Laws and Legal Procedure for Reporting Posting & Sharing of Derogatory & Illicit Contents on Social Media; Lawyers Advice

In recent past, across India there has been an upsurge in online hate speeches, offensive comments and illicit contents on Social Media. Now, after careful observing the scenario it may be concluded that the centre of these hate speeches is Religion. Other than Religion, Political Ideologies which again has “Religious” touch to them are responsible for hateful speeches. Previously, people were able to hold back such opinions but now frustration and anger have forced them to bring out the poison. Now, practically it is not possible to persuade each and every individual to refrain from making such comments or posts. But, we may crackdown on such incidents with the help of law.

Now, we have several articles on Internet where Fake News has been held responsible for such poisonous speeches. However, the same is not always true as most of the time harsh realities force people to make such speeches. Whether it is religion or politics, our nation has always seen diversity in opinions. A healthy debate is fruitful for the prosperity of the society as it reflects its democratic principles. However, when such debates are heated up, un-parliamentary words certainly feature in the comment sections. This event is followed by report abuse or sometimes in post complete deletion of the post. Interestingly, in India we have laws based upon banning hate speech or offensive remark on the grounds of Religion, Ethnicity, Culture and Race. This restriction is not to curb the freedom of speech conferred upon the citizens, but to regulate hate and offence in order to avoid violence and mass killings. However, in relation to regulation of online hate speech, a proper code of conduct is still missing.

A small brief to the two recent incidents on Social Media with respect to Hate Speech and few provisions and points under the law dealing with Hate speech and offensive contents: –
As said in the earlier paragraphs, Social Media has turned out to be a tinderbox of hate speeches and illicit contents. In recent times, there was an incident in Bahrain, where a lady destroyed Idols of a deity belonging to a particular faith. Now, this incident was followed by response from two communities. One of the communities supported her act giving it a Religious backup and hate comments against the other community. Now, the other community responded them with some hateful comments out of anger. Another incident from Delhi, where communal riots incited social media users to attack each other with hate speech and offensive posts. This online ruckus was followed by several report abuse and account suspensions. But today it is significant for all of us to know the legal steps to report such cases of hate speech. Under Section 153 (b) of the Indian Penal Code anyone who on the ground of Religion, Race, Community, Sex, Sexual Orientation, Place of Birth and Caste uses words to threaten other person or a group of people or, to incite violence then he/she shall be liable for Hate Speech. Likewise, a person bringing hate, contempt, or disaffection to the Government of India either in writing or speaking shall face imprisonment under Section 124A of the Indian Penal Code. Now, here few points are necessary to be proven in the complaint register before the judiciary. These are as follows: –

1. Now, here the term, “disaffection” or “contempt” means sense of animosity or disloyalty.
2. It may be noted that, for a comment to fit in the category of sedition is necessary to signify that the same was not made to express disapprobation of the scheme or measure of the Government with a motive to get the required alternation done legally.

In Pravasi Bhalai Sangathan v. Union of India & Ors. Writ Petition (C) No. 157 of 2013, the Hon’ble Supreme Court of India, has made a keen observation that hate speeches are need be considered deeply by the Law Commission of India. Other than this, we have Section 505 A of the Indian Penal Code which clearly states imprisonment or punishment for people using words or displaying sign which is threatening in nature and if heard by someone may alarm him. Furthermore, something which may provoke violence against such other person.it may be noted that in 2018, a committee headed by T.K Vishwanathan submitted a report which recommended stringent laws against online hate speech. After the submission of the report, the Home Ministry in India wrote to the Law Commission to prepare a proper code of conduct on hate speech. Previously, In India we had Section 66A of the Information Technology Act, 2000 which made posting offensive content on Internet a punishable offence by imprisonment. However, this was seen as an obstruction to Freedom of Speech and thus the Hon’ble Supreme Court of India in Shreya Singhal v. Union of India (Criminal) No. 167 of 2012) struck down the Section 66A of the Information Technology Act, 2000. This judgement conferred upon the Internet user’s immense freedom to disseminate information to cause insult or inconvenience, as doing the same did not fell within reasonable exception to Freedom of Speech & Expression. This decision goes in consonance with the judgement of the Hon’ble Supreme Court in Supdt. Central Prison v. Dr. Ram Manohar Lohia (AIR 1960 SC 633), where it was held that a compromise between freedom of speech and social interests is a necessity but balance between the two or placing them on equal weightage is not feasible. This is because freedom of speech is something which cannot be suppressed. Until there is a situation which is not remote but proximate in nature and is dangerous to the social interests.

Before the Shreya Singhal case, under Section 79(3) of the Information Technology Act, 2000, an intermediary (Social Media) was required to take down or block access to illicit content, upon receiving any information about such hateful content. This troubling content was to be communicated to the intermediary either by the aggrieved person or via Government notification. But now, in case someone feels that some content on Internet is offensive or hateful, then he/she may simply report such content. But, now a court order or notification from Government body shall decide whether or not such content may be removed. Also, the power of conducting due diligence conferred upon the Social media intermediary has been narrowed. The same is because now such intermediary will have to wait for government or court order. Since, our courts and Government bodies are much more aware of the socio-cultural environment of India, they will deal with the matter more appropriately. Furthermore, we have Sections 67 and 67A of the Information Technology Act which deal with publishing or transmission of objectionable material in electronic manifestation and publishing sexual or explicit content in electronic embodiment. The Hon’ble Delhi Court in 2020 issued a notice to the Central government and social media intermediary Facebook, Twitter and Google for given clear position on the officers designated to block fake news content websites. Under the Information Technology Act, an officer is to be appointed not below the rank of Joint Secretary who shall issue directions to bring down such content from any of the aforementioned social media intermediary. Thus, it can be concluded that the authorities have diversity in their direction towards online hate speeches and offensive content.

Lastly, social media is platform to share views on life, politics, food, love and discover new friends. Sometimes, hate speeches and illicit contents do appear but here putting a blanket ban on such content may curb freedom of speech and expression. But, giving free hands to users or being biased towards a particular group of people may cause more problems. Well, there should be some code of conduct formulated to curb online political and religious posts taking violent turn. The same should be made as a reasonable restriction to the freedom of speech conferred upon the citizen of India. It is the time for the government to realise the consequences of hate speech and accordingly formulate laws on that basis. Also, we as users of Social media or any other medium need to control our emotions and act in a much sensible manner.
Authored By: Adv. Anant Sharma & Aniket Pandey