Many Twitter users include the disclaimer "retweets are not endorsements" in their bio. But, can this disclaimer protect you from criminal prosecution?
KPS Malhotra, Deputy Commissioner of Delhi Police, recently stated that individuals must accept responsibility for retweets and that even endorsement of a viewpoint on social media becomes the viewpoint of the person sharing or retweeting it.
In this explainer, Law Tribe traces legal provisions and significant judicial decisions on the question of whether retweeting or forwarding a social media post is a criminal offence in and of itself.
Laws regulating offensive/derogatory messages
While there is no direct provision in Indian law that declares retweeting, forwarding, or sharing posts on social media a criminal offence, there are several provisions in the Information Technology Act and the Indian Penal Code that provide for criminal liability.
Section 67 of the IT Act establishes penalties for publishing or transmitting obscene material in electronic form. In the event of a second or subsequent conviction, the sentence may be increased to five years in prison and a fine.
Section 67 B of the IT Act provides for a penalty of up to 5 years in prison and a fine of up to ten lakhs for publishing materials online containing children engaged in sexually explicit acts or conduct, or indecent representation of children, or facilitating online abuse of children, among other things.
The following provisions in other laws apply when offensive or derogatory messages are liked, shared, or commented on:
Sec 295 A of the Indian Penal Code (IPC) states that "whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, insults or attempts to insult the religion or religious beliefs of that class by words, either spoken or written, or by signs or by visible representations or otherwise, shall be punished with a fine and/or imprisonment." We frequently come across loaded statements made about religion or religious practises on social networking sites with the intent of inciting a war of words or violence; such statements may invite arrest, so we must be extra cautious about what messages we forward, like, or share. S Ve Shekhar's anticipatory bail application was denied on the grounds that forwarding the message equates to endorsing it.
Messages posted on a Whatsapp group or on Facebook or other social networking sites containing words intended to harm or knowing that such imputation will harm a person's reputation may result in arrest under section 500 of the IPC as publication of such words may amount to defamation. "Whoever, by words either spoken or intended to be read, or by signs or by visible, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person," according to Section 499 Defamation. The punishment for defamation is two years in prison, a fine, or both.
Other sections of the IPC that may be invoked if the contents of the posts/messages shared, liked, or forwarded are offensive or derogatory in nature are Sec 505(1)(C) for statements made with the intent to incite one class or community against another class or community is punishable by imprisonment for up to three years or a fine, or both. Depending on the facts of the respective cases, the aforementioned sections of the IPC may be invoked individually or in conjunction with other sections.
The right to freedom of expression guaranteed by Article 19(1)(a) is not unrestricted; it is subject to reasonable limitations. The right to free expression cannot be used arbitrarily to offend, defame, or harm other people or communities. Reasonable restrictions have been imposed to prevent misuse and abuse of the right to freedom of speech.
A Look On International Decisions
In 2018, Germany enacted the Network Enforcement Act (NetzDG)[8] to establish procedures and regulatory mechanisms for online platforms' content. Individuals and online businesses who fail to follow the procedures face fines.
The European Union (EU) enacted the General Data Protection Regulation (GDPR) to establish rules for online businesses, including social networking sites, to receive, store, and use data.
To regulate online content, Australia[9] has passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019.
It's surprising to learn that in China, sites like Google, Whatsapp, and Twitter are blocked, and they have their own versions like Webio and Bidu.
Online safety and security tips
Every day, a significant amount of time is spent online and on social networking sites liking, forwarding, and sharing messages without regard for the consequences. It is always better to be safe than sorry, so here are a few pointers to keep you safe and avoid unpleasant situations:
- When commenting on a contentious issue, use politically appropriate language and diplomacy.
- Don't be offensive simply because someone disagrees with you.
- Don't share messages that could spark a debate.
- Divergent viewpoints emerge as perception and thinking differs among people from various socioeconomic and cultural backgrounds, and one must be aware of this.
- Check the message's appropriateness before sending it to others or liking and forwarding it.
- Do not engage in mindless message forwarding.
- Beneficial constructive criticism may be posted.
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