scholarly research journal's issn 2319-4766 sjif impact
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Scholarly Research Journal'S ISSN 2319-4766 SJIF IMPACT FACTOR 5.403
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Department of Commerce, University of Mumbai, International Conference EPIOC-2017
Scholarly Research Journal'S ISSN 2319-4766 SJIF IMPACT FACTOR 5.403
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Department of Commerce, University of Mumbai, International Conference EPIOC-2017
139 Legal Liabilities and Obligations on Networking Sites- Vaishali Anuj Ghodeswar
Dr. Shreedhar Mundhe 917-922
140 Challenges Ahead Of Post Office Savings Bank – A
Review
Prof. Niveditha Shetty 923-925
141 Rural Tourism: It‘s An Alcove That India Can Offer Dr Malathi Iyer 926-930
142 Study Of Fact Sheets Of Mutual Fund Companies – An
Important Tool For Prosperity Of Investors. Ms. Fleur Peter D‘souza
931-938
143 Challenges Of Child In The Modern Era With Special
Reference To Child Labour In India Asst. Prof. Purba Ganguly
939-943
144 The Study Of Internal Audit System And Its Application
In Corporate And Non-Corporate Entities Ms. Kajal Kumari 944-950
145 Banking Sector In India: Challenges And Opportunities. Dr. Arun Gaikwad
Mrs. Anuradha C. Hastak 951-957
146 Opportunities And Challenges In Indian Economy
Through Startup India
Jyoti Bansal
958-963
147 Role Of Entrepreneurship In Economic Development Vijayta 964-966
148 Cashless Society: Drive‘s And Challenges In India Devender Singh 967-975
149 An Analytical Study Of CSR Practices Of Indian
Commercial Banks In Strengthening Women
Empowerment
Dr. Dalbir Singh Kaushik
976-983
150 Management Education In India: Opportunities And
Challenges Ms. Taqdees Rehan Pawaskar 984-989
151 Does Risk In Stock Represent Risk In Business? Dr. Nishikant Jha
Mrs. Archana Khemka
990-994
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LEGAL LIABILITIES AND OBLIGATIONS ON NETWORKING SITES
Vaishali Anuj Ghodeswar,Assistant Professor, Nagindas Khandwala College of Commerce ,Arts and
Management Studies
Dr. Shreedhar Mundhe,Assistant Professor, Department of Law, University of Mumbai,Fort
INTRODUCTION
A social networking service (also social networking
site ,SNS or social media)is an online platform that
is used by people to build social networks or social
relations with other, people who share similar
personal or career interests ,activities,backgrounds
or real –life connections.The variety of stand alone
and built-in social networking services currently
available in the online space introduces challenges.
It seems that everyone is a member of a social
network these days. Whether it's your kids on
MySpace and Facebook, or your colleagues on
LinkedIn, people are taking advantage of these new
online meeting spaces to make friends,
communicate and expand business opportunities.
But what are the legal obligations that arise out of
the use of social networks, both for the user and the
sites themselves? The law in this area is still
relatively unsettled and constantly changing, but
some recent developments have created intriguing
precedent, and legislation in motion promises to
keep things interesting for the foreseeable future.
The main types of social networking services are
those that contain category places (such as former
school year or classmates), means to connect with
friends (usually with self-description pages), and a
recommendation system linked to trust. Social
network services can be split into three types:
socializing social network services are primarily for
socializing with existing friends (e.g., Facebook);
networking social network services are primarily for
non-social interpersonal communication (e.g.,
LinkedIn, a career and employment-oriented site);
and social navigation social network services are
primarily for helping users to find specific
information or resources . A study reveals
that India has recorded world's largest growth in
terms of social media users in 2013.A 2013 survey
found that 73% of U.S. adults use social networking
sites.
Role of social media in business and consumer
market in India cannot be undermined. It is the
change in consumers‘ behavior that is changing the
role of social media in India. With time, use of
social media has seen a drastic change from just
used for fun to fun plus knowledge and marketing.
For business purposes, Facebook is the most
important social media platform as there is
customers‘ engagement, followed by Twitter,
YouTube and blogging. Social media is used by
brands to build communities for interaction and
spreading news.
Advantages and Disadvantages of Social
Networking
Social networking is a relatively new advancement
in technology. They are different platforms or
websites that people can create personal profiles,
share pictures, videos, and text updates to their
friends, family, and people from all over the world.
