Module_4

MODULE 4

LEGAL FRAMEWORK APPLICABLE TO SOCIAL MEDIA
AND THE LAW

I. Introduction

Social Media or the social network has changed the way people communicate with
each other and the manner in which information is shared and distributed. It can be
defined as any web or mobile-based platform that enables an individual or agency
to communicate interactively and enables an exchange of user generated content. It
is also referred to as “Web 2.0”, a category of sites that is based on user
participation and user-generated content.

In recent years, social media has also become a tool, which is used by companies
to woo prospective consumers and maintain relationships with the current ones.
This form of communication has the potential to exponentially spread information
by interlinking various social media platforms, thereby making it difficult to
control the spreading of any information.

There have been a lot of cases of account hacking, morphed photographs etc,
accounts have been attacked by hackers who upload contents without the
knowledge of the actual users. Most of the crimes related to social networking sites
involve impersonation, defamation and anti-national activities.

It is for this reason the Government of India has joined the trend followed in
various other countries and drafted the "Framework and Guidelines for use of

Social Media”1. These guidelines would enable the various agencies to create and
implement their own strategy for the use of social media. The document would
help them to make an informed choice about the objective, platforms, resources,
etc. to meet the requirement of interaction with their varied stakeholders.

II. Types of Social Media2

A brief description of some of the most common types of social media is: -

Platform Type Description

Social Social Networking is an online service that enables its users to
Networking create virtual networks with likeminded people akin to social
networks in real life. It often offers the facilities such as chat,
instant messaging, photo sharing, updates, etc. Currently, social
networking sites are the most prominent version of social media.
Facebook with 800 million users is one of the most well known
social networking sites.

Blogs Blogs are descriptive content pages created and maintained by
individual users and may contain text, photos and links to other

1“Framework & Guidelines for Use of Social Media for Government Organizations,” available at:
<http://deity.gov.in/sites/upload_files/dit/files/SocialMediaFrameworkDraftforPublicConsultation_19201
1.pdf>
2 Ibid. at 1

web sites. The main interactive feature of Blogs is the ability of
readers to leave comments and the comment trail can be
followed.

Micro-Blogs Micro-Blogs are similar to Blogs with a typical restriction of 140
characters or less, which allows users to write and share content.
Twitter is the most well known micro-blogging site.

Vlogs and Video-Blogs or Vlogs are blogging sites that mainly use video as

Video Sharing the main form of content supported by text. YouTube is the

Sites largest video-sharing site.

Wikis A Wiki is a collaborative website that allows multiple users to
create and update pages on particular or interlinked subjects.
While single page is referred to as “wiki page” the entire related
content on that topic is called a “Wiki”. Wikipedia is the
pioneering site of this type of platform.

Although the government has prescribed the Framework and Guidelines for use of
Social Media, there are no dedicated social media laws in India. Social networking
is presently governed by the provisions of the Information Technology
(Amendment) Act.

III. Use of Social Media in IBM:-
IBM’s social media activity dates back to the 1970s when the mainframe
programmers started online discussion forums on the System 370 consoles of IBM.
While social media is used in a different way today, IBM still considers itself one
of the most prolific users of social networking and digital collaboration in the
industry. The company encourages its employees to build their own individual
professional reputations over both internal and external social networks.

• IBM uses social networking for:
i. developing products and services,
ii. to enable sellers to find and stay connected with clients,

iii. to train the next generation of leaders, and
iv. to build awareness of how it can build a smarter planet among clients,

influencers and other communities.

IBM has worked with companies around the world to foster collaboration among
employees to drive innovation, create exceptional client experience and ultimately
drive value for their organizations.
An example is CEMEX, the third-largest building materials company in the world.
With employees in 50 countries, they recognized that they had to bring its global
community closer together to meet business challenges. So it created a social

network initiative, called Shift, built on IBM Connections for open collaboration
across its entire workforce.
Within a year, over 20,000 employees were engaged, over 500 communities had
formed, nine global innovation initiatives were underway, and ideas started
flowing around the world among specialists in all areas and levels of the company.
If the same level of collaboration now enabled by Shift were conducted today
through traditional meetings by phone and travel, CEMEX would be spending an
additional half million to $1 million per year.
Social media can be used to increase sales as customers and prospective customers
are using these networks, so developing a social strategy for how to engage with
these audiences is vital. It is important to make sure that regardless of what social
channel is being used, the company understands how the customers want to
interact with the brand. It’s also important to have a process in place for identifying
sales leads and uncovering up-sell opportunities.

