By Dilip Bobb
The recent arrests of two female students over their social media output has redrawn the boundaries of technology and the law. Now, students from India applying for a visa for college admission in an American university will also face a scrutiny of their social media accounts. Social media has transformed from a benign community space to one that comes with hidden dangers.
FROM DIGITAL PLAYGROUND TO LEGAL MINEFIELD
The world of social media started off as a happy digital space where you connected with friends, colleagues, family and like-minded individuals. Then somewhere down the line, the rules of the game changed. Ideology and political views became the target of trolls and digital soldiers on one side or another and a new phrase was born: “hate speech”.
Suddenly, what you posted on social media became a loaded weapon which could destroy someone’s life and career as was the case last week of a 19-year-old Pune engineering student who was not only rusticated from her college, but also faced an FIR lodged against her by the local police. Her online post which she quickly deleted, but was arrested nonetheless, caused the Bombay High Court to order her immediate release, calling the arrest “absolutely shocking,” adding: “She is not a hardcore criminal.”
The vacation bench of Justices Gauri Godse and Somasekhar Sundaresan declared, “at the most, her act of sharing the post can be termed an indiscretion by a young student.” The Court noted that she had deleted her post within two hours and tendered an apology, but still a FIR was lodged against her. “Who arrests a student like this? What does the state want? Does the state want students to stop expressing themselves and be converted into criminals? Is that the intention?” the Court asked. “It appears that the police officers and the college are bent upon ruining her life.”
OPERATION SINDOOR AND THE WEAPONISATION OF POSTS
She is not the only one. Since Operation Sindoor, there have been several arrests across the country, and a majority of them are to do with online posts by students and members of the minority community, including professor Ali Khan Mahmudabad, for their social media posts which were deemed anti-national, seditious or “pro-Pakistan”, mostly using the all-encompassing Section 152 of the Bharatiya Nyaya Sanhita (endangering sovereignty, unity and integrity) even when it is actually doing the opposite. In Assam, over 50 such arrests were made, mostly Muslims.
The most notorious was that of another student, Sharmishta Panoli, 22, who was similarly charged and arrested by the Kolkata police from her Gurgaon home. She is, incidentally, a law student and West Bengal is ruled by an Opposition leader, unlike Assam. Panoli, who is also what is referred to as a “social media influencer” was arrested based on a complaint filed by a Muslim man who accused her of promoting communal hatred through a now-deleted video in which she criticised Bollywood celebrities for their silence on Operation Sindoor. In the most ironic of twists, the man, Wajahat Khan, was also the target of a formal complaint lodged with the Kolkata Police by the Shree Ram Swabhiman Parishad. The complaint accused Khan of making derogatory and inflammatory remarks against the Hindu community on various social media platforms.
Panoli’s arrest has triggered a legal and political controversy. The Bar Council of Delhi condemned her arrest as being “excessive and politically motivated” while others, including BJP politicians and Andhra Pradesh deputy chief minister who also opposed the arrest, said, “secularism must be a two-way street.”
THE AMERICAN CLAMPDOWN: FROM GAZA TO GOOGLE HISTORY
Social media has transformed from its original intent, when it was a platform to allow individuals, friends, colleagues and communities to connect instantly to one that many digital experts and researchers say has worsened polarization in societies and also undermined democracy. Now, it is being used in its most virulent and dangerous form in the so-called champion of democracy, America, where the Donald Trump administration has asked law enforcement agencies to monitor social media accounts of visa applicants and those already studying in American universities.
Many students and visa applicants are scrambling to delete their social media accounts, so much a part of everyday life for anyone with a phone or computer. If you have posted anything critical of Israel and its near-obliteration of Gaza or even against Trump himself, your visa will be rejected and if already a student in an Ivy League American university, you could be deported, as many have already.