News, trends, videos, pictures, and just about
anything else can go ―viral‖ in a matter of hours,
which makes you wonder, what is all of the craze
about? It is very easy to get carried away with the
attention and interactions you can have twenty four
hours a day on websites like Facebook, Twitter, and
Instagram, but what are the pros and cons that these
social networking sites are having on our society?
The Pros of Social Networking
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1. Staying Connected
2. Finding People With Common Interests
3. Invaluable Promotional Tool
4. Information Spreads Incredibly Fast
5. Helps To Catch And Convict Criminals
The Cons of Social Networking
1. Perpetuates False And Unreliable Information
2. Causing Major Relationship Problems
3. Cyber Bullying Is A Growing Problem
4. Used To Profile and Discriminate In The Job
World
5. The Addiction Is Real
Laws Pertaining to Social Networking Sites
The two most important statutes to consider when
discussing the legal liabilities and obligations of the
social networking sites are Section 512(c) of the
Digital Millennium Copyright Act and Section
230 of the Communications Decency Act.
Section66A.of IT Act: Punishment for sending
offensive messages through communication service,
etc.
Any person who sends, by means of a computer
resource or a communication device,—
(a) any information that is grossly offensive or has
menacing character; or
(b) any information which he knows to be false, but
for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer
resource or a communication device,
(c) any electronic mail or electronic mail message
for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such
messages,
shall be punishable with imprisonment for a term
which may extend to three years and with fine.
Explanation.— For the purpose of this section,
terms ―electronic mail‖ and ―electronic mail
message‖ means a message or information created
or transmitted or received on a computer, computer
system, computer resource or communication
device including attachments in text, images, audio,
video and any other electronic record, which may be
transmitted with the message.
Supreme Court strikes down Section 66A of IT Act
which allowed arrests for objectionable content
online
The Supreme Court declared Section 66A of
Information Technology Act as unconstitutional and
Struck it down.
This section had been widely misused by police in
various states to arrest innocent persons for posting
critical comments about social and political issues
and political leaders on social networking sites.
The court said such a law hit at the root of liberty
and freedom of expression, two cardinal pillars of
democracy.
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The court said such a law hit at the root of liberty
and freedom of expression, the two cardinal pillars
of democracy. The court said the section has to be
erased from the law books as it has gone much
beyond the reasonable restrictions put by the
Constitution on freedom of speech. The Supreme
Court said section 66A was vaguely worded and
allowed its misuse by police.
The court, however, upheld the validity of section
69B and the 2011 guidelines for the implementation
of the I-T Act that allowed the government to block
websites if their content had the potential to create
communal disturbance, social disorder or affect
India's relationship with other countries.
However, the court watered down section 79 of the
I-T Act making it further difficult for the police to
harass innocent for their comments on social
network sites.
Objectionable Content:
Defining ―objectionable content‖ as a broad
category under the law would not be beneficial, for
two reasons.
First, in order for freedom of expression to be
criminalised, it is not sufficient that content is
merely ―objectionable‖ in the eyes of the public.
Important social changes such as those advocated
for by India‘s social reformers of the late nineteenth
and early twentieth century were possible only
because of this recognition. It is precisely where we
have strong disagreements about dearly-held habits,
practices, beliefs and values that the protection of
freedom of expression matters the most: the right to
shock, offend and disturb is integral to the right to
freedom of expression, not contradictory to it.
Article 19 (1) of the Constitution of India
recognises the right to freedom of speech and
expression. Article 19(2) provides for a number of
grounds for imposing reasonable restrictions on this
right. These are the interests of the sovereignty and
integrity of India, the security of the State, friendly
relations with foreign States, public order, decency
or morality or in relation to contempt of court,
defamation or incitement to an offence. Only
content that falls within these parameters as
authorised by law could legitimately be considered
―objectionable‖.
Rather than defining a new category of
―objectionable speech‖, what therefore would be
useful is to assess all of India‘s laws and policies as
they relate to freedom of expression against these
standards set by the Constitution. This would ensure
that the distinction between content that is socially
objectionable and that is legally objectionable
remains firmly in place, as it should be. It would at
the same time also help to ensure that the
Constitution is operationalised as intended by its
authors
In addition, however, and with this we come to our
second point, the Supreme Court of India has ruled,
in line with the three-part test provided for in
international law, that any restrictions must not be
excessive or disproportionate. Where public order is
used as a ground to restrict speech, it has stipulated
that this means that there needs to be a ―proximate
and reasonable nexus between the speech and the
public order‖. This means that the definition of
content that is ―objectionable‖ in a legal sense can
never be static: what is excessive and
disproportionate is situation-dependent.
