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Minors should be taught about ‘virtual touch’ to be safe on social media: Delhi High Court

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Minors should be taught about ‘virtual touch’ to be safe on social media: Delhi High Court

Case title: Kamlesh Devi vs State of Delhi NCT & ANR.
Case no.: BAIL APPLN.NO. 216 OF 2024
Dated on: 6th May 2024
Quorum: Justice Hon’ble Ms. Justice Swarana Kanta Sharma.

FACTS OF THE CASE
The present application under section 439 of the criminal procedure code 1973, has been flied on behalf of the applicant seeking regular bail in case arising out of FIR bearing No.335/2021, registered at Ranhola, police station Delhi for offence punishable under section 363 of the India Penal code, 1860. It is case of the prosecution that on 30.05.2021, the present FIR was lodged by the complainant I.e Smt. X, who had reported that her daughter i.e., ‘S’ aged approximately 16 years was missing. Thereafter, the present FIR was lodged under section 363 of IPC. On 23.07.2021, the mother of the prosecutrix accompanied by the prosecutrix herself, had visited the police station stating that the minor victim had been recovered from Bhind, Madhya Pradesh. The minor victim was allegedly kidnapped by a person she met on social media and subsequently kept confined in a room, where she was sexually assaulted for around 20-25 days. Later, she was coerced into marriage with a 45-year-old man against her will, in exchange for money.
The statement of the prosecutrix recorded under Section 164 of the Cr.P.C revealed shocking details of the ordeal she had endured. She stated that she had come in contact with the co-accused, Rajiv, through social media in 2021. On 29th July 2021, she went to meet Rajiv at Madhuban Chowk Delhi, where she was allegedly given an intoxicating drink and kidnapped. She was taken to Bhind, Madhya Pradesh, where she was confined in a locked room and sexually assaulted by Rajiv. The prosecutrix further alleged that all the family members of Rajiv, including Kamlesh Devi, the present applicant/accused, were involved in the commission of the offense. She specifically accused Kamlesh Devi of catching her when she attempted to escape and physically assaulted her. Thereafter, the chargesheet in the said case was filed for offence punishable under section 363, 365, 372, 376, (2)(n). 344,346,34 of the IPC and section 6, 17 of the protection of children from sexual offences Act, 2012 (POCSO Act).

CONTENTIONS OF THE APPELLANT
The appellant learned counsel argues that the present applicant has been falsely implicated in the present case and that the FIR does not disclose the role of the present applicant in any manner and further statement of the prosecutrix recorded under section 164 Cr.P.C does not assign any specific role to the applicant. He further submitted that there are material inconsistencies in the statement of the prosecutrix recorded under section 161 and 164 of the Cr.P.C. meaning thereby, that prosecutrix is falsely implicating the present applicant.
It is further argued that the prosecutrix was recovered from the house of present applicant of other co-accused I.e Rammohan and not from the house of the present applicant. It is further submitted that the present applicant is in Judicial Custody for approximately 19 months and that the present applicant is a housewife and is dependent on her family for her livelihood. It is further submitted that the present applicant is a resident of Madhya Pradesh whereas the prosecutrix is resident of Delhi and therefore there is no change of her influencing the witness or tampering with the evidence. It is submitted that the trail in the present case will take long time to conclude thus, the present applicant be enlarged on Bail.

CONTENTIONS OF THE RESPONDENTS
The learned respondent APP submitted by state opposes the present bail application and argues that as per allegations and supporting material on record, there are serious allegations against the accused for abetment of kidnapping and rape. It is further submitted that 4 witnesses have been examined out of 18 witnesses and that the prosecutrix has also been examined who has supported the case of prosecution. It is further argued that if the applicant is enlarged bail there is strong possibility that the applicant may threaten or influence the remaining witnesses. It is argued therefore, that the present bail application be dismissed.

