“ I think there should be regulations on social media to the degree that it negatively affects the public good ”
–Elon Musk
As a 90s kid, I have witnessed the technological as well as cultural shifts that came with the invention of WWW (world wide web). In the mid-90s message forums online transformed into online forums. It was easy and it was accessible to all. Within the 7 years of its conception, we were introduced to the first social media site Six Degrees. And it was just the beginning.
Our ability to communicate through language and gestures gave us humans a distinct evolutionary advantage than other species. We, humans, are social beings, and we need social interaction. Words bonded us. Our linguistic ability was one of our momentous accomplishments. However, how we communicate between ourselves has gone through changes with the ever-changing times. It has been a long-lasting peregrination that started from the earliest cavemen to the earliest civilization until this very era of globalization & modernization; it is striding on. The only difference is those cavemen used to paint symbols on their cave walls, we use emojis. Technology has simplified our lives. And it has also changed the way we communicate these days. Hashtags, Memes, Acronyms, Posts, Likes, Comments, Shares, Tweets, Mentions are just we stay ‘in touch’ with each other and with the entire world.
These days when someone mentions social media, we visualize sites like Facebook, Twitter, Instagram, Snapchat, Whatsapp, etc. Some of you may not even remember a world without social media, which is hysterical and amusing. To be candid it’s also difficult to imagine a world without social media. In this day and age, these social media sites are not just sites where you upload your favorite selfies and memes but it has become a powerful weapon. A weapon if used rightly can bring people together; give voice to the masses who remain unheard; bring down corrupt dictatorship, like the one we witnessed during 2011, in Egypt, where hundreds of thousands of protestors gathered in Tahrir Square, which later unseated the president, Hosni Mubarak. These protestors used ‘Facebook to schedule the protests, Twitter to coordinate and Youtube to tell the world’. But there’s always two sides to a coin. Sometimes people also use social media for cyberbullying, spreading fake news, trolling, catfishing and privacy abuse. But the most sinister and blood-curdling usage of social media is done by terror groups. Al- Qaeda is one of such groups which uses social media extensively. Islamic State in Iraq & Syria or ISIS is another such group that uses social media as a medium to threaten the masses by posting videos of beheadings.
More than 1.5 million pieces of content (web links, news stories, blog posts, notes, photos, etc.) are shared on Facebook daily. Social media has overtaken porn as the #1 activity on the Web. 1 out of 8 couples married in the U.S. last year met via social media. It took the Radio 38 years to reach 50 million users, the Television took 13 years & the Internet took 4 years to gain 50 million users. But facebook added 100 million users in less than 9 months. If Facebook were a country it would be the 4th largest country, ranking itself after China, India, and the United States. Companies are using LinkedIn as their primary tool to find employees. It is clear that social media isn’t a fad. It’s a fundamental shift in the way we communicate.
Changing Times:
It would be asinine to ignore how social media impacts society as a whole. The power of social media has instigated various social changes. Its fierce presence has been recognized in the legal environment as well. Law and social change go hand in hand. Law is both independent and interdependent on the social system. The changes in a particular society can be studied by studying the law, and by studying the law one can understand the changes in that particular society. Ergo law is the reflection of the will and wish of society.
India has one of the highest numbers of internet users and the highest social media presence in the current scenario and this will only keep on increasing. These days almost everyone owns a smartphone which comes with a package of preinstalled social media and other apps. With just a few clicks and your online profile is created. One does not need to submit any kind of ID proof or any kind of document. Sounds very convenient, right? It’s due to this convenience that it has been often misused. With great and new increase in technology, emerges a great and new kind of crime, called Cyber Crime. Cyberstalking and online harassment is a very quotidian occurrence in the world of social media. The veil of anonymity gives these perpetrators a false sense of security. In this techno-savvy day and age where an individual is heavily dependent on this highly digitalized world of e-commerce, e-business, e-governance, e-procurement and emails, laws related to cyber crime was the need of the hour. Information Technology Act, 2000 was one of the first steps India took to address various offences related to cyber crime. IT Act 2000, incorporated not just any and all conceivable cyber crimes against a person, but also included cyber crime against government and property. It also encompassed laws relating to not only cyber crimes but intellectual property, data protection and privacy.
