Regulating Social Media: Law needs to catch up with technology

Noted American author and futurist Alvin Toffler in his famous work ‘Future Shock’ described the phenomenon as the increasing lag between the accelerated pace of change in different sectors and the limited pace of human response to it. “Change is avalanching upon our heads and most people are grotesquely unprepared to cope with it,” Toffler wrote.

The problems relating to regulating social media is an apt example of the gap between changes introduced by advancement in technology and the State’s response in terms of legislation that leaves much to be desired.

On November 27, the Supreme Court once again underlined the need for a "neutral and independent" body to regulate obscene, offensive and illegal content on social media platforms. A Bench led by CJI Surya Kant even went on to suggest age verification through Aadhaar for accessing online content deemed "obscene".

But it’s easier said than done. Due to its very nature, social media remains a challenge to the regulatory authorities.

The advent of social media has led to greater democratisation of the media scene not just in India but across the countries following liberal democratic norms. It has increased people’s access to information and their ability to share what they want with the rest of the world.

However, unlike the traditional media which has editorial oversight in place to ensure that no objectionable content is published, the social media is full of user generated content that often breaches lines of decency and borders obscenity and vulgarity. In many cases, users post contents which are defamatory, contemptuous to courts, undermine sovereignty and integrity of India or incite violence, creating public order issues.

Who can be held liable for such objectionable user generated contents – individual users or social media intermediaries such as X, Meta and Instagram?

Information Technology Act, 2000 -- which governs electronic communication and social media – provides for punishment to individual users. Section 67 of the ACT prescribes up to three years of imprisonment and a fine of up to Rs five lakh for first conviction and up to five years of imprisonment and a fine of up to Rs. 10 lakh for second or subsequent conviction.

However, Section 79(1) provides “safe harbour” protection to social media intermediaries against liability for user generated content, provided they act as neutral platforms and do not control or modify content.

In the Shreya Singhal case (2015), the validity of Section 66A, Section 69A and Section 70 was challenged. While declaring Section 66A unconstitutional for being beyond the constitutional framework of Article 19(2) of the Constitution that authorises the State to impose ‘reasonable restrictions’ on free speech, the Supreme Court upheld the validity of Section 69A and read down Section 79.

Section 66A prescribed three-year imprisonment for sending offensive, false, or objectionable information via computers or computer like devices.

Section 69A of the IT Act, allows the State to block online content for protecting sovereignty, security, defence, foreign relations, public order, and preventing incitement to offences – the grounds permissible under Article 19(2). The court upheld the validity of Section 69A as it had an in-built mechanism for checks and balance.

Regarding Section 79 of the Act, which deals with exemption from liability of social media platforms in certain cases, the court said an intermediary can be expected to act only after receiving actual knowledge from a court order or from the appropriate government or its agency that unlawful acts are going to be committed.

Now, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended in 2023) prescribe for due diligence obligations on social-media platforms requiring them to ensure user safety, removal of unlawful content, and awareness on issues such as privacy, copyright, defamation, and national security.

However, the Supreme Court has stayed certain provisions of the Rules, including those relating to creation of a government fact-check unit to identify "fake, false, or misleading" content related to the government.

There is a cat and mouse game going on between technology and law. Unfortunately, law is unable to keep pace with the rapid change in technology, leaving a gap that’s troubling both the society and the State. Instead of looking up to courts, the Executive and the Legislature must ensure that law catches up with technology. So far as users are concerned, they must realise that freedom comes with responsibility.