LEGAL PROVISIONS
Section 439 of code of criminal procedure: The High court or court of session may direct the release on bail of any person who is in custody and has been charged with an offence.
Section 363 of Indian Penal Code 1860: Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for term which may extend to seven years and shall also be liable to fine.
Section 365 of Indian Penal Code 1860: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined shall be punished with imprisonment of either description for term which may extend to seven years and shall also be liable to fine.
Section 376 of Indian Penal Code 1860: whoever, except in the cases provided for in sub- section (2), commits rape, shall be punished with rigorous imprisonment of either description for term which shall not be less than ten years, but which extended to imprisonment for life and shall also be liable to fine.
Section 6 of Protection of children from sexual offence (POCSO Act): whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life and shall also liable to fine.
Section 17 of Protection of children from sexual offence (POCSO Act): Punishment for abetment.

COURT’S ANALYSIS AND JUDGEMENT
The Delhi High Court directed stakeholders such as schools, colleges, Delhi State Legal Services Authority, and Delhi Judicial Academy to incorporate education about ‘virtual touch’ into their curriculum alongside traditional concepts of ‘Good’ and ‘Bad Touch’, emphasizing its potential dangers.
A bail plea was filed by the petitioner who was accused of involvement in the kidnapping and exploitation of a 16-year-old girl. The court said that the stressed the necessity of educating children about ‘virtual touch’ to address the risks prevalent in the digital sphere. The Court said, “Just as children are taught to exercise caution in the physical world, efforts must be made taken to teach them to develop critical thinking skills to assess the credibility of online contacts and safeguard their personal information.” Explaining the concept, the Court emphasized that educating minors about ‘virtual touch’ entails instilling knowledge about appropriate online conduct, identifying signs of potential predatory behavior, and understanding the significance of privacy settings and online boundaries. The Court said, “Moreover, parents, guardians, and educators play a crucial role in fostering digital literacy and promoting responsible online conduct among minors. By fostering open communication channels and providing guidance on navigating the digital landscape, adults can empower children to make informed decisions and protect themselves from online threats. The Court added, “The need of the hour in this case is also to send a message through this order/judgment to the concerned stakeholders such as schools and colleges, Delhi State Legal Services Authority as well as Delhi Judicial Academy to hold programs, workshops, and conferences focusing not only on the traditional concepts of ‘Good’ and ‘Bad Touch’ but also on the emerging concept of ‘Virtual Touch’ and its potential dangers. This Court, therefore, emphasizes that the concerned stakeholders should include in their curriculum apart from the education about good touch and bad touch the virtual touch and its repercussions and danger. Accordingly, the present application stands dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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hammer jugde

Person Forwarding Social Media Message Liable For Its Contents: Madras High Court.

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TITLE: S. Ve. Shekher Vs. Al. Gopalsamy and Ors.

Decided On: July 14, 2023

Crl.O.P.(MD) Nos.11494 & 12163 of 2018, Crl.O.P.Nos.5099 of 2019 & 6211 of 2021 &all connected pending Crl.M.Ps.

CORAM:  Hon’ble Mr. Justice N. Anand Venkatesh.

Introduction: 

The Madras High Court has recently refused to quash batch of criminal proceedings initiated against actor and BJP politician S.Ve Sheker for his derogatory remarks against women journalists. The cases were registered after Sheker had forwarded an abusive, derogatory and vulgar comment on his Facebook account in April 2018. Though Shekher claimed that he had merely forwarded the message received from one Mr Thirumalai Sa without reading its contents, and had later removed the derogatory post on the same day and offered apologies, the court noted that these acts would not help Shekher from facing consequences for forwarding a derogatory message. Justice Anand Venkatesh noted that Shekher was a person of high stature with many followers and he ought to have exercised more caution while forwarding messages.

Facts:

The petitioner in all these petitions is a past Member of the Legislative Assembly representing Mylapore Constituency during the years 2006-2011. The petitioner is said to have published/circulated an abusive, derogatory and vulgar comment in his facebook account on 19.4.2018. Pursuant to that, a complaint came to be given before the Commissioner of Police, Chennai to take action against the petitioner for having posted such a derogatory comment in his facebook account. Accordingly, a first information report was registered in Cr.No.148 of 2018 for offences under Sections 504, 505(1)(c) and 509 of the Indian Penal Code (hereinafter called the IPC) and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 on the file of theInspector of Police, Cyber Crime Cell, Central Crime Branch, Chennai, who is none other than  first respondent in Crl.O.P.No.6211 of 2021. The first information report was investigated by the concerned Inspector of Police and on completion of the investigation, a final report came to be filed before the Assistant Sessions Court, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 (for short, the Special Court) in C.C.No.62 of 2019 and it has been put to challenge by the petitioner in Crl.O.P.No.6211 of  2021. For the same cause of action, private complaints were filedagainst the petitioner in various parts of Tamil Nadu. The complaint filed before the Judicial Magistrate No.2, Karur, which was taken on file in C.C.No.223 of 2018, has been put to challenge in Crl.O.P.(MD) No.12163 of 2018. The complaint filed before the Judicial Magistrate No.1, Tirunelveli, which was taken on file in C.C.No.154 of 2018, has been challenged in Crl.O.P.(MD) No.11494 of 2018. Similarly, The complaint filed before the Judicial Magistrate, Ambattur, which was taken on file in S.T.C.No.276 of 2018, has been put to challenge in Crl.O.P.No.5099 of 2019

Legal Analysis and Decision:

The court noted that in the present case, the message forwarded by Shekher caused an insult to journalists, and more particularly to women journalists which also resulted in a demonstration in front of his house and violence. Thus, the court noted that all the ingredient necessary to satisfy the offence of S.504 IPC (intentional insult with intent to provoke breach of peace) existed and the offence was made out. The court added that the message forwarded by Shekher induced commission of an offence against public tranquility since there was a hue and cry across the State immediately after the incident. Thus the court noted that the offence under S.505(1)(c) IPC was also made out. Since the message posted by Shekher virtually outrages the modesty of woman and since it also contained indecent and vitriolic attack on a particular woman and other women Press reporters, the offences under S. 509 IPC and S.4 of the Tamil Nadu Prohibition of Harassment of Women Act 2002 were also attracted. The court added that a person forwarding a message must be construed to acknowledge the contents of the message. The court said that when a person got a dopamine high by looking at the likes for the forwarded message, he should be equally prepared to face the consequence, if that message had derogatory content. The court also noted that since a large body was affected due to the act of the petitioner, he could not be let away just because he tendered an apology. The court added that of such a route was allowed, any person could make such statements and subsequently apologise and get away.

“However, in the instant case, it is not a dispute between two individuals and the act of the petitioner has virtually painted the entire Press and more particularly the women Reporters with vulgar comments and when such a large body is affected due to the act of the petitioner, he cannot be let away just because he tendered an apology. if such an easy route is adopted, anyone can make such statements, cause damage, subsequently apologize for his act and get away from the action taken against him,” the court noted.

Conclusion:

The court observed that Shekher’s apology could not be acted upon and the criminal proceedings against him could not be quashed on that ground alone. So, the court refused to quash the proceedings against Shekher and dismissed the petition. However, noting that Shekher could not be made to move from one court to another to face proceedings vasted on the very same cause of action, the court transferred all the criminal proceedings to the Special Court, Singaravelar Maligai.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Social Media and Freedom of Speech: The Legal Boundaries in India

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Introduction:

Social media platforms have become integral to modern communication, enabling people to express their opinions and engage in public discourse. However, the intersection of social media and freedom of speech raises important legal considerations. This article explores the legal boundaries of free speech on social media platforms, the challenges of content moderation, and the delicate balance between freedom of expression and harmful speech in India.

Freedom of Speech in India:

 India, as a democratic country, values freedom of speech as a fundamental right enshrined in the Constitution. Article 19(1)(a) guarantees the right to freedom of speech and expression, subject to reasonable restrictions for the protection of public order, decency, and morality.

Legal Boundaries on Social Media:

While individuals enjoy the right to express their opinions on social media, certain restrictions exist within the legal framework. The Information Technology Act, 2000, and its subsequent amendments regulate online activities, including social media platforms.

