Module 4: SOCIAL MEDIA AND THE LAW
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.
In recent times, 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
II. Types of Social Media2
A brief description of some of the most common types of social media is: -
Platform Type Description
1“Framework & Guidelines for Use of Social Media for Government Organizations,” available at:
2 Ibid. at 1
Social Social Networking is an online service that enables its users to create
Networking 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 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 Video-Blogs or Vlogs are blogging sites that mainly use video as the main
Sharing Sites form of content supported by text. YouTube is the largest video-sharing
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
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.
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
In India, a person can be punished under the ambit of Section 66A5 of the
Information Technology Act, for defamation. Any person, who sends, by means of a
computer resource or a communication device any information that is offensive or has
3 Avnish Bajaj v State, (N.C.T.) of Delhi (2005) 3 Comp LJ 364 (Del)
4By Visual Vera, “India: Defamation On Social Networking Websites,”, on 8 June 2010, available at:
5 “IT Amendment Act 2008”
menacing character, is false, but made with the purpose of causing annoyance or
inconvenience to the addressee or recipient of the mail can be punished with
imprisonment for a term which may extend to three years and with fine.
Some of the recent cases in which this section has been applied are:-
i. KV Rao case6
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
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 Case7
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 its liking respectively.
3. Liability of an intermediary of social media :-
6 “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:
7 By Koran Tare and Aditi Pai “I will be back on FB: Shaheen,” on December 7, 2012, available at
The meaning of the term ‘intermediary’ has been defined under section 2(w) of
the IT Act8. 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:
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.
8 IbId. at 5
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 India9.
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 India10, 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
people to report any infringement of their intellectual property.
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.11
Some cases of infringement on social media are:-
9 Avnish Bajaj v State, Google India Pvt. Ltd. Vs. M/S. Visaka Industries Limited
10 Notice of Motion No. 668 of 2008 in suit No. 506 of 2008.
11 “Facebook Reporting Guide: what happens when you report something,” available at:
i. Copyright infringement by Zee Khana Khazana12:-
Khan 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
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.
ii. Trademark infringement by Facebook's Bang With Friends app developers13
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 Act14,
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
VI. Social media policies
12 By Haring Prakash, “Case of copyright infringement by Zee Khana Khazana,” on March 30, 2012,
13 “Zynga sues Facebook's Bang With Friends app developers for infringing games' trademark,” on Aug
1, 2013, available at:
14 “The Digital Millennium Copyright Act, 1998, U.S. Copyright Office Summary,” available at:
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 framework and guidelines for Indian
government organizations15 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 Guidelines16:-
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
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.
vi. Stay within your area of expertise and provide unique, individual perspectives on
vii. Last, but not least, do not use these sites or programs for personal benefit.
2. Hawaii State Senate Social Media Use Policy17:-
15“Framework & Guidelines for Use of Social Media for Government Organizations,” available at:
16 “Alaska Legislature Social Media Guidelines, September 29, 2011,” available at:
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
“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 meet the requirement of interaction with their varied
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
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
17“Hawaii State Senate, Social Media Use Policy,” available at:
18Supra at 1
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.