IV. Legal Frameworks that apply to Social Media:-
The legal frameworks which apply to social media are:-
1. Infringement of Privacy
2. Defamation on social media
3. Liabilities of an Intermediary

These frameworks are further explained as under:-

1. Infringement of Privacy:-

Section 66E of the Information Technology Act states that, whoever,
intentionally or knowingly captures, publishes or transmits the image of a
private area of any person without his or her consent, under circumstances
violating the privacy of that person, shall be punished with imprisonment
which may extend to three years or with fine not exceeding two lakh rupees,
or with both.
Section 67A adds an offence of publishing material containing sexually
explicit conduct punishable with imprisonment for a term that may extend to
5 years with fine up to ten lakh.

These provisions are essential to curb MMS attacks3 and video voyeurism.

2. Defamation on social media:-

Defamation can either be Libel or Slander. A false and defamatory statement
in writing, film, or other permanent form is libel. An oral statement which is
false and defamatory is termed as slander.

In India, if the defendant can prove that the statement made by him is true
then he will not be liable for defamation. The burden of proof in this case
would be on the defendant to show that the statement made by him is true.

Apart from the author who makes the statement, intermediaries such as the
social networking websites, internet service providers etc. on whose profiles
defamatory statements have been written by the author, can be sued in their
capacity as a publisher of defamatory statements.

3 Avnish Bajaj v State, (N.C.T.) of Delhi (2005) 3 Comp LJ 364 (Del)

Section 79 of the Information Technology Act gives immunity to the
network service providers if they can prove that the offence or contravention
was committed without their knowledge or that they had exercised all due
diligence to prevent the commission of such offence or contravention.4

Some of the recent cases in which this section has been applied are:-

i. KV Rao case5

Two men KV Rao and Mayan from Mumbai were arrested for
allegedly posting offensive comments against some Congress leaders
on their Facebook group. Both men were employed with Air India.

The two accused had shared a joke and distorted Congress party's
election flag to express their angst against the politicians. They
alleged that their personal enmity with a leader in Air India union led
to a complaint to the cyber cell over some "objectionable contents" in
the closed group of Air India cabin crew.

The passports of the accused were impounded for six months and had
been put behind bars (they were later released on bail).

ii. Shaheen Dada Case6

4By Visual Vera, “India: Defamation On Social Networking Websites,”, on 8 June 2010, available at:
<http://www.mondaq.com/india/x/100242/Social+Media/Defamation+On+Social+Networking+Websites
>
5 “Welcome to the post-Orwellian Indian nightmare: 2 men spend 12 days in jail for Facebook comments
against Cong”, published on November 23, 2012, available at:

<http://indiatoday.intoday.in/story/mumbai-men-face-arrest-offensive-comments-congress-
facebook/1/234402.html>

This is a recent case pertaining to Shaheen Dada, where two girls
(Shaheen Dhada and Rinu Shrinivasan) were arrested for Facebook
post against Bal Thackeray and the act of liking the post, respectively.

3. Liability of an intermediary:-

The meaning of the term ‘intermediary’ has been defined under section 2(w)
of the IT Act7. According to the IT Act, ‘intermediary’ with respect to any
particular electronic records, means any person who on behalf of another
person receives, stores or transmits that record or provides any service with
respect to that record and includes telecom service providers, network
service providers, internet service providers, webhosting service providers,
search engines, online payment sites, online-auction sites, online-market
places and cyber cafes. This also includes internet service providers such as
Facebook, Twitter, Google or any other social networking site, which
receives, store and transmit information about individuals on their respective
platforms. Such intermediaries merely act as a platform for people to
communicate with one another.

Section 79 of the IT Act exempts an intermediary from liability in certain
circumstances. They are as follows:

6 By Koran Tare and Aditi Pai “I will be back on FB: Shaheen,” on December 7, 2012, available at
<http://indiatoday.intoday.in/story/mumbai-girls-shaheen-dhada-rinu-shrinivasan-arrested-over-facebook-
remark-on-bal-thackeray/1/236626.html>
7 IbId. at 5

A. When the function of the intermediary is limited to providing access
to a communication system over which information made available by
third parties is transmitted or temporarily stored; or

B. If the intermediary does not-

i. initiate the transmission,

ii. select the receiver of the transmission, and

iii. select or modify the information contained in the transmission

C. the intermediary observes due diligence while discharging his duties
under this Act and also observes such other guidelines as the Central
Government may prescribe in this behalf

An Intermediary would be held liable if:-

A. He has conspired or abetted or aided or induced whether by threats or
promise or otherwise in the commission of the unlawful act

B. upon receiving actual knowledge, or on being notified by the
appropriate Government or its agency that any information, data or
communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful
act, the intermediary fails to expeditiously remove or disable access to
that material on that resource without vitiating the evidence in any
manner.