The legal boundaries on social media platforms involve a combination of legislation, regulations, and court interpretations. Here are some key aspects that define the legal boundaries on social media:

  1. Information Technology Act, 2000, and its Amendments:

 The Information Technology Act (IT Act) in India governs various aspects of online activities, including those related to social media. Some key provisions within the IT Act that set the legal boundaries include:

  1. Section 69A: Under this section, the government has the power to block online content that threatens national security, public order, or incites violence. It empowers the government to issue directions to block access to specific content or websites.
  2. Section 79: This section deals with the liability of intermediaries, including social media platforms. It requires intermediaries to observe due diligence and promptly remove or disable access to illegal content upon receiving notice from appropriate authorities.
  3. Section 505(2): Sharing or spreading content that promotes hatred, enmity, or ill-will among religious or social groups is punishable under this section.
  4. Intermediary Guidelines and Digital Media Ethics Code (2021):

 The Intermediary Guidelines and Digital Media Ethics Code were introduced by the government of India in 2021 to regulate social media intermediaries and digital media platforms. These guidelines impose certain obligations on intermediaries, including social media platforms, such as:

  1. Appointment of a Chief Compliance Officer, Grievance Redressal Officer, and Nodal Contact Person.
  2. Implementation of a robust content moderation mechanism, including the removal of specific categories of prohibited content within 36 hours of receiving a court order or notification from appropriate authorities.
  3. Establishment of a grievance redressal mechanism to address user complaints within a specified timeframe.

Court Interpretations and Precedents:

Indian courts have played a significant role in defining the legal boundaries on social media through their interpretations and judgments. Some key principles established by courts include:

  1. Balancing Fundamental Rights: Courts strive to strike a balance between freedom of speech and other fundamental rights such as the right to privacy, reputation, and public order. They often weigh the context, intent, and potential harm caused by online speech while evaluating its legality.
  2. Clarity and Proportionality: Courts emphasize the need for clear and specific legal provisions to restrict online speech. They also stress that restrictions must be proportionate to the harm sought to be prevented and should not be overly broad or vague.
  3. Due Diligence and Content Moderation: Courts have recognized the responsibility of social media platforms to implement effective content moderation mechanisms. Platforms are expected to have clear policies, guidelines, and mechanisms to remove or disable access to illegal or harmful content.

It’s important to note that the legal boundaries on social media platforms are subject to ongoing debates, legislative changes, and judicial interventions. As technology evolves and new challenges emerge, the legal landscape continues to develop and adapt to address the complexities of social media and freedom of speech.

Challenges of Content Moderation:

Content moderation on social media platforms poses several challenges due to the scale, diversity, and constantly evolving nature of user-generated content.

Here are some key challenges faced in content moderation:

  1. Volume and Speed: Social media platforms receive an enormous volume of user-generated content every second. Moderating this massive amount of content within a short time frame is a significant challenge. The speed at which content is shared and spread on social media requires platforms to employ efficient systems and technologies to identify and moderate harmful or objectionable content promptly.
  2. Contextual Nuances: Content moderation becomes challenging due to the need to understand and interpret the contextual nuances of user-generated content. Differentiating between legitimate expression and harmful speech requires considering the specific context, intent, cultural factors, and local sensitivities. The lack of contextual understanding can lead to the misinterpretation or wrongful removal of content.
  3. Varying Legal and Cultural Standards: Social media platforms operate globally, but legal standards and cultural norms differ across jurisdictions. Compliance with diverse legal frameworks and striking the right balance between different cultural sensibilities poses a challenge. Platforms must navigate these variations to ensure consistent and fair content moderation practices.
  4. Automation and Human Review: To cope with the volume of content, platforms often rely on automated systems for content moderation. However, relying solely on automation can lead to errors, false positives, and removal of legitimate content. Striking the right balance between automated systems and human review is crucial to ensure accurate and context-sensitive content moderation.

Recent Legal Developments:

In recent years, India has taken steps to regulate social media platforms and address concerns related to harmful speech. Notable developments include:

  1. Intermediary Guidelines and Digital Media Ethics Code (2021): These guidelines introduce obligations for social media intermediaries, including appointing a Chief Compliance Officer and implementing a grievance redressal mechanism.
  2. Court Decisions: Indian courts have intervened in cases involving freedom of speech on social media platforms, aiming to strike a balance between free expression and protecting individuals from harm.

Balancing Freedom of Expression and Harmful Speech:

Balancing freedom of expression and the need to combat harmful speech is crucial. Striking the right balance involves creating transparent content moderation policies, considering contextual factors while assessing content, and promoting public awareness about responsible digital citizenship.

