NOVEMBER 1, 2022

ASSIGNMENT II
MEDIA LAW: RESEARCH PAPER

C Eshaan (20 JGLS)

bba llb c 2020-2025
20011840
TOPIC:

SOCIAL MEDIA REGULATION IN INDIA

TITLE:

How does the Indian legal system regulate the social media platforms, the
efficiency of the laws and the problems.

RESEARCH QUESTION:

How does social media regulation in the Indian legal system perform in terms of
efficiency and what are some of the problems associated with it?

RESEARCH METHODOLOGY:

The research paper has been researched and written after analysing research papers
publications by other authors, journal publications from both international and national
sources, and newspaper and academic articles. We have also used surveys and findings to
establish our claim. We have also taken case precedents, ratios, and judgments and used
statutes and acts. All the sources are reliable to the best of our knowledge and are used after
updated amendments whenever required.
Introduction:

The question of regulation in media:

Should media be regulated or not

Media has been given the tag of the fourth pillar of our democracy; the function of media in
today’s world has been dynamic, they are not only putting out information but also function
as a watchdog and protectors of our democracy, overwatching and keeping the checks and
balances over the three branches of the government, the executive, the legislature and the
judiciary. In this paper, we will be addressing the main issue of whether or not media has to
be regulated. There are two schools of thoughts, first, the believers of free media, who
encourages that there has to be no restriction on the media for it to function properly and to
achieve a true human society, with basic human rights to voice their unfiltered opinion. The
second school of thought is to put restrictions on the media, to keep the checks and balances
of various activities that could hamper the society. Let us analyse the principle arguments of
both schools of thoughts.

Free media;

Communication, maybe via speech or expression or otherwise is the most fundamental

human right, the society has been formed on the foundation of communication and
interactions between humans, the logic of a developed society is the ability of free speech
between humans. The human society can only grow if there is unrestricted and free
communication, this aids in the free exchange of ideas and knowledge and hence every
human must be given a right to free speech and expression, India amongst most of the
countries are the key advocates in guaranteeing free speech to its citizens. The Indian
constitution provides every citizen the freedom of speech and expression under article 19(1)
(a) of the constitution. The freedom of speech has a broad range that encompasses the
freedom to express one's thoughts, to share information, to receive information, and even to
disagree with the current democratically elected governments. It also has to do with the
freedom of thought, creative imagination, and thoughtfulness that are necessary for a person
to achieve self-realization. Furthermore, it is essential to have a good democratic
administration in which people are well-informed about political events, giving freedom to
express ones opinion without any restriction can bring in the true essence of this function. All
these rights transgress into the media rights since media is the forum or medium of
expression. The definition of media given is ‘a medium of communication’ this
communication can be leisure, news, sound, knowledge or visual photos and videos amongst
many others.

John Stuart Mill’s in his article on free speech theory, projects three ideas why free
speech is compulsory, “firstly, it helps to evolve the truth, secondly it helps to mould good
governance and democracy, and thirdly it promotes individual autonomy.” 1 Press rights in
India have been given its due recognition, press and media have been used interchangeably
and rightly so, press is an expression or communication is a printing sense and media is a
wider term encompassing all the channels of communication. Since media is a form of
communication, and free communication is the fundamental underpinning of the human
society, media rights must be recognised and the principle of free media must be encouraged.

Instances such are curbing the internet during the Jammu and Kashmir riots 2 or
banning NDTV news network3 are examples of government interventions being misused in
the name of reasonable restriction, and these are the precise reason why the control of the
media must not be with the government.

Reasonable restriction:

All fundamental rights are absolute and overrides all the legislature which are in
contravention with it, but these fundamental rights also come with reasonable restriction.
While article 19(1)(a) gives the freedom of speech and expression, article 19(2) places

1
Shah, N. (2021) “Why censorship is self-undermining: John Stuart Mill’s neglected argument for free
speech,” Aristotelian Society Supplementary Volume, 95(1), pp. 71–96. Available at:
https://doi.org/10.1093/arisup/akab010.

2
Staff, S. (2021) Jammu and Kashmir: 93 internet shutdown orders issued after SC ruling on
communication restrictions, Scroll.in. Scroll.in. Available at: https://scroll.in/latest/1011995/jammu-and-
kashmir-93-internet-shutdown-orders-issued-after-sc-order-on-communication-restrictions (Accessed:
November 6, 2022).