However, under the Information Technology (Intermediaries Guidelines)
Rules 2011, Rule 4(4), the intermediary is bound to remove the
objectionable content within 36 hours from its servers if the objectionable
content is brought to the notice of the intermediary. If the intermediary fails
to remove such content, then it would be held liable under the relevant laws
of India8.

Intermediaries being facilitators of third party information, data, or
communication link can also be held liable for copyright infringement,
trademark infringement/ dilution, privacy violations, obscenity, defamation,
child pornography, spamming, etc. The offended parties can not only seek
injunctions against such intermediaries to block/ remove the offending
content, but can also initiate civil and criminal proceedings against them.

In Gremach Infrastructure equipments & projects ltd. v. Google India9, the
Bombay High court held that the article (toxic fumes) on the website, which
was put up by the defendant on the blog site was defamatory. The defendant
was asked to disclose particulars, names and the address of the person who
was the author of the article.

V. Infringements in Social Media

On social networking sites, infringements are mostly on the intellectual property of
another person. These sites usually have clauses in their privacy policy which can
help the people to report any infringement of their intellectual property.

8 Avnish Bajaj v State, Google India Pvt. Ltd. Vs. M/S. Visaka Industries Limited
9 Notice of Motion No. 668 of 2008 in suit No. 506 of 2008.

An example of how infringement of someone’s intellectual property is removed
from social networking sites can be: If Mr. X puts a picture clicked by Mr. Z on his
Facebook page, and Mr. Z while surfing the net, finds the picture. The site gives
Mr. Z an option to either report the picture to Facebook or to resolve the matter
with Mr. X. If he reports it to Facebook, then the site would take the necessary
action depending on the nature of the case.10

Some cases of infringement on social media are:-

i. Copyright infringement by Zee Khana Khazana11:-

Khana Khazana is a popular show which has a page on Facebook. The page
is dedicated to food, and it was found that they were regularly stealing
photographs from food bloggers and websites for their features.

When the bloggers complained and asked Zee Khana Khaza (ZKK) to
remove the photographs that belonged to their blogs, ZKK apologized
saying this was not stealth and that they were using these images to project a
visual appeal of their recipes to their ‘fans’.

The bloggers reported the page to Facebook as an infringement of their
copyright. Facebook removed the posts containing the stolen photographs
and ZKK then apologized for using the pictures.

10 “Facebook Reporting Guide: what happens when you report something,” available at:
< https://fbcdn-dragon-a.akamaihd.net/hphotos-ak-prn1/851563_293317947467769_1320502878_n.png>
11 By Haring Prakash, “Case of copyright infringement by Zee Khana Khazana,” on March 30, 2012,
available at:
<http://www.socialsamosa.com/2012/03/case-of-copyright-infringement-by-zee-khana-khazana/>

ii. Trademark infringement by Facebook's Bang With Friends app developers12

Social game service Zynga filed a lawsuit against Facebook’s app ‘Bang
with Friends’ (BWF) for infringing its trademark of ‘with friends’ family of
games. Zynga is seeking court order barring the company from using the
name BWF in connection with any social-networking applications in the US.

In the United States, under Section 512(c) of the Digital Millennium Copyright
Act13, websites are not liable for any copyright infringement made by the users, as
long as the site has a mechanism in place whereby the copyright owner can request
the removal of the infringing content. The site must also not receive a financial
benefit directly attributable to the infringing activity.

VI. Social media policies

With the proliferation of social networking websites and their widespread use,
there has been a need to develop laws to keep pace with these changing times. It is
for this reason that most countries have now developed their own social media
policies to prevent ambiguity in the law and for smooth governance of the country.