Here are some key considerations in balancing freedom of expression and harmful speech:

  1. Legal Framework and Restrictions: Freedom of expression is not an absolute right and is subject to reasonable restrictions. Legal frameworks, including national constitutions, human rights conventions, and local laws, define the boundaries within which freedom of expression operates. These restrictions are typically aimed at protecting public order, national security, the rights and reputations of others, and preventing harm. Identifying and enforcing these restrictions effectively is essential to maintain the delicate balance between free expression and preventing harm.
  2. Clear Definitions and Standards: One of the challenges in balancing freedom of expression and harmful speech lies in defining and interpreting what constitutes harmful content. Vague or ambiguous definitions can lead to inconsistencies and subjective decision-making in content moderation. It is crucial to establish clear standards and guidelines that provide clarity on the types of speech that are considered harmful and warrant intervention.
  3. Contextual Evaluation: Context plays a vital role in determining the potential harm caused by speech. The intention behind the speech, its social and cultural context, and the potential impact on individuals or marginalized groups must be carefully considered. Contextual evaluation helps distinguish between legitimate expressions of opinion and speech that incites violence, promotes hate, or targets individuals or communities. Platforms need to develop sophisticated moderation mechanisms that account for contextual factors while assessing and handling content.
  4. Proportionality and Consistency: Ensuring proportionate responses to harmful speech is crucial. The severity of the harm caused, the intent of the speaker, and the potential impact on society should be taken into account when determining appropriate measures. Responses to harmful speech should be consistent and applied uniformly to avoid allegations of bias or unfair treatment.

Finding the right balance between freedom of expression and harmful speech on social media platforms is an ongoing challenge. It requires continuous evaluation, refinement of policies and practices, and an understanding that the digital landscape is constantly evolving. By incorporating legal frameworks, clear definitions and contextual evaluation, a more inclusive and responsible digital environment can be fostered.

Case Laws

Some of the case laws that provide important legal precedents and interpretations in the context of social media and freedom of speech in India include:

  1. Indian National Congress (I) v. Union of India (2014): In this case, the Supreme Court upheld the validity of Section 66A but clarified its interpretation. The court held that online speech could only be restricted if it posed an actual threat to public order or had the potential to incite violence. It emphasized the importance of striking a balance between free speech and maintaining public order.
  2. Kamlesh Vaswani v. Union of India (2015): This case dealt with the issue of blocking websites hosting objectionable content, particularly child pornography. The Supreme Court held that intermediaries like social media platforms have a responsibility to proactively identify and block access to such content to protect children from exploitation.
  3. Faheema Shirin R.K. v. State of Kerala (2019): The Kerala High Court ruled in this case that the freedom of choice and expression of an individual cannot be curtailed merely based on objections raised by others on social media. It emphasized the importance of allowing individuals to express their opinions freely without fear of retaliation or censorship.
  4. Maheshwari v. Union of India (2020): This case involved a plea seeking quashing of an FIR filed against a social media user for allegedly posting objectionable content. The Supreme Court emphasized that social media users cannot be held liable for the mere forwarding or sharing of content unless there is a clear intent to promote hate speech or incite violence.

Conclusion:

Social media platforms have transformed the way people communicate, making freedom of speech a critical issue in the digital age. While India recognizes freedom of speech as a fundamental right, it also imposes reasonable restrictions to protect public order and harmony. The legal boundaries of free speech on social media platforms must be navigated carefully, ensuring a balance between the right to express opinions and the prevention of harmful speech. Ongoing discussions, regulatory developments, and judicial interventions contribute to shaping the legal landscape and finding this delicate balance in India.

References

Case Laws

  1. Shreya Singhal v. Union of India, (2015) 5 SCC 1
  1. Indian National Congress (I) v. Union of India, (2014) 16 SCC 1
  2. Kamlesh Vaswani v. Union of India, (2015) 2 SCC 701
  3. Faheema Shirin R.K. v. State of Kerala, (2019) SCC Online Ker 529
  4. Maheshwari v. Union of India, (2020) SCC Online SC 1223

Websites

Statutes

  • Information Technology Act, 2000

ARTICLE WRITTEN BY AMIT ARAVIND

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”