Indeed, while it is often difficult to provide precise
definitions even for categories of expression that are
widely considered to be illegal, such as incitement
to hatred, it is possible to establish thresholds that
are robust and high and thus allow for the effective
application of reasonable restrictions while
minimising the chances of abuse or arbitrary
application of national legal standards for political
reasons or otherwise. The higher the threshold and
the more precise its wording and conceptualisation,
the more effective the application of the law.
New Challenges
In a world where, Facebook, Twitter and Instagram
have become everyday places to hangout, the
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consequent responsibility of using these platforms is
still evolving. As the internet and mobile
penetration increases in India and brings more first
time users onto these platforms, the dangers of mass
hysteria or communal reactions spreading with
serious consequences, increases manifold.
Therefore, it is imperative for the government to get
together all stakeholders of civil society and try and
address the issue of balancing media freedom with
media regulation.
In any free society, this is a sensitive subject that
will result in an uproar of opposition to any kind of
curbs or regulation, but the problem is that all
societies are not equal and therefore each society
will have to evolve its own mechanism to address
the negative consequences of a free social media.
The Indian government recently blocked the
internet and social media for a day during the Patel
agitation in Gujarat. They did the same thing in
J&K on Eid this month as a preventive measure.
While Gujarat was more or less peaceful, in J&K,
despite the ban, there was violence and clashes with
the police. The situation could have been much
worse had internet and social media been
accessible. There are enough vested interests out
there waiting to take advantage of moments like
these and it‘s the government‘s responsibility to
deal with it.
The Above graph shows the effect of Networking
site on political views.The Internet has undoubtedly
posed new challenges for balancing the right to
freedom of expression on the one hand and the right
to equality or non-discrimination on the other.
Regardless of their national origin, social, ethnic,
caste or religious background, disability, gender or
sexuality, every single person has the same dignity
and should enjoy the same rights. While overall,
freedom of expression facilitates the exercise of
other human rights, it is clear that the new
possibilities for free speech provided by the Internet
have also been used to undermine people‘s human
rights. Seeing the speed and scale with which
messages can spread on the Internet, the question of
under which conditions freedom of expression can
be legitimately restricted has consequently been
raised with renewed urgency and concern. It is
important to underscore at the outset, however, that
freedom of expression remains one of the essential
foundations of a democratic and pluralistic society.
While this right can be restricted in exceptional
cases, it has to be remembered that overall, freedom
of expression facilitates the exercise of other human
rights. Fighting against hate speech, or for equality,
and strengthening freedom of expression are, thus,
not simply compatible with each other; instead, they
exist in an affirming, mutually reinforcing
relationship as they make complementary yet
essential contributions to the securing and
safeguarding of human dignity.
Are Cyber laws in place to address all kinds of
evolving situations?
The answer is no. Social media has been gaining
popularity since the last 8-10 years but the
government‘s response has been far from
satisfactory. There are several issues that are related
and need to be addressed. At an individual level,
there is a thin line between freedom of speech and
someone using social media to tarnish another
person‘s reputation, business or livelihood. Then
there are issues of privacy of individuals and also
right to information, all of which needs to be clearly
defined and laws written to address all related
issues.
In terms of social media content, where do you
draw a line between what is freedom of speech and
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what comprises derogatory, seditious or communal
content? What may seem acceptable to one part of
the country may be completely unacceptable to
another part? Again, what is seen to be acceptable
to urban citizens may not be socially acceptable to
the rural folk. And, it takes just one upload to go
viral and trigger a violent reaction. These are very
real issues and the government is yet to respond to
these emerging threats with the urgency that it
should.
Time for government to define Cyber Security Laws
and Cyber Management policies, on priority
With the world getting increasingly connected
through the web and India on the cusp of a ‗Digital‘
revolution, the government must take up
establishing clear cyber security laws and cyber
management policies on an urgent basis. As on June
2015, there are already 213 million mobile internet
users in the country and the numbers are increasing
rapidly. Social media could work as a development
catalyst or could become a national threat. The
government must act now and fast before this
dinosaur turns into a Jurassic Park.
