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Is Hyderabad’s top cop’s statement on ‘wrong’ social media posts unconstitutional? Here’s what legal experts have to say

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The remarks were made amid several cases being registered over alleged social media offences in Telangana despite legal experts and a Bombay High Court order indicating otherwise. 

Hyderabad City Police Commissioner Anjani Kumar recently said that the onus lies on a person to determine if a piece of information is right or wrong before uploading it on social media and added that if the uploaded content is found to be wrong, then action will be taken against them. This statement comes ahead of the Bakrid festival which in the past has seen several issues, often transpiring in social media, over animal sacrifice which is an important ritual of the festival.

“Social media is a thing that gets misused a lot. We had booked cases against such people earlier, and we would also like to share that last month two people have been jailed for six months because of this. If you are uploading something on social media, then the responsibility is on you to determine if it’s right or wrong; if you have uploaded wrong content, then cases will be booked against you,” Kumar said while talking to the media during a Bakrid preparatory event in Hyderabad.

Why this matters? In a larger context, this statement can be seen in line with the recent judgement in the Saket Gokhale vs Lakshmi Puri case, wherein the Delhi High Court repeatedly asked Gokhale if he had verified the contents of his “defamatory” tweets against Puri with government officials before publishing them on Twitter, or sought clarifications from Puri herself. With Gokhale’s counsel responding in the negative, the Delhi High Court ruled in favour of Puri and asked Gokhale to delete the tweets.

The statement also comes at a time when there has been increased scrutiny over sensitive or political content being shared on social media platforms. Recently, several people including politicians and media organisations were booked by the UP police for sharing an ‘unverified’ video of an elderly Muslim man who was subjected to assault in Ghaziabad’s Loni district.

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“Earlier we have seen people trying to brand videos from Bangladesh, Bhutan, Myanmar as videos from Hyderabad. This is very wrong. We will not tolerate and will take up legal proceedings against such persons. There are people who talk a lot. If their statements cause harm to a religion and hurt the sentiments of its followers, then we will take up legal proceedings,” Kumar added.

‘Commissioner’s statement lacks legal or constitutional foundation’

Responding to the statements made by Kumar, legal experts pointed out that there is no law in India that deems posting ‘wrong’ information on social media as punishable. “The comments of the Commissioner are quite concerning. There is no law in India that makes it an offence to upload wrong information on social media by itself, and to that extent, the statement lacks any legal or constitutional basis. It cannot be reasonably expected that people upload strictly accurate information online, considering the deluge of information and misinformation floating around,” Pratyush Miglani, Managing Partner, Miglani Varma & Co – Advocates told MediaNama.

It appears from the statement of the Commisioner that action could be taken against people under the IPC and other laws if such “wrong” information hurts religious sentiments of another. That too is equally concerning since there is no benchmark or straitjacket formula to decide what is hurtful to a community’s sentiments and what’s not. Overall, the police are left with a lot of discretionary power, which is a cause of concern — Pratyush Miglani, Managing Partner, Miglani Varma & Co

Miglani added that the IT Rules 2021 do not shed light on the consequences of posting such content by people, or what would ensue after such content has been taken down either by the intermediary or by the users themselves.

Speaking to MediaNama, Rishi Anand, Partner at DSK Legal said, “Setting the boundaries of free speech and prescribing what content is unlawful is in the realm of the legislature. Of course, enforcement agencies are duty-bound to prosecute the publisher of unlawful content, but ultimately, the unlawfulness will be adjudicated by the courts as per the established principles of law only basis the evidence gathered by the police while carrying out an investigation.” Thus, while comments of the Hyderabad Police Commissioner may act as a deterrent for wrongdoers, the legitimacy of such clampdowns will be addressed by the courts, Anand added.

Several complaints on social media ‘offences’ in just one month

According to a Telangana Today report, in the last month, the Cyber Crime Division of the Hyderabad City Police received six complaints against several Facebook pages wherein people were allegedly posting defamatory content against political figures. For instance, All India Majlis-e-Ittehadul Muslimeen (AIMIM) member Mohammed Irfan registered a complaint against some persons who were managing at least six Facebook pages and were allegedly making derogatory comments against AIMIM party leaders.

Another complaint was made by Mohammed Tauseef against a person who morphed a picture of AIMIM’s senior politician Mumtaz Ahmed Khan and circulated a picture on social media. A month ago, three persons were arrested by sleuths of Rachakonda police for allegedly posting obscene content through fake social media accounts to harass women.

Earlier, Telangana DGP M Mahender Reddy had said that the government was keeping a close eye on social media for “rabble-rousers” who are circulating or posting fake news or “inappropriate content”.

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Continuation of Covid-19 social media scrutiny policy?

These statements by law enforcement authorities come after a time when India’s Union government and several State governments, in a bid to tackle apparent misinformation and fake news regarding the pandemic, have been up in arms against content on social media. While misinformation has to be tackled and nipped at the bud, several curbs issued by local and the Indian administrations had raised questions regarding the curbing of free speech.

For instance in April 2021, while complying with requests made by the Indian government, Twitter censored 52 tweets that mostly criticised the country’s handling of the second surge of Covid-19. In the same month, local bodies such as the Jabalpur district administration in Madhya Pradesh imposed curbs on pandemic-related posts. The Indore district administration too placed restrictions on comments and forwards related to coronavirus on social media.

This current crackdown on such posts, long after the peak of the second wave has passed, begs the question of whether authorities in India are continuing its Covid-19 policy on social media and making this the new normal.

WhatsApp group admins cannot be held liable for members messages without common intention: Bombay HC

At a time when Facebook page admins and users who share disputed content on Twitter are being charged by authorities, it is also necessary to look at what India’s courts have said about WhatsApp, its groups, and messages. It is also noteworthy as the encrypted messaging platform has been under the spotlight for the spread of unverified information via unverified forwards.

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A few months back, the Bombay High Court held that a WhatsApp group administrator cannot be held liable for objectionable content posted by a group member, in the absence of common intention. This was in reference to a case registered against Kishor Tarone, a WhatsApp group admin, for allegedly making sexually coloured remarks, insulting a woman’s modesty, and so on.

In our opinion, in the facts of present case, non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by administrator — The court noted

A woman had complained that Tarone had not acted against a group member who had posted objectionable remarks against a female member. The woman had argued that Tarone had not removed or deleted the accused member from the group, and did not ask the accused to submit an apology to her.

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