Offences such as cyber stalking, impersonating, identity theft, violation of privacy, publishing obscene or sexually explicit material including that of a child (a person who has not completed 18 years) are recognised as Cybercrime against a person, and are punishable under Information Technology Act 2000.
Serious offenses like cyber terrorism which is considered as Cybercrime against the government is punishable with imprisonment for life. This act also acknowledged computer vandalism, siphoning of funds from financial institutions, stealing data, and copyright as offenses. These offenses are Cybercrime against the property.
Cybercrimes such as credit card fraud, hacking, virus attacks, online banking fraud, pornography are becoming run of the mill events.
According to National Crime Records Bureau or NCRB, which released the statistics late on Monday,30th,March 2020, “During 2017, 56.0% of cyber-crime cases registered were for the motive of fraud (12,213 out of 21,796 cases) followed by sexual exploitation with 6.7% (1,460 cases) and causing disrepute with 4.6% (1,002 cases).”
The cases of cybercrime in India have clearly doubled. In 2014, 2015 and 2016, India recorded 9,622, 11,592 and 12,317 cases of cybercrime respectively.[1]
Admissibility of Social Media as Evidence
“Absence of evidence is not evidence of absence”
-Carl Segan
According to Lochard’s principle of forensics which states that the perpetrator of a crime will bring something into the crime scene and leave with something from it. This principle is also applicable to cybercrime. Like fingerprints in a crime scene, social media can provide an irrefutable trail that investigation agencies can use to trace the crime. But we need to understand that like any other evidence, these sites can provide not only tangible evidence of criminal or civil disobedience. In criminal cases, law enforcement looks for the presence of the crime itself or corroborating evidence of a crime. On the contrary, a civil investigation pertains more to finding evidence that supports a claim. Regardless, social media evidence is considered a form of digital evidence, which for all the intents and purposes, is a relatively new aspect in the field of investigations.
A crime primarily has four key components- mental state or men’s rea, conduct or actus reus, concurrence, and causation. And to prove that one has committed a crime the prosecution needs evidence. The burden of proof mostly lies on the prosecution (except in a few exceptional cases). In the eyes of law, a person is innocent until proven guilty. The guilt must be proven beyond a reasonable doubt. Evidence becomes an instrument to satisfy the court, to prove or disprove a disputed fact between the parties involved in litigation. There are various forms of evidence. Other than the traditional forms of evidence like physical, testimonial, circumstantial, etc, electronic evidence has been accepted recently and is considered as documentary evidence. Section 3 of the Indian Evidence Act,1872, recognizes electronic records as evidence.
In its rawest form, social media can be considered a form of evidence, but unlike traditional criminal evidence, social media takes on the unique form of electronic or digital evidence. By definition, electronic or digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Such form evidence, especially that of social media, tends to be more capacious, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available than traditional forms of evidence. But before accepting digital evidence it is mandatory to determine its relevance, veracity, and authenticity by the court and to establish that whether the fact is hearsay or a copy is preferred to the original.
In 2017, Haryana Court recognized whatsapp chats as evidence to convict 3 law students of rape. The 3 former students of OP Jindal Global University were held guilty for blackmailing and raping a student of the same university for two years. ASJ Sunita Gover said that the messages proved that the victim was forced to keep sharing nude pictures with the culprits. The court considered the chats as documentary evidence supporting the victim’s statement.[2]
However, in another incident, Justice Sanjeev Sachdeva observed while hearing the petition for registering the FIR connection with an alleged suicide note claimed to be of Arunachal chief minister Kalikho Pul, “A WhatsApp post does not qualify as legal evidence, especially when neither the original nor a copy of the original document is produced.”[3] Such a form of evidence needs corroboration.
