global-statshot ↑
2. Hines, K. (2022, November 8). The history of social media. Search Engine Journal. https://www.searchenginejournal.com/social-media-history/462643/ ↑
3. The Times of India: Latest News India, world & Business news, Cricket & Sports, Bollywood. (n.d.). The Times of India. https://timesofindia.indiatimes.com/social/the-year-social-media-came-of-age-in-india/articleshow/17824856.cms?from=mdr ↑
4. Columbia Global Freedom of Expression. (2021, April 12). Akbar v. Ramani – Global Freedom of Expression. Global Freedom of Expression. https://globalfreedomofexpression.columbia.edu/cases/akbar-v-ramani/ ↑
5. AIR 2020 SC 1308 ↑
6. AIR 2015 SC 1523 ↑
7. Shreya Singhal v. Union Of India AIR 2015 SC 1523. (n.d.). https://www.legalserviceindia.com/legal/article-10124-shreya-singhal-v-union-of-india-air-2015-sc-1523.html ↑
8. Barrett-Maitland, N., & Lynch, J. (2020, September 9). Social Media, Ethics and the Privacy Paradox. IntechOpen eBooks. https://doi.org/10.5772/intechopen.90906 ↑
9. James, S. (n.d.). Social Media Ethics: Why You Should Have a Policy. https://www.streamcreative.com/blog/bid/52570/social-media-ethics-why-you-should-have-a-policy ↑
10. S., & S. (2022, July 14). Social media, content moderation and free speech: A tussle – The Leaflet. The Leaflet – an Independent Platform for Cutting-edge, Progressive, Legal, and Political Opinion. https://theleaflet.in/social-media-content-moderation-and-free-speech-a-tussle/ ↑