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, for an aggrieved, it is important to comprehend some crucial points and legal steps for reporting such content. Firstly, it may be noted that, “Hate Speech” has not been particularly defined under any legal provision in India. However, there are legal provisions under few legislations dealing with Hate Speech, namely,

1. Indian Penal Code, 1860:
   a. Section 295A of the Indian Penal Code, states that hurting religious sentiments of an individual or group of people deliberately by making offensive remarks against Religion or its beliefs has been made a cognizable and non-bailable offence.
   a. Section 153A of the Indian Penal Code says that promoting enmity between various group of people on the basis of religion, residence of birth, race, language, caste etc and performing acts in violation of maintaining peace and brotherhood is a punishable offence. Furthermore, it is a cognizable and non-bailable offence.
   b. Section 505(2) of the Indian Penal Code has clearly stated that publication or circulation of any false content, statement or fake news which may cause public mischief or animosity among various classes or community is regarded a non-bailable and cognizable criminal offence.
   c. Section 499 of the Indian Penal Code states that anyone who deliberately makes any comment in writing, sign or any representation with an intention to damage the reputation of the other person shall be liable of Defamation. It may be noted that Defamation under the given section constitute a non-bailable and cognizable offense.
2. Information Technology Act, 2000:
   a. 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. Offenses committed under the given two sections shall be non-bailable and cognizable in nature.
   b. Section 69A of the Information Technology Act states that in certain situations the Government or any nodal officer appointed by the same has the power to take down the access to such portal or content which the same think is bringing threat to state’s integrity, sovereignty, public order, and friendly relations with other states. For the intermediary not complying with the directions of the nodal agency, the same shall be regarded as a cognizable offence under Section 69A(3) of the Information Technology Act.
3. Representation of the People Act, 1951:
   a. Section 8 of the Representation of the People Act, 1951 clearly specifies that any person who indulges in activity which amounts to illicit use of freedom of speech and expression shall be disqualified from contesting any election.
   b. Section 123(3A) and 125 of the Representation of the People Act, 1951 clearly states that there shall be no enmity promoted on the grounds of religion, race, caste, creed, community or language in connection with the elections. Such activities shall amount to corrupt electoral practices. Offenses under Section 125 when read with (r/w) Sections 505(2) & 153-A of the Indian Penal Code are both cognizable and non-bailable in nature.
4. Code of Criminal Procedure, 1973:
   Section 95 of the Code of Criminal Procedure confers power upon the state to penalise anyone who publishes or circulates anything under Sections 124A (Sedition), 153A (Promoting Enmity between different groups on different grounds), 153B (Assertions made in opposition to National integration), or 295A (Deliberately outraging religious sentiments of any class or community).

Measures suggested by the Judiciary to curb violence arising out from Hate Speech & Offensive Remarks: –
In Tehseen S. Poonawalla v. Union of India & Ors (Writ Petition (Civil) Number 754 of 2016) the Hon’ble Supreme Court of India placed few guidelines to prevents incidents of mob lynching and other Hate Crimes caused by Hate Speeches and Fake News on Social Media or any other medium. The Hon’ble Court gave the following preventive guidelines to the State Government, namely:

1. Appointing a Senior Police Officer who is not below the position of Superintendent of Police as the nodal officer in each district. This nodal officer along with a DSP officer shall form a special task force to investigate intelligence report regarding hate speeches, and fake news.
2. This Nodal Officer, along with Station House officer of the district is supposed to hold meetings on regular basis with a local intelligence department so as to investigate instances of mob lynching or violence and furthermore to take proper steps to curb the dissemination of hateful or offensive content through different Social Media platforms or any other means.

In the landmark judgement of Shreya Singhal v. Union of India (Writ Petition (Criminal) Number 167 of 2012), the Hon’ble Supreme Court recommended to insert a new section under the Information Technology Act which shall contain the following measures to deal with offensive and illicit contents on Computer resources:

1. Making it a punishable offence to torture, harass, trouble, intimidate or threaten anyone though internet communication on Computer devices or any other electronic means.
2. Using any obscene or lascivious content, or taking any such image of anyone, or forcing anyone to commit such filthy and indecent act should be made a punishable offence.

Forwarding messages containing illicit or hateful content is equal to endorsing such messages: –
In S.VE. Shekher v. The Inspector of Police (Special Leave to Appeal (Crl.) Number 4496 of 2018), the Hon’ble Madras High Court rejected the anticipatory bail application of S. Ve. Sekhar for making an offensive and derogatory remark against women journalists. The two most important points made by the Hon’ble High Court of Madras for rejecting his anticipatory jail application are:

1. The derogatory remark made against the women journalist went against the Constitutional rights guaranteed to women in India.
2. Any message forwarded on an electronic media is equivalent to accepting and endorsing such messages.

Hate Speech made under Section 153-A of the Indian Penal Code leads to registration of First Information Report against the Accused: –
In Harsh Mander & Anr v. Government of NCT of Delhi & Ors (Writ Petition (Crl.) No. 565 of 2020) Harsh Mander, a retired bureaucrat had filed a petition against three leaders belonging to a political party for raising hateful slogans, under Section 153A of the Indian Penal Code in relation with the protest against Citizenship Amendment Act, 2019. Considering the gravity of the issue, the Hon’ble Delhi High Court directed the Delhi Police to take, “conscious decision” in lodging a First Information Report against the three accused leaders.

Contents in violation of the Community Standards of the Social Media intermediary is taken down: –
In Swami Ramdev and Anr v. Facebook, Inc & Ors (Civil Suit Number 27 of 2019), there was a question raised by the Hon’ble Delhi High Court before Facebook, a social media intermediary that whether a content which violates its (Facebook) terms and policies is geo-blocked or globally blocked. To which Facebook responded that, it is the Community Standards of Facebook which determines whether or not a content is to be allowed on the social media platform. Almost all issues which are relevant throughout the world such as bullying, harassment, violence and spam are addressed by the Community Standards. And, in case, Facebook feels that such contents are in violation of the Community Standards, then they are taken down.

The Hon’ble Supreme Court’s position with respect to Hate Speech and Illicit Contents on Internet: –
Before the pronouncement of judgement by the Hon’ble Supreme Court of India in the Shreya Singhal v. Union of India Writ Petition (Criminal) Number 167 of 2012, 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. It may be noted that court order or notification from Government body shall decide whether or not such content may be removed. Also, the power to conduct due diligence, initially conferred upon the Social media intermediary has been narrowed.

Though India does not have a legal provision specifically dealing with the issue of Hate speech. But, Hate Speech or any offensive remark hurled deliberately to outrage religious beliefs is deemed a punishable offence in India under various legal legislations. Furthermore, sharing or publishing sexual or lascivious content on internet/computer resources with an intention to corrupt the minds of person seeing it is also punishable under several legal provisions. Notwithstanding anything, both High Courts and the Hon’ble Supreme Court of India have from time to time given different directions in cases relating to deliberate hate speeches. Contents on Internet containing offensive material with respect to religious beliefs, caste, and woman have mostly been taken down. Every Social Media intermediary has their own set of rules to deal with instances of hate speeches and illicit contents. Several guidelines have also been formulated by the Hon’ble courts in different times to curb Hate speeches in order to prevent violence.
Authored By: Adv. Anant Sharma & Aniket Pandey