3
Why was NDTV India banned and what does the law say? (2016) Hindustan Times. Available at:
https://www.hindustantimes.com/india-news/why-was-ndtv-india-banned-and-what-does-the-law-say/
story-Rp7oyyYZ0MFzbV6omyMnbO.html (Accessed: November 6, 2022).
reasonable restriction on them. The underlying idea behind this is to put a check and balance
on media as there might be unreasonable intervention on the functioning of the society. What
it means by this is that, if media is unregulated, there might be communication of information
that might hamper the society. A few examples of repercussions of unregulated media might
be the false information, copyright violations ( print and media), online ragging/lunching
(bullying; social media), all this might lead to chaos in the society.

We all know, publishing and propagating false information might lead to undesirable
issue which could effect and hamper the society. If we weigh the pros and cons of both the
school of thoughts, its only rational to devise a plan where the media must be free and fair yet
controlled to an extent that it does not harm any individual or the community at large. So the
true question of the topic media regulation must be, the extent to which media can and should
be regulated.
In the paper, we will be looking at social media, the newest addition, and we will be
looking at the nitty gritty of regulations, should there be regulations, why regulations, its
effect on the society and if regulation what kind and its extent, and whether the current legal
system works on par with the society and ensure proper regulation.

Why social media should be regulated?

Its unimageable to even think of a world today without social media, the incremental
growth social media and the internet has seen in the last 20 years is commendable. India with
a very vast young population, almost 70%, is a wide used of social media. Facebook, twitter,
WhatsApp, Instagram and YouTube have millions of users. When the users are saturated, the
responsibility to protect that vast users will lie on the government. Unlike other media such as
print or broadcasting, social media is different because it is, in the true sense only a medium
of communication and not the creator or propagator of the content, the users and creators of
the content are people/ members of the platform.
With the wide reach and numerous kinds of activity that social media inculcates, and
with the sheer number of people participating, it becomes immensely important that both
individual rights and safety must be protected, this protection can only be given if the social
media can be regulated. Social medias growth has ended up creating security vulnerability
and other criminal activities, as unregulated as it can get, social media has been a medium for
criminal activities such as stalking, cyber bullying, cyber-crimes, data theft and harassment.
Recent scenario.
Social costs:
The social media furthers a negative human behaviour symptoms, on mental health
and positive state of mine, looking at people enjoying with their life’s will have an adverse
impact on the other persons mind, the fear of missing out, A discussion on how social media
platforms should be regulated to reduce their social costs, such as negative effects on mental
health and antisocial behaviour, has become necessary in light of the effects of social media
on human behaviour and society functioning.

Unauthorised and unfair use of data and other information by the social media
provider:

The WhatsApp privacy policy update of 2021, google location access etc. This
hampers with both the policy of the law of land as well as the information and data of the
user, which is a privacy code violation. As majority of the users of social media are
individuals who know nothing of the repercussion’s and no knowledge of social media and its
workings, they are unaware of the ways to protect their personal information and are most
susceptible to cyber related crimes4. Also, social media and internet has been accused of
social polarization, where people are chambered contents related to their ideology and are not
allowed or provided much about the opposite views. Excessive societal separation is
undesirable in order to maintain the democratic institutions that protect free expression and
other fundamental rights.

The fake news:

We have been aware of all the buzz around misinformation or fake news on internet
and social media, and this has been the most difficult to control. It is often really difficult to
identify the misinformation, and to check its authenticity, and its usually late before this can
be done as the news travels fast on the internet. Since, its difficult to trace back to the person
who created it, because of the privacy and anonymity reason, its giving the creators of fake
news space to thrive. Press has been around for longer time and so as the law governing the
4
Joshita Pai and Nakul Nayak, “Initial Inputs for The Project on Freedom of Expression and The Private Sector
in The Digital Age”, Centre for Communication Governance, National Law University, Delhi,
https://www.ohchr.org/Documents/ Issues/Expression/PrivateSector/CentreCommunicationGovernance.pdf.
press misinformation too, since social media and interned is fairly new no proper law has
been in place. The repercussion of these fake news can been seen in the number of people
being lynched due to these information, the information of cow slaughtering or kidnappers.