Our judicial system is to a great extent based on the British Legal System. The modifications that the Indian judicial system has experienced, the United Kingdom underwent similar transformations. Social media and other electronic forms of communication is such a formidable force that cannot be ignored by any judicial system or any nation. Emails are admitted as documentary evidence in the United Kingdom. The Code of Practice for Legal Admissibility and Evidential Weight of Information Stored Electronically provides a framework to determine the reliability of such electronic forms of evidence.
In a 2018 case of Forse v Secarma, whatsapp messages furnished the evidence which guaranteed the success of Secarma at the very interim injunction stage of the trial.[4]
The powerful impact of social media is well recognized in the U.S. legal environment. Alteration of privacy settings, deactivating social media accounts, deleting any content all these falls under the unlawful destruction of evidence. The federal law known as the Stored Communications Act (SCA) states that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Law enforcement and government entities that have good faith are prime exceptions. Privacy rights are overruled when social media contradicts injury claims.
In Romano V. Steelcase Inc. 2010, a famous personal injury case, the Supreme Court of New York recognized electronic discovery or e-discovery, issued discovery orders granting the defendants access to her the plaintiff’s facebook and myspace account, including all the deleted pages and information. Justice Jeffrey Spinner rejected the plaintiff’s argument that the production of such information would violate her right to privacy.
Zimmerman vs. Weis Markets, Inc. another personal injury case from 2011, where the judge ruled in the favor of the defendant and permitted discovery and access to the plaintiff’s Facebook and myspace accounts, to refute the claim of the plaintiff, that he suffered permanent injury to his health and wellness.
Judge Michael Corriero explains “the prohibition against using illegally, essentially solely, to law enforcement. It doesn’t apply to another civilian.”
An attorney has ethical responsibilities when searching on social media platforms and collecting content to be used as evidence as well as any attempt to tamper with such content like deleting is considered unethical.
The social media revolution has truly changed the face of the investigation. And Facebook and Twitter have become one of the most underrated sources for law enforcement. According to a 2012 study conducted by LexisNexis, four out of five officers used social media for investigative purposes from a total of 1,221 law enforcement professionals surveyed. Of the agencies surveyed, 82% of local and municipal law enforcement agencies utilized social media for investigative purposes, with only 71% of state agencies utilizing social media for the same purposes. Additionally, 86% of cities under 50,000 people utilized social media in some respect, while only 78% of cities over 100,000 people used social media in the same capacity.
A growing number of people joining social media every day makes it an efficient tool for law enforcement to monitor activities of any suspect.
The undeniable and strong presence of technology has been acknowledged by various courts in various forms. The courts are not hesitating to use social or digital media in innovative ways.
In the same year of 2017, the Rohini Civil Court in Delhi accepted Whatsapp blue double-ticks as receipt proof. Senior civil judge Sidharth Mathur accepted the printout as proof that notice had been read by the recipients, and concluded that defendants had acquired the knowledge of the scheduled hearing. [5]
In another incident Justice Rajiv Sahai Endlaw, while hearing a case filed by Tata Sons, allowed the plaintiff to serve the summons on one of the defendants through Whatsapp, email, and text message. The three defendants were served at their respective addresses, but as the summon could not be completed at his address the Delhi High Court allowed this move. [6]
The infamous 2g case was one of the first instances where the court considered summons via email as a valid summons.[7]
However, very recently in 2018, Special Judge of Patiala House Courts, New Delhi dismissed the application of a complainant who sought the usage of email and Whatsapp for serving a summons. The Court rejected the application saying that the court system does not have the facility to affect the service through electronic mode. (Bhim Rathke vs Mr. R.K. Sharma)[8]. Hence it can be said that it only in exceptional circumstances where the court allows service of summons via any electronic medium.
