From marketing dubious drugs, online frauds and fake news to data mining for election management, the internet has presented lawmakers with new challenges and dangers
~By Neeraj Mishra
Three years ago in a small central Indian town, all supermarket and general store shelves suddenly started displaying American apple cider. The product descended on the town after a whirl of WhatsApp and Facebook messages to its residents extolling apple cider as the elixir of life. Suddenly, every health fanatic and his aunt was looking for apple cider instead of time-tested Dabur honey and Chyawanprash. Shopkeepers who could barely pronounce apple cider were offering it with Patanjalic assertion of its benefits.
It is immaterial here whether American cider is effective against heartburn or not. What it has done through clever use of social media and surreptitious use of mobile number pools of a small town has established it as a necessity in the minds of a gullible, underexposed public.
The same goes for sugar daddies who have existed for long. Young women kept by rich old men is nothing new, but what has surprised even Los Angeles is sugarbabies.com. This is a website that actively seeks out such men for its registered users: young, beautiful women in need of upkeep. A similar site, supportme.com, invites participants to meet and help young, desirable mothers with kids. It’s a thinly veiled escort service, though it ostensibly seeks to make a more permanent arrangement for both parties. In India, we simply ply Facebook with sugar daddies, sugar babies, hookers and pimps.
The cider example is less likely to raise your hackles, whereas propositioning and pimping are easily recognisable criminal acts. Remember, every cyber crime and its plausible punishment, just like the internet, originates in the US. The case of LeadClick Media, Inc, a digital promotions firm with a large affiliate network, is illustrative. It used a similar trick of approaching people by building up stories in the media through its affiliate networks. These networks provided LeadClick with case studies of weight loss. One of LeadClick’s clients, LeanSpa, used these examples to market itself and it turned out to be fake. A US court has now levied a heavy penalty on LeadClick and held it liable for spreading fake news.
Amidst reports about the government of India’s keenness to exercise a greater control over news sites, curb the menace of fake news and unverified sharing of defamatory content, it’s obligatory that existing laws, their shortcomings and remedial measures be reviewed while assessing the general decline in moral standards in society.
Various governments around the world have tried to find ways to shackle the growing influence of social media, specifically that which concerns news and fake news. A proposal by former I&B minister Smriti Irani in this regard was shot down by the prime minister’s office but it is unlikely that we have heard the end of it.
The new I&B minister, Rajyavardhan Rathore, has indicated that he will be taking a different line. He told mediapersons on May 15: “Prime Minister Narendra Modi is very clear that the media has to self-regulate. It is not us versus them.” He said the media should be the voice of the people and clarified his stand in no uncertain terms. “We hope social media users will be careful about what they put out there. Social media is totally independent and does not come under this ministry.”
While his statement has been a salve for the rising anxiety among journalists when Irani took over, it remains to be seen if the media will be again regulated in some way. Aniruddha Bahal, editor of Cobrapost.com, told India Legal: “The government forgets that the online media and other sources are already monitored specifically by the IT Act.” However, Section 66A of the Information Technology Act, 2000 (revised in 2008), has already been struck down by the Supreme Court as violative of Article 19 of the Constitution. “No law which seeks to curb freedom of speech can stay the course,” said senior Supreme Court lawyer AK Dubey.
Malaysia has just introduced the “first in the world” anti-fake news law. It seeks to punish violators with six years in prison. Mahathir Mohamad, who has returned to the presidency after 10 years, has not sought to withdraw it in a hurry. Chancellor Angela Merkel of Germany is the other leader who is contemplating a similar law. It is no surprise that both countries have a history of muzzling freedom of speech.
No dearth of laws
Do we need more laws for illegal acts when they are already in place?
- Posting defamatory comment or material against someone—Offence under Section 66A of the IT Act, now struck down, but continues to be an offence under Sec 499, IPC
- Posting or selling pornographic material on the net—Offence under Sections 292, 292A, 293, 294, IPC, punishable with imprisonment
- Posting secret information, government documents, photographs of prohibited places—Punishable for the violation of Official Secrets Act
- Posting copied material on the website—Offence under Copyright Act
- Online sale of drugs—Covered under NDPS Act
- Online sale of arms—Prohibited under the Arms Act
- Theft of hardware—Tackled under Section 379, IPC
- Web jacking, email abuse, criminal intimidation and anonymous communication—Fall under Sections 506, 507, 500 and 383 of the IPC
- Paedophilia and solicitation—Dealt with under IPC and SITA
- There are no laws to restrict data mining and Aadhaar data sharing as the case is still subjudice in the apex court
The point here is that it is not limited to free speech or press freedom alone. We already have a robust IPC and other penal acts for almost everything that is violated on the net (see box). Why do we need more control and how will it be achieved? What can be done to remedy a situation where an entire society is committing crimes on a daily basis because it is easy to do so? It’s easy to hide behind a computer or mobile screen and extort, plan a murder or heist, commit fraud, whore, pimp, troll and do almost anything that was way too difficult before the net came into our lives, with its cousins, 3G and 4G, armed with FB and WhatsApp. The truth is researchers are only just beginning to understand how the internet influences people’s behaviour and new communication technology is used to form and maintain relationships, pursue interests, and otherwise engage in a virtual world. What is understood is that the internet efficiently connects individuals who would previously have been isolated from one another. Importantly, this activity is done in relative anonymity, which contributes to close relationship formations because of reduced risks of self-disclosure. Thus, it presents some unique opportunities for deviant behaviour.