Undermining democratic institutions

Through the undetected use of political ads during elections, the dissemination of
false information about governmental entities, etc., unrestrained social media has also
permitted local and international players to interfere with the democratic functioning of
countries. For instance, the Facebook-Cambridge Analytica data scandal centered on the
British consulting firm Cambridge Analytica's unauthorized acquisition of the personal
information of millions of Facebook users, which was primarily utilized for political
advertising during the 2016 U.S. Presidential election5.

The keep a check and balance on these criminal activity, it becomes the responsibility
of the government to regulate social media. These regulations will be designed to increase
social media platforms' responsibility for the information they host. Implementing content
traceability would be another goal, ostensibly to promote accountability and transparency. As
we started our paper, we come back to the same point, the question of “the extent of
regulation in social media”.

How is social media regulated?

There is no standalone legislation in India that govern or regulates the social media
platform, although there have been efforts in setting up a committee in the central level, the
efforts taken by the government for a legislation on social media platform is minuscule, as the
provisions of information technology act and rules have been proven to apply in the case of
social media also, the government has no urgency in forming a separate legislation. Also, the
Indian constitution has been applied in cases of privacy and free speech. The current Indian
legal jurisprudence on social media regulation promotes the idea of co-regulation model, a

5
Confessore, N. (2018) Cambridge Analytica and Facebook: The scandal and the fallout so far, The New
York Times. The New York Times. Available at:
https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html (Accessed:
November 6, 2022).
regulation model based both on statutory provisions as well as self-regulation by the social
media platform itself.

The two methods:

a) The statutory provisions: state regulation
b) Self-regulation:
Self-regulation is the administration and enforcement of laws by organisations
through internal procedures6. Self-regulation involves regulating, by way of coming
up with rules and regulations internally in the organisation, monitoring the work in
terms of these rules and regulations, where these regulatory setup has been tailor
made to fit the organisations requirements. The practice of self-regulation can be
found predominately in the media law field of the European union. This self-
regulation can be achieved in various ways,
1. Co-operative regulation
2. Delegated regulation
3. Devolved regulation
4. Facilitated regulation
It has rules that have been established and chosen by the people and
organisations to whom they will apply, as well as the creation of processes and
enforcement mechanisms. For the simplicity of the paper, we will not go into
the details of the system.

Problems with the Indian social media regulation:

Information technology act:

As provided above, with Indian legal jurisprudence lacking in providing a separate

robust legislation for social media platform, the regulatory machineries in India are forced to
rely on the information technology 2018 and its corresponding rules, Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which are formed
within the gambit of the Indian constitution and its sects. The information technology rules
2021 has replaced the older more redundant Information Technology (Intermediaries
Guidelines) Rules, 2011, which in the opinion of critics and academicians, failed to even
uphold the international standards for the code for the rights and protections of social media
intermediaries are concerned. The previous rules was inefficient in dealing with social media,
the new OTT platform and other digital media websites, India has tried to come up with a
6
Denise E. DeLorme, “Early Journalists and the Evolution of Publicists’ Stunts: From Circus
Ballyhoo to Professionalism” 2 Journal of interdisciplinary & multidisciplinary Research 27
(2008).
new robust rules only lately and the new set of rules which answers to these missed points in
the previous rules is one such. But to access the true efficiency of these laws, we’ll have to
delve deeper. Lets analyse the efficiency of the law in the upcoming sections.
The information technology rules 2021, a subsidiary of the Information technology
act, not only applies to the internet intermediaries’ but also to social media platforms, this act
was formed out of the previous rules (2011) for the sole purpose to include in it gambit the
rules of regulation of social media platform. An appreciated rule in furtherance of regulation
of the social media platform is meant to do two major functions, first to give the appropriate
definition
to the nuanced social media notion and to distinguish important social media networks from
other social media platforms, secondly, to give legal validation for the hybrid legal system of
self-regulation and governance by the state action. The government asserts that it considered
several factors while drafting these guidelines, taking into account India's expanding use of
social media platforms and any pertinent social repercussions of the communicated material
on these platforms on the one hand, and on the other, the right to free speech and the raising
concerns of privacy. There are issues with in the new rules, being a monotonous rules
governing different kinds of media platform under one single act, for example, the definition
of the intermediaries given to the OTT platform such as hotstar, prime or Netflix, social
media provider, like Facebook or Instagram, messaging services like telegram and
WhatsApp, or media news outlets are given the same definition under the rules, whereas all
the platform being fundamentally different from the other, need nuanced approach.
Therefore, the new restrictions are drawing a lot of criticism from various groups within the
stakeholders for their contradictory methods.7