Determining authenticity:
In India, law enforcement identifies a suspect and then asks platforms to supply information about them. For example, WhatsApp requires a Mutual Legal Assistance Treaty request or letter rogatory to compel the disclosure of the contents of an account. WhatsApp will take steps to preserve account records in connection with official criminal investigations for 90 days pending the receipt of the formal legal process. One can also expeditiously submit formal preservation requests via the WhatsApp Law Enforcement Online Request System. In responding to a matter involving imminent harm to a child or risk of death or serious physical injury to any person and requiring disclosure of information without delay, a law enforcement official may submit a request via the WhatsApp Law Enforcement Online Request System.[9]
Whatsapp strictly refuses to review or respond to requests submitted by non-law enforcement officials. Whatsapp also does not retain data for law enforcement purposes unless they receive a valid preservation request before a user has deleted that content from their service. Because WhatsApp does not store messages once they are delivered or transaction logs of such delivered messages. According to them, Undelivered messages are deleted from their servers after 30 days.
The evidentiary value of an electronic record totally depends upon its quality. Provisions regarding dealing with the evidentiary value of the electronic records are discussed in the Indian Evidence Act, 1872. Discussions on the authenticity and admissibility of documentary evidence in the form of an electronic record and its standards at par with the conventional form of documents are dealt with in the Indian Evidence Act. The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872.
Section 65-B of Indian Evidence Act lays down the conditions and procedure of proof of an electronic record in a court of law. Section 65B is important as it recognizes that the original primary evidence of electronic records cannot be expected to be brought before the court and even if it is, the same being in binary form the same cannot be understood by the court. The net effect of Section 65B is that the output in the form of a printout or data copied on CD/DVD etc produced by the computer is rendered admissible in the court, provided certain conditions are met. This is the import of Section 65B(1). The output of an electronic record, in order to be admissible in a court of law, has to be filed along with a certificate u/s 65B(4) of the Evidence Act. Such a certificate has to be issued by a person occupying a responsible position with respect to the computer from which the data is produced. The certificate has to certify the conditions laid down in S. 65B(2) relating to the integrity of data and computer system; the manner of production of the output of electronic record, identity, and particulars of device used including the original device. The entire idea behind the certificate is to ensure, once again, the integrity of source, the authenticity of data, so that the court can place reliance on it. This is important since electronic data is more prone to tampering and alteration. (In Kundan Singh Vs. The State 2015, the court stated that a certificate u/s 65B can be filed even thereafter, and need not be filed alongside)[10]
The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such a period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such a period, the computer must have been operating properly. In case the computer was not properly operating during such a period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
(4) The information contained in the electronic record should be such as reproduced or is derived from such information fed into the computer in the ordinary course of such activities.
Electronically stored information was treated as a document in India before 2000, secondary evidence of these electronic ‘documents’ was added through printed reproductions or transcripts, and the authenticity was certified. The signatory would identify the signature in court and be open to cross-examination by meeting the conditions of both sections 63 and 65 of the Evidence Act. When the creation and storage of electronic information grew more complex, the law had to change more substantially. By the Information Technology Act, 2000 new definitions are given to the words “data”, “electronic record”, and “computer”.
- New Section 22A has been inserted into the Indian Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question.
- Section 59 of the Evidence Act is amended by the IT Act to exclude electronic records and inserted section 65A and section 65B, instead of submitting electronic records to the test of secondary evidence as contained in sections 63 and 65.
- Section 65A has given the right to prove the contents of electronic records in accordance with the provisions of section 65B. Section 65A of the Evidence Act is for electronic records just as section 61 does is for documentary evidence.
- Section 65A is a special law that stands apart from the documentary evidence procedure in sections 63 and 65. Any probative information stored or transmitted in digital form is digital evidence or electronic evidence.
Under Indian Law S.69 and 69B of the Information Technology Act, 2000 lays down the provision for investigation of certain crimes that require search upon order by the competent authority. The powers of search and seizure are also laid down under several other rules, such as rule 3(9) of the Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011. This allows access to information from intermediaries by a simply written order by “any agency or person who is lawfully authorized for investigative, protective, cybersecurity or intelligence activity”. Under rule 6 of the draft Reasonable Security Practices Rules, 2011 framed under Section 43A of the Information Technology Act, where any government agency may, for the prevention, detection, investigation, prosecution, and punishment of offenses can obtain any personal data from an intermediate “body corporate” which stores such data.
