By Tulip De and Nishtha Das
While the world is currently battling with the novel COVID 19 virus, the Indian media and enforcement officers are dealing with a new crisis, which, in reality, is not so new.
The ‘Bois Locker Room’ controversy
A very harrowing incident was brought to notice on May 04, 2020 when a set of boys, mostly school going teenagers ranging between the age group 13-18 years, were found to be hosting a virtual group under the name ‘Bois Locker Room’ on Instagram, a widely popular social media platform in India, which was being used to exchange compromising private photographs of minor girls mostly from within the school circuits. The group was also being used for exchanging explicit and shaming comments about the minor girls and aggravated to planning and discussing rapes and other acts of sexual attack. Screenshots of the private chat group on Instagram exploded on social media and the news.
Although, hosting a group in general is not illegal and does not seem to be a suspicious activity as it is a convenient way to connect with a number of people simultaneously, the aforesaid incident makes out offences under the Protection of Children from Sexual Offences Act, 2012. The above incident brings up questions as to the extent of liability of social media platforms which sometimes end up being an unwary platform for unlawful activities, especially when the participants in questions are minor children who are easily susceptible to peer pressure.
Looking into the severity of the aforesaid incident, the Delhi Commission for Women (hereinafter, ‘DCW’) reportedly took suo moto cognizance of the matter and issued a notice to the social media platform Instagram and the Delhi Police seeking reply in this regard. The DCW was of the view that as the group contained several hundred members from the various school circuits, indulging in illegal activities, the gravity of the matter could not be ignored. The DCW also noted that since these illegal activities were being carried out on open media platforms, it was important that answers were sought from the social media company regarding any action taken in this regard.
As per media reports, the investigation officials are dissatisfied with the reply tendered by Instagram. As alleged by the officials, Instagram has only shared the details for limited accounts which can provide constrained information and cannot be of much help in finding the actual users of the accounts involved in the incident.
Even a public interest litigation has been initiated in the Delhi High Court on May 05, 2020, which seeks investigation of the entire incident by the Special Investigation Team (SIT) or Central Bureau of Investigation. The petition further seeks arrest of all such people who were involved in sexual offence and cybercrime against women and children.
An interim petition has also been filed in the Delhi High Court seeking liability of social media platforms in episodes like ‘Bois locker room’. The petition takes another turn and alleges that the content was not removed by Instagram even after they originated from fake accounts. The petitioner has also alleged that Instagram did not take any action against the fake accounts as it was only concerned about generating more profit by having increased number of user accounts.
Role of intermediary/social media platforms in such cases
Social media platforms have undoubtedly become an inseparable part of most of our lives and have inherently penetrated deep into the social lifestyle of people irrespective of age or gender, for exchanging information and experiences. Nevertheless, it is significant to understand that even though social media platforms provide and facilitate information exchange, they can control and regulate the information shared only to a certain extent.
The Shreya Singhal case
After Shreya Singhal V. Union of India, there was a massive change in the legal landscape for intermediaries like Instagram. The above mentioned case struck down Section 66A of the Information Technology Act, 2000 (hereinafter, ‘IT Act’) as it violated the fundamental right to speech and expression granted under the Constitution of India. Section 66A provided for the provision of punishment for sending offensive messages through any kind of communication service. Thus, the Shreya Singhal decision not only established the superiority of the freedom of speech granted under the Constitution of India, but also provided an ‘exempted’ status to intermediaries in certain circumstances. Social media platforms can be classified as intermediaries who can take refuge under Section 79 of the IT Act which provides exemption of liability for intermediaries under certain instances. It envisages ‘safe harbour protection’ for intermediaries in circumstances where the intermediary merely acts a facilitator. It protects the intermediaries to the extent till they are not involved in transmission or modification of the data or information on its platforms.
However, the Hon’ble Supreme Court of India in Google India Pvt. Ltd. v. Vishakha Industries and Anr., observed that the intermediaries could not use the shield of the safe harbour provisions to seek exemption from liability if such intermediary even upon receiving ‘actual knowledge’ of the content being unlawful, did not take it down. And ‘actual knowledge’ has been read down in Shreya Singhal (supra) to be through only a court order. Further, if an intermediary has been notified by the appropriate government authority or its agency regarding the unlawful content, it has to remove or disable access to within 36 hours, without vitiating any evidence. The intermediary is required to preserve such information for a prescribed minimum period for investigating purposes, or for such longer period as may be required by the court or government agencies who are lawfully authorised.
Intermediary Liability- Legal Provisions
So what happens if there is no court order or notification by a government authority or agency. In such cases, can an intermediary (such as social media platforms) be held accountable for removing or disabling access to illegal or objectionable content on their platforms, upon receiving a complaint from a user? Under the POSCO Act, even a stranger who has knowledge of an offence committed against a minor anywhere, including on a virtual platform, can file a complaint on behalf of the victim. The present incident, unlike in the Shreya Singhal case, involves a private chatroom and not public posts. Whereas, all laws regulating freedom of speech are in respect of public speech. Expecting social media platforms to monitor behaviour in private messaging groups or chat rooms may open yet another Pandora’s box vis-à-vis privacy laws protecting individuals. Interception, monitoring and handing over of information collected by social media platforms are governed by a set of laws such as the Telegraph Act, IT Act and the Code of Criminal Procedure (CrPC).
Even if Instagram, on receiving a report or complaint from a user, immediately removed the concerned private chatroom, there is no doubt that there are and would be hundreds or maybe even thousands of similar groups created and existing on the different social media platforms. Considering Instagram itself, the social media company has close of 90 million active users. It is no secret that accounts and groups on social media platforms are like the mythological Hydra, where if you cut off one hydra head, two more would grow back in its place. This raises concerns as to creating standards and regulations for monitoring of grave illegal content by social media platforms, while also handling privacy concerns from users.
The landscape of intermediaries’ liabilities is expected to increase in due time as more and more activities (personal or commercial) spread out into the virtual world. The above incident raises concerning but interesting questions. The original intent of social media platforms was to connect and exchange thoughts, information and ideas between people separated by distance. It would be interesting to see if a balance can be struck between regulation of the content and privacy laws of individuals.