As Siva Vaidhyanathan wrote in his book Antisocial Media: How Facebook Disconnects Us and Undermines Democracy, “social media platforms amplify our worst impulses… and to base immigration decisions on such flawed and manipulated data is not just misguided, it’s dangerous.” In a recent article in an Indian newspaper, he quotes some instances we are all familiar with: “A joke shared between friends becomes evidence of character; a moment of political frustration becomes proof of radicalization; a cultural reference or religious expression becomes grounds for suspicion.”
INDIA’S SLIPPERY SLOPE: FREE SPEECH OR FAST-TRACK FIRS?
In India, we seem to be heading the same way judging by the flood of arrests post Operation Sindoor. There’s nothing like a war, whether it is India-Pakistan, Ukraine-Russia or Israel versus the people of Palestine, that evokes instant reaction, often in haste and even more often, in “forwards” sent by others in a group or a digital community. In paperless communications, these become a personal and permanent record to be accessed anytime. Social media law is a complex and evolving field that deals with the legal issues arising from online interactions and content. It encompasses various aspects, including defamation, privacy, intellectual property, and content moderation.
Social media law in India is primarily governed by the Information Technology Act, 2000, and the IT Rules, 2021. The key areas under which these laws are used are to do with defamation, privacy (data security), intellectual property, content moderation (under which social media companies can be held liable for the content on their platforms) and, most importantly, freedom of speech. There is also the increasing danger of social media and the rapid spread of disinformation, or the so-called “media trials” that have become par for the course in the digital news space, and can undermine the fairness of legal proceedings.
WHAT RESEARCH SAYS ABOUT SOCIAL MEDIA AND RADICALISATION
A recent article on social media in The Conversation, a network of non-profit media outlets publishing news stories and research reports online, authored by academics with professional journalist editors, says it “found considerable evidence for effects such as fostering polarisation and populism, and reducing trust in institutions. The effects on trust in institutions and media were particularly pronounced. Studies in Austria, Sweden and Australia have found evidence for an association between increased social media use and online right-wing radicalisation. Studies in Germany and Russia have provided causal evidence that digital media can increase the incidence of ethnic hate crimes.” It ended the article with this question: Is social media incompatible with democracy? It concluded that there are no simple yes or no answers, but evidence warrants concern about the adverse impacts of social media on democracy.
JUDICIARY AND THE BALANCING ACT OF FREE SPEECH
Indian courts dealing with social media complaints, have, more often than not, ruled on the side of freedom of speech. The Supreme Court, in the case of Shreya Singhal vs Union of India, ruled that Section 66A of the Information Technology Act restricted freedom of speech and expression and declared it unconstitutional. In the landmark case of Kharak Singh vs State of Uttar Pradesh, the apex court held that the right to privacy is a constitutionally protected right, even if not explicitly mentioned. It also set the stage for future legal challenges regarding government surveillance and the balance between state interests and individual rights. It has also backed the government when it comes to hate speech and communal posts. In the case of Tehseen Poonawalla, the Supreme Court allowed the government full freedom to stop circulation of “explosive and irresponsible” messages on social media sites which have the propensity to incite mob violence.
CAUGHT IN THE CROSSFIRE: YOUNG LIVES, LONG SHADOWS
For the 500 million users in India, social media represents a double-edge sword. On the one hand, social media platforms tend to use algorithms which highlight posts that make users appear more extreme and radical than they actually are. There is also the fact that without social media, most people feel like they are losing something essential to their lives, of FOMO (Fear of Missing Out). Now, with Trump’s ruling, any Indian who has applied for a visa or aspires to join an American college, may either have to delete their accounts or remove themselves from social media altogether. At that age and stage of their lives, students are mainly digital natives for whom social media is their world.
Then there is the reputational stain that comes from being arrested and being part of a criminal proceeding, as is the case with the two students from Pune and Kolkata, both in their early 20s. One may have been released from custody, and the other has also applied for bail and eventual acquittal, but that black mark will remain, to be accessed by any potential recruiter just by trawling the internet. Clearly, the boundaries of law and technology are being increasingly tested.
—The writer is former Senior Managing Editor, India Legal magazine