Conclusion:
The rules framed for investigation of digital evidence are sort of regressive and do not inspire much confidence when it comes to safeguarding privacy. Digital evidence has proved to be a crucial role in the conviction or acquittal of a suspect in recent years. It’s not just the Indian Judiciary but nations worldwide acknowledge the presence and power of Social Media.
For example, In the United States, the US Federal Rules of Evidence is the legal measuring stick for any form of electronic evidence, including social media evidence. The Federal Rules of Evidence covers both civil and criminal evidence with some rules applying directly to one or the other. One of the provisions that can be directly applied to the capture and collection of online social media evidence is that of Rule 1001, which refers to the contents of writings, recordings, and photographs. This rules generally require the original or reliable duplicate of any “writing, recording or photograph” when the content of that evidence is given legal significance by substantive law (such as a copyrighted picture posted to a social media site) or by the parties themselves (such as using a video recording posted to a social media site of a particular crime). This is commonly referred to as the “Best Evidence Rule” which in short limits the admissibility of evidence to merely the best that the nature of the case will allow. To exemplify, it can be implied that an original online posting of a particular Facebook profile can essentially be altered by the owner of the profile at any given time, thus an effective screen capture of such evidence would suffice as the “best evidence” in place of the original. Although there is really no de facto standard as to how social media artifacts should be captured legally, there are a few cases that provide precedence into how such sites can be captured.
In Barnes v. CUS Nashville, 2010[11], in which the Magistrate judge offered to create a pseudo-Facebook account if two witnesses were willing to accept the magistrate judge as a “friend” on Facebook solely for the purpose of reviewing photographs and related comments in camera-aka in the chamber. After reviewing and disseminating to the parties any relevant information, the magistrate judge would close the Facebook account and issue a ruling.
There are also issues of legality that must be considered when capturing content that lies behind measures of protection such as passwords or privacy settings that prohibit access to the general public.
Many Facebook users do not show or broadcast their pages to the general public, but rather only to particular friends that they choose to.
Investigation for any kind of digital evidence is a different ball game. Unlike traditional investigation, the investigator has no control over Social Media and the Law. This can be a legal red-flag from the perspective that just like traditional evidence, social media evidence must be collected in a controlled and proper forensic manner. This difficulty is further complicated by the nonavailability and lack of court-validated digital forensic tools that are available for the collection and analysis of social media evidence.
Approved & Published – Sakshi Raje
Reference
[1]https://www.livemint.com/companies/news/cyber-crime-cases-in-india-almost-doubled-in-2017-11571735243602.html
[2] https://www.hindustantimes.com/india-news/whatsapp-chats-land-three-law-students-of-sonepat-varsity-in-prison-for-rape/story-ZyQBR1vqqjoBoReQT2coMJ.html
[3] https://www.gadgetsnow.com/tech-news/whatsapp-messages-cannot-be-treated-as-evidence-delhi-hc/articleshow/59643849.cms
[4]https://www.casemine.com/judgement/uk/5c8f2dbe2c94e027efb18617
[5]https://www.huffingtonpost.in/2017/05/18/court-accepts-the-blue-tick-of-whatsapp-as-proof-of-receiving-th_a_22096513/
[6] https://www.hindustantimes.com/delhi/delhi-hc-allows-service-of-summons-via-whatsapp-email-text-message/story-0Une6kRAI9T9AYPZp9TjbJ.html
[7]https://www.hindustantimes.com/delhi/summons-through-sms-e-mail-valid-2g-case-court/story-A1iBVVGJVvOWChnu0vnQGI.html
[8] https://indiankanoon.org/doc/186269913/
[9] WhatsApp Law Enforcement Online Request System
[10] https://indiankanoon.org/doc/10902800/
[11]https://blog.ericgoldman.org/archives/2010/06/judge_offers_to.htm