Flawed assumption by the information technology rules 2021

As we have already talked about social media being different from the other
platforms, where in social media, the content creator and the consumer are not the social
media platform but the users themselves whereas in media platforms such as press or media
websites, the content creators as themselves, the platforms. But as the problem in the
information technology rules 2021 as identified above, that it generalises all the media
platforms under its definition of media intermediaries. The information technology rules 2021
assumes that the social media platforms are not merely the medium or the platform for

7
Torsha Sarkar, “New intermediary guidelines: The good and the bad”, Down to earth February 26, 2021,
https://www.downtoearth.org.in/blog/governance/new-in termediary-guidelines-the-good-and-the-bad-75693.
content sharing rather are the creators and publishers of the content themselves, this is
evidently clear from the language and definitions and rules in the information technology
rules 2021 that provides that social media platforms will be liable for the content and are held
accountable for the actions of its users.
Inefficiencies in the law:

The information technology rules 2021 mandates the social media platforms to
mandatorily screen their content being circulated on their platform, this unnecessary burden
has been put by the flawed assumption put forth by the inefficiency of the information
technology rules 2021 in observing the different kinds of media. The mechanism social media
cope with this unnecessary burden is by creating an algorithms to monitor the content being
circulated, since the contents are vast and almost impossible to monitor by human efforts,
algo seems the best option. There are two contentions, one that the algorithm is inefficient
and doesn’t fulfil the purpose of law, second, that it violates the privacy and freedom of
speech of the content creators.

The inefficiency of algorithms:

The point of contention is not that algorithms is ineffective, the problem is that the
law forces the social media to create a content regulation when the content is not being
produced by them. The algorithms cannot be as effective in monitoring the fake news or
obscene posts/ content and there are instances where the post not violating any provisions
were taken down. Hence, the main concern is that social media platform are being forced to
monitor the content which they do not produce with a system not efficient.

The violation of rights:

Like we have seen, the content monitoring system of the social media platform is the
algorithm, and not always effective. The algorithm flags contents which are not in contention
with any provision, and might miss a few which are. When the algorithm flags contents
which do not go against any law, and removes it as per the mandate of the law to save itself
from the liability, the right of the content creator is violated, his views are being
unnecessarily restricted and the freedom of speech is violated. Not just this, people are
entitled to their opinion and views, which are subjective, one person’s view might offend
other and otherwise, mentoring this would be impossible. Also, when a content is posted in
platforms such as Instagram where you allow who can see your post, that is in Instagram only
people who follow you, that you have allowed them to follow you, can only access your post,
but, for the sake of content monitoring, the social media providers will be able to access your
post without you giving express consent to it and this in my opinion would violate the privacy
of the user. In the event that these restrictions are broken, intermediaries will no longer be
granted the safe harbour under Section 79 of the IT Act, and may be subject to criminal
penalties. As a result, these SMPs may decide to delete even legal content out of a precaution.

The main point to take away with this is that there are many ways to monitor content,
but the law is ineffective in observing that different platforms have different ways that can be
delt with, the privacy policy in WhatsApp and Instagram is different from YouTube and takes
different actions, but due to the redundant laws presently applying to social media which
doesn’t recognise each differently but clubs every social media intermediaries as same, the
law lacks nuanced treatment and is inefficient in this way. Since the rules assumes that the
social media platform are the perpetrators of the offence, they are unnecessarily overworked
to surpass this assumption. The social media platform are now compiled to appoint a
compliance officer, algorithms to identify the perpetrator the content amongst others
requirements which are unnecessary overwork for the social media platform. To surpass these
liabilities the social media has to regulate itself and this gave the rise of the self-regulation of
social media in the legal jurisprudence.

Perpetrator traceability: grave violation.

