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LEGAL ACTION AGAINST FAKE ACCOUNTS ON SOCIAL MEDIA

September 3, 2021

By Arpit Kalra and Ragini Ghosh

Social Networking platforms are an extremely popular and useful communications tool in the digital age. Their growth has not only attracted advertisement and marketing agencies but also imposters who steal personal data and represent them as their own. These imposters are able to trick web users into divulging sensitive personal information.

FAKE ACCOUNTS ON SOCIAL MEDIA AND THEIR IMPACT

A fake account is essentially an account on any social media platform where the displayed details are actually dishonest, or even fraudulent. Misrepresentation on fake accounts, using fake details mislead the general public, into disseminating inaccurate information, or collecting financial or personal details.

As per the data collected in 2019 by Swedish e-commerce start-up A Good Company and analytics firm HypeAuditor which included the assessment of more than 1.84 million Instagram accounts across 82 countries, the top three markets with the highest numbers of fake accounts were the United States (49 million), Brazil (27 million), and India (16 million).  Moreover, as per Facebook’s enforcement analytics report, it is estimated that about 5% (i.e. close to 90 million) profiles on their platform are fake.

TYPES OF FAKE-ACCOUNTS AND WHAT THEY ARE USED FOR

Different kinds of fake accounts can be found on social networking sites. Most fake accounts are made using the information provided by other users, without their knowledge. These accounts are usually used by imposters to attain sensitive information such as credit card details, other financial details, or personal information from users.

It is reported that another set of fake accounts are created by political parties and corporations to influence media trends. These accounts are usually created by bots which imitate human behavior, in order to promote a particular ideology or product. There have been several instances wherein these accounts continuously use hash tags and repost content to increase their visibility and popularity.

Many celebrities have also reported fake accounts that are being used in their name. Such accounts use the personal data and information of a celebrity to create a seemingly official account. Imposters use these fake accounts to cheat and defraud lay fans/supporters.

REGULATION BY SOCIAL MEDIA PLATFORMS AGAINST FAKE ACCOUNTS

There is no specific law in place that holds social media platforms liable for the creation of fake accounts within their network. This is because the network only acts as an intermediary and does not directly create the account. The safe-harbor immunity given under Section 79 of the Information Technology Act, 2000, protects intermediary social media networks from liability for content posted thereon by third parties. Under Section 79 of the Information Technology Act, 2000 an online portal which acts as an intermediary i.e only receives, stores, transmits or communicates an electronic record will not be liable for any third-party information or communication that is available on it. However, the provisions state that upon receiving ‘actual knowledge’ that any information, data or communication link residing in the portal is used to commit an unlawful act, then the intermediary becomes liable to take such content down. Unfortunately no clarity has been provided with regard to what constitutes ‘actual knowledge’. Although the Shreya Singhal[1] case required a ‘court order’ to be considered as actual knowledge, the Delhi HC in MySpace[2] case removed this need with regard to removal of content.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has incorporated various regulations intended to be helpful in combating the nuisance of fake accounts. Under these guidelines, every social media site has the responsibility to set up a grievance redressal mechanism wherein complaints can be lodged against any content available on that site. Under rule 3(2)(b) if the intermediary upon the receipt of complaint, finds that the impugned content is in the nature of impersonation in an electronic form, including artificially morphed images, then it shall take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it. These guidelines and the grievance redressal system set up under it would be supportive for users to report fake profiles. The guidelines also state that intermediaries are required to report cybersecurity incidents and share related information with the Indian Computer Emergency Response Team.

An additional responsibility is placed upon significant social media intermediaries, who have more than 50 lakh registered users in India. These websites are required to (i) appoint an additional chief compliance officer who ensures that the websites are acting in compliance with the IT act (ii) appoint a grievance officer who resides in India and (iii) publish a monthly compliance report with the necessary information.

Most platforms, within their Terms of Use, have provisions against impersonation and can take action when a profile is not being operated by the persons themselves. All major social media platforms such as Facebook, Instagram, Snapchat, etc. provide an option for users to report profiles that are fake or participating in unlawful activities. This system does not assure that all reported profiles will be removed, however investigations are launched to cross-check the authenticity of reported profiles. Furthermore, some websites such as Facebook have set up their own verification and enforcement agencies with the aim of identifying and removing fake accounts.

Social media websites are also improving their system by employing various verification methods that provide credibility to genuine and authenticated profiles. This allows users to differentiate between fake and real profiles and further allows the platform to identify potentially impersonating/fraudulent profiles.

LAW GOVERNING FAKE ACCOUNTS

Every day there are several persons who become victim to various offences committed by imposters. These victims have the right to report such instances as the attackers are in violation of various provisions of the Indian Penal Code (fraudulent impersonation is a statutory offence) and the Information Technology Act, 2000.

The most relevant section for fake accounts is Sec 66D of the IT Act which states that:

Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend up to three years and shall also be liable to a fine which may extend up to one lakh rupees”. Moreover Sec 66C of the Act states that “Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine with may extend to rupees one lakh.”

In case of fake accounts that are used to cheat others by appropriating the personal information of other users without their consent or by using made-up personal details, the creator can be held liable under Section 416 of the IPC which deals with cheating by personation. The provision states that a person is said to ‘cheat by personation’ if he cheats by pretending to be some other person. The imposter would be held guilty whether the individual personated is a real or imaginary person. Under Section 468, any person who commits forgery of an electronic record for the purpose of cheating would also be held guilty.

NEED FOR REFORM

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is a welcome step towards protecting the interests of users in various social media websites. The guideline specifies that complaints must be acknowledged within 24 hours and disposed of within 15 days. However modifications need to be introduced to improve the application of criminal provisions to electronic offences.  Moreover, social media networks need to increase their vigilance in detecting fake profiles and they must be held responsible to ensure authenticity of information available on the platform.

[1] 2013 12 SCC 73

[2] MANU/DE/3411/2016(Delhi HC)

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