Presently, India does not have any dedicated social networking laws, but due to an
increase in the number of cases relating to defamation, intellectual property
violation, infringement of privacy, etc on social networking sites, a social media

12 “Zynga sues Facebook's Bang With Friends app developers for infringing games' trademark,” on Aug
1, 2013, available at:
<http://www.dnaindia.com/scitech/1868489/report-zynga-sues-facebook-s-bang-with-friends-app-
developers-for-infringing-games-trademark>
13 “The Digital Millennium Copyright Act, 1998, U.S. Copyright Office Summary,” available at:
<http://www.copyright.gov/legislation/dmca.pdf>

framework and guidelines for Indian government organizations14 has been
suggested.

In the United States different states have different social media policies. Some of
those state policies are mentioned below:-

1. Alaska Legislature Social Media Guidelines15:-

These guidelines were made drafted for the use of social media at the
Alaskan State Legislature. The following guidelines are stated in the
document:-

i. Know and follow the Alaska State Legislature’s Computer Acceptable
Use Policy, Ethics Policy, and any other policies which concern
appropriate behavior within the Legislature.

ii. Respect proprietary information, content and confidentiality.

iii. Always stop and pause, thinking before posting. Reply to comments
in a timely manner, when a response is appropriate.

iv. Post meaningful, respectful comments—in other words, no spam and
no remarks that are off-topic or offensive. Do not use inappropriate
language.

v. When disagreeing with others’ opinions, keep it appropriate and
polite.

14“Framework & Guidelines for Use of Social Media for Government Organizations,” available at:
<http://deity.gov.in/sites/upload_files/dit/files/SocialMediaFrameworkDraftforPublicConsultation_19201
1.pdf>
15 “Alaska Legislature Social Media Guidelines, September 29, 2011,” available at:
<http://www.ncsl.org/documents/nalit/AKSocialMedia.pdf>

vi. Stay within your area of expertise and provide unique, individual
perspectives on your topic.

vii. Last, but not least, do not use these sites or programs for personal
benefit.

2. Hawaii State Senate Social Media Use Policy16:-
Members of the Senate and all employees and officers of the Senate drafted
these guidelines for the use of social media. “The policies contained herein
apply to the Senate’s social media accounts and to social media accounts of
individual Senators, committees and caucuses that are authorized to be listed
on any website of the Senate.”

3. India:-
“In order to encourage and enable government agencies to make use of this
dynamic medium of interaction, a Framework and Guidelines for use of
Social Media by government agencies in India has been formulated. These
guidelines will enable the various agencies to create and implement their
own strategy for the use of social media. The document will help them to
make an informed choice about the objective, platforms, resources, etc. to

16“Hawaii State Senate, Social Media Use Policy,” available at:
<http://www.capitol.hawaii.gov/session2012/docs/SenateSocialMediaUsePolicy.htm>

meet the requirement of interaction with their varied stakeholders.”17

Examples of Social Media Policies
Adidas:

First let’s take a look at how Adidas does things. As you may know, Adidas
is one of the market giants in the sports apparel manufacturing industry.
Adidas is a world-famous brand with offices and employees situated all
around the globe. How exactly do they manage their employees’ social
media ventures? Adidas takes a very encouraging but strict approach when it
comes to their Social Media Guidelines. Here are some highlights from
Adidas’ Social Media Policy:
1.Employees are allowed to associate themselves with the company when
posting but they must clearly brand their online posts as personal and purely
their own. The company should not be held liable for any repercussions the
employees’ content may generate.
2.Content pertaining to sensitive company information [particularly those
found within Adidas internal networks] should not be shared to the outside
online community. Divulging information like the company’s design plans,
internal operations and legal matters are prohibited.
3.Proper copyright and reference laws should be observed by employees
when posting online.

17Supra at 1

Best Buy:

With a customer service system that relies heavily on the use of social
media, Best Buy’s Social Media Policy is clear-cut and precise. Let’s browse
through some key points:

1.Like Adidas, Best Buy also mandates its employees to freely disclose their
affiliation with the company granted that disclaimers are set freeing the
company from any intellectual investment in the post.

2.Dishonourable content such as racial, ethnic, sexual, religious, and
physical disability slurs are not tolerated.

3.Employees are not allowed to disclose information that are financial,
operational and legal in nature, as well as any information that pertains to
clients and customers.

HP [Hewlett-Packard]:

HP is one of the biggest information technology corporations in the world.
The company has an interesting take on blogging policies by enabling its
employees to post content online via a blog embedded in their company
website. These are some important points from the HP’s Blogging Code of
Conduct:

1.HP promotes healthy and honest discourse with its readers.

2.The company reserves the right to edit or amend any misleading or
inaccurate content depicted in blog posts. The company also reserves the
right to delete blog posts violating the code of conduct.

