Social
networking websites have a very crucial role to play in fields like
business and commerce, personal relationships, leisure activities,
political usages, speech and expression, etc. This is the reason why
social media websites like Facebook, Twitter, LinkedIn, etc are very
popular world over.
India has also a significant population that is
attached to various social media or social networking websites. This
has given rise to unique law enforcement and regulatory challenges
before the countries around the world. While the United States has
the advantage in the sense that most of these social networking
websites are located within the legal and territorial limits of US
authorities yet law enforcement authorities of India and other
countries find it really difficult to manage law enforcement related
activities arising due to abuse of these social networking websites.
The conflict
of laws in cyberspace has further widened the law enforcement
access deficit that India is presently facing. Most of the law
enforcement agencies of India openly admit that when the server of a
website is located outside India it becomes next to impossible to
prosecute a cyber criminal using such a website and committing an
offence against Indian citizen.
For instance, Bangalore cyber police is facing
investigation
difficulties with Facebook and it is well known. Similarly, the
Delhi Police was too late to get access to IP address of the accused
who hacked
the e-mail account of Amrita Rai. It is also well known that most of
the social networking websites that are operating in India are not
complying with the laws of India.
The Information Technology Act, 2000 (IT Act 2000)
is the cyber law of India that governs legal issues pertaining to
e-commerce, e-governance, cyber contravention and cyber crimes.
However, the cyber law of India is a piecemeal legislation that
covers multiple areas and in this attempt it is not covering even a
single area effectively. India must either formulate a comprehensive
and holistic techno
legal framework or it must adopt specific and dedicated laws for
various fields. There is no doubt that India needs a new and better
cyber law and the old one must be repealed.
It has been suggested that foreign websites and
social networking websites must establish
servers in India. It has also been suggested that India’s own
social networking websites must be established so that compliance
with Indian laws can be ensured. As per the amended Indian Companies
Act, 2013, the directors of India companies can be held liable for
cyber law
and cyber
security related techno legal compliances. Individuals, companies
and their directors are also required to observe cyber
law due diligence (PDF) under the IT Act 2000.
India has been using mutual
legal assistance treaty (MLAT) to mutually cooperate on law
enforcement related issues. However, MLAT is not always successful as
the country to whom such a request is issued may deny cooperation if
the act committed by the accused is not an offence as per the laws of
that country. For instance, in the past US has refused
to issue summons upon companies like Facebook, Google, etc citing
similar grounds. So the MLAT route is not full proof and it is full
of surprises.
Some stakeholders have started using social
networking websites for business purposes in such a manner that they
violate Indian laws. However, as the servers of these social
networking websites are located outside India and are governed by
foreign laws, Indian law enforcement agencies are helpless to enforce
Indian laws against such stakeholders.
For instance, online pharmacies related legal
compliances are absolutely
ignored in India by most of the online pharmacies operating from
India. As a result Perry4Law
has suggested that online pharmacies laws must be enacted
by Indian government. Similarly, the online card games websites in
India are also in a limbo
and they are operating in a legally
risky manner. This is more so when social networking websites are
used for games like online rummy, online poker and other online card
games.
India has no dedicated privacy
and data
protection (PDF) laws. Indian government is also very committed
to violate the civil
liberties of Indian citizens in cyberspace. This is the reason
why we have no privacy rights in India that can protect the privacy
of Indian in cyberspace. Further, e-surveillance tools like Aadhaar
have been clubbed with projects like Digital India and this has made
the digital India initiative the biggest digital
panopticon of human history. The social networking websites
provides further data and information to Indian government for data
mining purposes and this result in violation of privacy of Indian
citizens.
Nevertheless, business and other stakeholders are
required to comply with applicable privacy, data protection, cyber
law and other laws applicable to their respective fields. One of
the requirements that is applicable to all stakeholders including
e-commerce players pertain to observation of cyber
law due diligence (PDF). Similarly, e-commerce
laws in India are also required to be adhered to by various
stakeholders. Since the stakeholders are also using the platform of
foreign companies, they are also subject to the laws of foreign
jurisdictions as well. Thus, there is no significant benefit of
hosting a website on a foreign server if the law enforcement agencies
of India are committed to punish an offender.
Perry4Law
Organisation (P4LO) hopes that this article would help various
stakeholders in sensibly using the social networking websites so that
they remain on the right side of the law. At the same time P4LO also
believes that very soon social networking related laws and
regulations would be clearly enacted by the Indian government for the
larger benefit of all stakeholders.
Source: Global
Techno Legal News And Views.
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