The information technology rules has identified two different applicability and
compliance mandate for two category of social media, one, social media intermediaries,
second, significant social media intermediaries, the difference being that significant social
media intermediaries have users more than 50 lakhs. The information technology Rules also
impose criminal penalties for failure to comply with the additional due diligence, which
appears to have an unjustified impact, a restriction on free expression made possible through
intermediaries, and the potential to have a chilling effect. The act puts the burden of
traceability on these significant social media intermediaries to track the post or message to
the creator or generator. What this means is, in a significant social media intermediaries
platform, such as WhatsApp or Facebook, the social media platform must be able to track a
post or a message to its original creator, the person who first created or the originator of the
post. The rationale behind it is to find the perpetrator of the offence, if the offence is
punishable. There are two issues with this, first, this provision violate the fundamental right
of privacy guaranteed under our constitution. The messaging platforms such as WhatsApp
and telegram are end to end encrypted, but the law mandates that the social media platform
trace the original creator of the message, this on the simple and plane reading is violation of
privacy of the users. Second is the efficiency of traceability, we have already established that
the algorithm of the social media platforms are inefficient is dealing with content moderation,
as because of the vast number of users there cannot be any human intervention or human
methodology to deal with the same, and there are research suggesting that these platforms are
inefficient in tracing the creator and the original perpetrator/ creator of the content can falsify
and go around the algorithm8. Further suggesting that this mechanism is very inefficient. The
fact that the traceability has been mandated on the end to end encrypted platform is a cause of
concern when it comes to rule 4(2) traceability clause of the information technology rules. 9

Conclusion:

The legal system of social media in India is that of a hybrid system where both state
actions as well as the self-regulation monitors social media, this system has been applied by
the European Union countries and set the precedent of a very effective law. The problem in
Indian legal jurisprudence in terms of efficiency of the social media regulation is manifolds,
first, there is no separate legislation that deals with social media, the law fails to observe
different social media platforms and a very monotonous law. Second, The main takeaway
from this is that there are numerous ways to monitor content, but the law is ineffective in
observing that different platforms have different ways that can be delt with. For example,
WhatsApp and Instagram have different privacy policies than YouTube and take different
actions, but because of the redundant laws currently applying to social media, which don't
recognise each differently but group all social media intermediaries as the same, the law lacks
nuanced protection measures. which are very distinct and same set of laws apply to both. The
law which oversees the regulation mandate provisions on the social media platform
inefficient and tasks of regulation by way which is an overwork for the social media
8
Manoj Prabhakaran, “On a Proposal for Originator Tracing on WhatsApp,” An Independent Expert Report,
https://drive.google.com/file/d/1vivciN8tNSbOrA9eZ8 Ej0mCAUBzRWu5N/view.
9
Manoj Prabhakaran, “On a Proposal for Originator Tracing on WhatsApp,”
https://drive.google.com/file/d/1vivciN8tNSbOrA9eZ8Ej0mCAUBzRWu5N/ view.
platform. The problem with this is not the implementation but the violation of rights by the
users.

The law mandates originator traceability, this in an essence is to find out the creator of
the content or the person who is the first circulator of a content, the rational is that if the
content is offensive in any way, the person who set the content in motion should be held
liable. But, this traceability has been mandated in platforms such as WhatsApp, where the
privacy policy states an end to end encryption of the user data, which would violate the
fundamental right to privacy.
The content monitoring program also restricts the user in the same way, by
monitoring their posts and contents. Also, the inefficient algorithms restricts the free speech
of the user which was depicted in the above chapter. The main contention with the legal
system that regulates the social media is not only that its inefficient in its true capability, but
also that it violates the rights of free speech and privacy.

Reference:

(PDF) Social Media Platform Regulation in India – a special reference ... (no date).
Available at:
https://www.researchgate.net/publication/356131803_Social_Media_Platform_Regulati
on_in_India_-
_A_Special_Reference_to_The_Information_Technology_Intermediary_Guidelines_an
d_Digital_Media_Ethics_Code_Rules_2021 (Accessed: November 6, 2022).

Dubey, N. (2021) Social Media Rules 2021: Transforming Social Media - Social Media -
India. S&A Law Offices. Available at:
https://www.mondaq.com/india/social-media/1075196/social-media-rules-2021-
transforming-social-media (Accessed: November 6, 2022).

Sharma, Parth (2021) “A critical evaluation of social media regulation in India,” SSRN
Electronic Journal [Preprint]. Available at: https://doi.org/10.2139/ssrn.3973556.

Mehta, B. (2022) A critical evaluation of social media regulation in India, SSRN. Available
at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973556 (Accessed: November
6, 2022).

https://www.ijlmh.com/paper/social-media-and-its-regulations-in-india/
https://ili.ac.in/pdf/p3_meera.pdf