A study conducted by Harvard University reported: “People have always lied, cheated, and stolen, but the internet enables some of us to do it more easily, quickly, and cheaply.” It also contends that the internet provides a fertile breeding ground for groups interested in extreme or negatively viewed behaviour. Another study says that many casual web surfers are easily tempted by hardcore pornography. When impressionable minds view this content, they are also comforted by a false sense of being part of a group which approves of sexual deviance. It has resulted in rise of paedophilia, child rape and rape in general in the past five years. There is no study, however, which links the rise in sex-related crimes with the arrival of faster net or 4G.
The arrival of the net has provided a significant boost to all variety of criminal activity. But to limit our vision and seek control of news contents alone could be the worst mistake the government could make.
Criminal activities supported by the net can be divided into four groups and to some extent have been addressed by the IT Act:
- Outright, visible criminality: This ranges from theft to intimidation, blackmail, virtual fraud, sale of arms, etc. It also includes paedophilia and other sexual offences. It creates hate groups and spreads divisive messages.
- Defamation and trolling: People who knowingly or unwittingly indulge in acts which may be described as defamatory under the law. Virtual stalking and trolling seems easy for a perpetrator on the net, but can be harrowing and mind-numbing for the victim.
- Monetary frauds: These fraudulent acts use the net or its many tools to defraud banks, individuals and companies. The net and mobile apps are also frequently used for insider trading to knowingly defraud an entity.
- Civilian in Nature: Like copyright infringement, digital signature frauds, travel and hotel booking frauds and bypassing tax laws, including FEMA and Goods and Services Tax, are achieved through multiple identities.
A fifth category has emerged wherein all net and mobile applications are being deployed to conduct electioneering. Though there is nothing strictly criminal about conducting surveys, collating user profiles and disseminating information and seeking votes through WhatsApp, a subtext of immorality runs through it. This includes capturing data without the knowledge of the FB user or analysing an individual’s shopping and medical records. Plying his inbox with well-directed marketing campaigns based on his preferences and cleverly cajoling him towards a particular party is all very new and the law is still not ready to deal with data mining companies like Cambridge Analytica.
Coming to electioneering fraud, an estimated 15-20 lakh WhatsApp messages were sent by the BJP and its supporters alone on a daily basis for at least six months during and before the recently concluded Karnataka elections. The Congress and other parties may not be able to match this, but multimedia messaging is now standard practice in any election. The sad part is that most of the messages are either defamatory in nature and target the opponent or deliberately misrepresent facts through cleverly edited videos, superimposed or morphed pictures and voiceovers.
Some countries like Mexico have specially designed WhatsApp sites where the authenticity of any message can be verified. These are government-run sites and provide an instant reply. In India too, there are several websites like Altnews which verify the truth of messages and images through search engines, but their reach is still very limited. A few TV channels run shows on verification of viral news and videos but their interest area and time are extremely limited. Yet, images exchanged through WhatsApp can damage reputations in front of a gullible public. This was brought out by Altnews recently when it showed Sonia sitting on the lap of the Maldivian president through some clever photoshopping. But even as the fake picture was being verified, it had received 36,000 forwards within seconds. Ursula Andress’ pictures from a Bond movie in a ‘60s-style bikini have also been passed around as Sonia’s in her “bohemian years”.
The Madras High Court in a recent judgment has stated that anyone forwarding any social media message will also be held guilty under the IT Act because forwarding any message means endorsing its contents. So simply writing “forwarded as received” will not be considered sufficient defence if the message is deemed defamatory or falls under any other prohibited section of the IT Act. And even though Section 66A has been struck down, the courts have retained Section 69A and 69B of the same Act which allows the government to control, block and monitor any cyber communication.
Still, can anything substantial be done to tackle the enormous amount of criminality involved in the use of cyber space on a daily basis by a very large population? “The first thing that can be done is to make most of the cyber offences cognisable like we do under some sections of the IPC. The incidence of such crimes will then come down. At present, the police acts only on a complaint,’’ said GP Singh, Inspector General of Police in Chhattisgarh. That may or may not be the ideal way to deal with it since 66A provided that teeth, but was found too draconian by the courts. Yet there is truth in what Singh says—if the police were to take note of cyber offences in the same way it does murder, theft or illegal possession of drugs and arms, then it could make a difference.
A viable alternative seems to be to make perjury a crime. We have borrowed our penal code from the English common law, but the hesitation as regards perjury is mysterious. Witnesses and accused lie all the time and unfortunately, so do lawyers. Most developed legal systems in the world do not take lightly to falsehood in the courtroom. A system where truth itself is a casualty cannot work for long, certainly not in the cyber world. Concealed identities and duplicity afforded by cyberspace suit us fine and with no fear of perjury, cases are unlikely to see closure.
Police officers stress that though every state has a cyber cell and some experts, they are way behind technological progress and nor do they have sophisticated equipment or labs to tackle some of the smartest criminals in the world. “At the moment, if the state cyber cell is able to locate your stolen mobile, it’s creditable,” said Kalpesh Kamath, a 22-year-old cyber expert often hired by Chhattisgarh police to solve complicated cases.
Another difficulty is that 99 percent of social media servers are located outside India, mostly in the US. If one were to follow the origin of a tweet, WhatsApp message or FB post, it would usually land in Cambodia or Nigeria on its way to the US or Russia. Only 4,500 complaints are registered annually in India under the IT Act, while more than 20,000 defamation cases are registered under the IPC. There are laws and more laws for every issue. We are not at that happy stage where the world has learnt to deal efficiently with cyber criminals or even trolls. However, we must not stop looking. But please don’t attack free speech.