Conclusion
Because the right to freedom of speech and
expression is a foundational pillar of any
democracy, stifling the free flow of expression and
information by criminalising it can be legitimate
only in the most exceptional of cases. It is
recommended that Section 66A of the IT Act be
repealed, or at the very least modified
extensively, as it does not adhere to the high
standards laid down in this regard by India‟s
Constitution, India‟s Supreme Court and
international human rights standards.
What is pointed out most commonly is that section
66A‘s broad and vague wording leaves it open to
arbitrary application and hence misuse,
consequently leading to a chilling effect on free
speech. We argue that this problem is constituted by
three more concrete aspects in particular.
First, as noted above, Article 19(2) of the
Constitution of India provides for a number of
grounds for imposing reasonable restrictions on this
right. These are the interests of the sovereignty and
integrity of India, the security of the State, friendly
relations with foreign States, public order, decency
or morality or in relation to contempt of court,
defamation or incitement to an offence.
With this, the Indian Constitution broadly reflects
international human rights standards. Under these
standards, restricting speech can be considered a
necessary and proportionate measure only when
the speech in question presents a serious danger
for other people or for other human rights6.
The current framing of section 66A goes well
beyond this brief, as it also criminalises speech that
is ―grossly offensive‖ or that aims to merely cause,
for example, ―annoyance‖, ―inconvenience‖,
―obstruction‖ or ―ill will‖. As none of these
instances constitute a serious danger for others or
for human rights, their criminalisation cannot be
considered legitimate under any circumstances.
Second one Indeed, as it includes several grounds
for restriction that do not have a parallel provision
in the Indian Penal Code (e.g ―menacing‖,
―annoyance‖, ―inconvenience‖), section 66A in
effect creates new offences in each of these
cases. Such offences can come into existence,
however, only when speech is expressed online. If
annoying or inconvenient information is published
offline, it remains outside of the ambit of Indian
law, as it should be in all cases.
Where similar criminal offences do exist elsewhere
in Indian law, section 66A in some cases (e.g.
criminal intimidation) provides a higher penalty,
again indicating that freedom of expression online is
treated with a different yardstick than freedom of
expression offline in India. Moreover, where
section 66A repeats existing offences, it also does
so without incorporating “the legislative and
judicially evolved checks and balances guiding
their interpretation to specific acts as also
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guiding prosecutions, including the existence of
ingredients of the offence warranting invoking the
law as well as the safeguards and exceptions which
safeguard the liberties and fundamental rights of
persons alleged to have committed the crimes‖.
Section 66A thus undermines the protection of the
right to freedom of expression that Indians are
accorded in the Constitution and elsewhere in
Indian law in myriad fundamental ways.
Third, the above shortcomings of section 66A are
further compounded by the fact that the section is
cognizable, meaning that the police can make
arrests without requiring a warrant. Leaving to the
police the interpretation of an overly-broad law
to restrict freedom of expression, one which
brings into existence entirely new offences and
does not recall checks and balances for existing
ones, only further aggravates the potential for
inappropriate and arbitrary application of the
law. In the absence of clearly defined thresholds for
criminalisation, police have no yardstick to assess a
situation by but their own.
Because of the far-reaching consequences of
inappropriate applications of restrictions on freedom
of expression, including a possible rippling chilling
effect on free speech, it is therefore advisable that
any law that seeks to impose restrictions on the
right to freedom of speech and expression in
India be classified as a non-cognizable offence.
Finally, by noting section 66A that we are aware
that the Supreme Court is currently assessing the
constitutionality of section 66A and may, in its
ruling, provide for a reading of the section that
alleviates one or more of the concerns that we have
outlined above. However, even then we would
recommend that section 66A is either substantially
revised or repealed altogether by Parliament.
As the Internet has opened up new avenues for
freedom of expression, and will continue to do so
for ever-growing numbers of Indians over the
coming few years, it is important for all users to
know what is and what isn‘t acceptable speech
under the law, so that they can orient their online
behaviour accordingly. Only where the text and the
interpretation of the law closely overlap does the
law provide this important guidance for every day
users. Seeing the importance of the right to freedom
of expression as a foundational right that enables
and supports the enjoyment of other human rights as
well, we therefore hope that our lawmakers will
take up this important responsibility and make sure
that India‘s freedom of expression laws in the
Internet age are intelligible to all to the greatest
extent possible. In the absence of such a correction,
the inappropriate framing of the law can continue to
constitute a chilling factor on free speech even if
our Courts narrow down the scope of the law in its
actual application.
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Department of Commerce, University of Mumbai, International Conference EPIOC-2017