3.HP values, respects, and upholds the intellectual property rights of its
bloggers.

GAP:

Let’s now shake it up a little and move into the fashion industry. As one of
the most recognizable fashion brands in the world, GAP also recognizes the
need to moderate the use of social media amongst their employees within the
work place. At a company conference last year, GAP handed out brochures
to its employees depicting proper guidelines and decorum that had to be
satisfied when partaking in social media. It was an interesting approach, as
the brochure’s content was very conversational, but very straight-forward as
well. Here are some excerpts:

1.“Some subjects can invite a flame war. Be careful discussing things where
emotions run high [e.g. politics and religion] and show respect for others’
opinions.”

2.“Your job comes first. Unless you are an authorized Social Media
Manager, don’t let social media affect your job performance.”

3“If you #! %#@# up? Correct it immediately and be clear about what
you’ve done to fix it. Contact the social media team if it’s a real doozy.”

4.“Don’t even think about it…. Talking about financial information, sales
trends, strategies, forecasts, legal issues, future promotional activities.
Giving out personal information about customers or employees. Posting
confidential or non-public information. Responding to an offensive or
negative post by a customer. There’s no winner in that game.”

The Los Angeles Times:

The Los Angeles Times recognizes the importance of social media in
journalism. Therefore, they encourage their journalists to freely participate
in social media ventures given that they adhere to the Times’ Social Media
Guidelines. For some key points:

Principles of integrity, professionalism, privacy and impartiality should be
observed by journalists when posting online.

The authenticity of what employee’s post is important. Online journalists
should verify questionable content with credible sources before posting or
tweeting about it.

It is important for employees to properly define their association with the
publication as they would do offline.

VII.Guidelines for employees using social media for professional purposes

Social media gives large and small businesses a direct way to interact with existing
and potential customers, and promote their products and services. Businesses using
social media channels like Facebook, Twitter and YouTube have a responsibility to
ensure content on their pages is accurate, irrespective of who put it there. As seen
above, government organizations in most countries have guidelines for employees
using social media for professional purposes. A similar approach has to be
implemented by employees for using social media for professional purposes. An
example for the same is Amazon, where they have a definite policy for dealing
with anti-counterfeiting.

Amazon sells from its own inventory, from third parties “fulfilled by Amazon” and
shipped from its warehouses, and from the Amazon Marketplace; the last category
is sold and shipped by third party sellers. Amazon identifies which is going on for
each particular sale, though the sales process is the same regardless, including
payment made through Amazon.

Amazon takes anti-counterfeiting measures in order to protect the buyer experience
and avoid claims and charge-backs. Among other things, it bans “Replicas of
trademarked items. The sale of unauthorized replicas, or pirated, counterfeit, and
knockoff merchandise is not permitted.” It employs over 100 people in “risk
investigation,” which includes identifying counterfeits. Over the last 2 1/2 years,
Amazon blocked about 5900 sellers for suspected infringing content, about 75%
from Amazon’s own work and the remainder after a Notice of Claimed
Infringement (NOCI), a Digital Millennium Copyright Act (DMCA) notice or a
customer complaint. “In the last year, Amazon has canceled over 4 million seller
listings.”

When Amazon identifies a problem or receives a NOCI, its team follows set
procedures. If the team decides that a listing is for an infringing product, Amazon
may block the listing or block the seller; the latter also means a bar on opening a
new account. “However, if an infringing seller has a good relationship with
Amazon and positive customer feedback, Amazon may just block the listing and
issue a warning.” Amazon tries to act within 24 hours of a NOCI, and generally
does so within 48 hours. “If there is no supporting evidence, Amazon will review
the seller's profile to determine whether there is a probability the NOCI is accurate
or not. If there is a probability of accuracy, Amazon will block the seller or remove
the listing and warn the seller. If there is little probability of accuracy, Amazon
will ask the sender of the NOCI for evidence to substantiate its claims.”

Amazon also screens applicants to become third-party sellers. It monitors their
monthly sales; if they reach a certain “sales velocity,” Amazon reviews the seller
to make sure it’s shipping on time and complying with Amazon’s policies. In
addition, Amazon has a database that tracks high risk items—those likely to be
counterfeit. Computer programs monitor third party offers, flag potentially
counterfeit or high risk listings, and scan feedback for keywords such as
“counterfeit,” “fake” or “open box” to flag sellers for review.