This is not the first time that we’ve come across the dark side of social media but this is most certainly one that has shook us to the core. For those of you unaware of what I am talking about, there was a group on Instagram by the name of “Bois Locker Room” consisting of some Delhi boys (many of them minors), coming from reputed families and elite schools of Delhi. The primary purpose of the group was to share pictures of girls as young as 14 years old and what followed was a series of lewd comments and trash talks. One of the girls whose pictures had been shared on the group came to know about the same and was able to arrange screenshots of the group chat which went on amongst the boys. Afterwards she shared the screenshots with some of the other girls whose pictures were shared on the group and they all put up stories on Instagram to bring this whole ‘Bois locker room’ chats out to the public. What is horrifying is that it did not end there. Hours after all this was posted, another screenshot from snapchat surfaced wherein a guy had texted his friend suggesting they could gang rape the girls. Yes read that again. Though there are speculations as to whether this screenshot is related to the whole Bois Locker room group chat, it is nonetheless horrifying. To make things worse, another group was formed by the name of ‘Bois Locker Room 2.0’ just a few hours after this incident urging members to join with fake ids in order to not get caught.
This whole incident not only makes you question the sickening mindsets of these young boys but also the dark side of social media platforms. Social media (a.k.a) a flag bearer of free speech and free flow of opinions. But what if your appalling acts in the garb of free speech affect my right to live with dignity? Isn’t it time we have some social media regulations and certain intermediary liability in place to cut out such abhorrent acts of cybercrime. We must understand that this incident is one of the many where lives have been affected due to the content shared on these social media platforms. Let’s not forget how how the Cambridge Analytica revelations opened our eyes as to how social media can not only affect individuals but also nations at large. Let’s not forget how misinformation spread through WhatsApp has resulted in lynchings or how propaganda and fake news on these platforms is spread like wildfire and has resulted in riots, swinging public opinions and what not.
India being a developing country with a considerable number of illiterate people, where almost everyone has access to fast paced internet and free flow of data online, It becomes a dire need to pin some responsibility on social media platforms in order to weed out such unwanted incidents and ensure cyber security. On 4th May, a notice was issued to Instagram by Delhi Commission for Women asking the social media platform to give information about the admins and members of the group and also if any action with respect to the same has been taken by them. Facebook also gave a response saying “We absolutely do not allow behaviour that promotes sexual violence or exploits anyone, especially women and young people, and have actioned content violating our Community Standards as we were made aware of it. We have policies that disallow the sharing of non-consensual intimate imagery, as well as threats to share such imagery and we take this issue very seriously. Ensuring our community can express themselves in a safe and respectful way is our top priority.”
But the question being can this be it? Had this issue not gone viral wouldn’t this group continue to exist? Also this most certainly isn’t the only such group to exist but is the one which got highlighted.
Intermediary has been defined under Section 2(w) of the Information Technology Act, 2000 as “with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”
Section 79 of the IT Act deals with the exemption to liabilities of the intermediary wherein it is stated that an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him provided that the function of the intermediary is limited to providing access to a communication system over which information is made available by third parties and is transmitted or temporarily stored or hosted; or the intermediary does not–
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
The above mentioned section has a wide ambit of exemption and almost no responsibility can be attributed to the social media platforms for content or activities that go around on it. Furthermore, as in the above mentioned case there is a likelihood of the proceedings being delayed due to the fact that Instagram has the potential to cite privacy concerns and thus leading to a delay in the entire enquiry and investigation.
This isn’t the first time the question of intermediary liability has sprung into the conversation with respect to the content being hosted by such intermediaries. Even in the past the question of intermediary responsibility arose in case of Dr. Sabu Mathew George V. Union of India and others. In this case the search engines/ intermediaries such as Google, Microsoft and Yahoo were suggested to introduce a system of auto block in case any search is being conducting on their platform or any advertisement is shown on their platform with respect to anything that is prohibited under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 specifically under Section 22 of the said Act. Even in case of Kamlesh Vaswani v. UOI the question of intermediary liability arose when the pornographic sites being blocked claimed safe harbour from liability for content they host, as long as they satisfy certain due diligence requirements under Sec. 79 of the IT Act. Even in case of Prajwala V. UOI wherein the court took suo Moto cognisance to the existence and circulation of sexual content on platforms such as WhatsApp, Facebook, Microsoft, the recommendation of auto blocking by the intermediaries was discussed . These cases gave rise to the question of the right and the extent of the right to freedom of speech of a citizen on online platforms.
With the rising influence of these online social media platforms on the people, government came up with the Information Technology Intermediaries Guidelines(Amendment) Rules, 2018 guidelines to monitor and hold the intermediary responsible in case of any unwanted activities on its platform. According to these (draft) guidelines, due diligence has to be observed by intermediary with respect to the content being hosted on the platform, the intermediary is also required to inform its users at regular time intervals the consequences in case of non compliance with the rules and regulations. The intermediary is also required to assist in providing its user’s information as asked for by any government agency or when assistance is required with respect to security of the State or cyber security issue to investigate and prevent such incidents. Under the guidelines the intermediary is also required to enable tracing out of such originator of information on its platform as may be required by government agencies who are legally authorised.
Though it is agreeable that the country needs certain provisions for intermediary liability, a cardinal question that snares the whole debate of intermediary guidelines is its effect on the privacy of the citizens. If the Data Protection Bill, 2019, is passed, social media companies will be required to provide ‘voluntary’ modes of verification to their users where they can identify themselves and obtain a mark of verification. These guidelines when read along with the above mentioned guidelines has a possibility to affect the very fundamental rights to Privacy and Free Speech which form the basic fibre of a democratic India. Therefore while it is the need of the hour to form certain guidelines with respect to the functioning and responsibility of social media networks, it is equally important to ensure that this does not affect the rights of citizens in general and ensure that guidelines with respect to privacy as laid down in K. S. Puttaswamy v. Union of India are adhered to.