Future of WorkSocial Media and Cyber LawsTechnology Law / Cyber Law

Role of Social Media in Litigation

This article from Mr. Rodney D. Ryder is second in our series which highlights the role social media plays in litigation in contemporary times. The first article can be accessed here.

Other laws relating to evidence gathering and trial procedure

Sec 65 A and Sec 65 B of the Indian evidence Act tells about provisions relating to evidence as an electronic record. Sec 65-A [Special provisions as to evidence relating to electronic record]says that the contents of electronic records may be proved in accordance with the provisions of section 65B. Sec 65 B [Admissibility of electronic records] [1] allows the use of electronic records i.e. video, documents, photos, emails and any computer-generated document legal in the trail and can be taken in as evidence. When it comes to the collection of evidence, the procedure for gathering evidences from switched-off systems and live systems has to comply with the search and seizure mandate under Section 165, CrPC and Section 80 of the IT (Amendment) Act, 2008.

Can police access to restricted social media:

Social media sites such as Facebook and Twitter usually will not turn over information about their users without a search warrant, subpoena or other forms of a court order.[2]  Therefore unless and until a search warrant is issued or a court order is made then only social media will hand over your information to the police or a court or a legally appointed investigator of the court otherwise it does not have any right. If you want any information regarding law enforcement authorities and want to seek records from Facebook then you have to follow the above-mentioned procedure. If you want the information for your knowledge regarding any Facebook account then you have to visit the safety center web page which also gives guidelines regarding information seeking from Facebook both by legal and non-legal authorities.[3] Police have the right to access the social media site if the complaint has been made to the state cyber cell or a police station in case of the cell regarding cyber offense and contraventions mentioned under chapter IX and XI of the I.T act 2000.

Sec 69,69A, and 69B of the IT Act gives the Right to Government and Police officials to access, block or collect information from social sites or computer sources.

Sec 69 of the Act gives Powers to issue directions for interception or monitoring or decryption of any information through any computer resource.

Sec 69A of the IT Act gives the Power to issue directions for blocking for public access of any information through any computer resource.

And 69B gives the Power to authorize to monitor and collect traffic data or information through any computer resource for Cyber Security.

Under what circumstances, a direction to intercept may be issued?[4]

Purposes for which interception may be directed

Under section 69 of the I.T Act, the powers of interception may be exercised by the authorized officers “when they are satisfied that it is necessary or expedient” to do so in the interest of:

Sovereignty or integrity of India, Defense of India, Security of the state, friendly relations with foreign states or Public order or Preventing incitement to the commission of any cognizable offense relating to above; or for the investigation of any offense.

Under section 69B, the competent authority may issue directions for monitoring for a range of “cybersecurity” purposes including, inter alia, “identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach cybersecurity”.

Now we will discuss one of the very important sections of Code of Criminal Procedure, 1973 i.e. Section 91.

Recently we have seen indiscriminate use of S.91 of the Code of Criminal Procedure, 1973 (CrPC) by police officers to demand a wide range of information from Internet intermediaries and users that is beyond their powers under the provision. Let us first see section 91 of Crpc, 1973. Section 91:  Summons to produce a document or other things.

Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

In short, we can say that it gives power to a court or a police officer to ask for a document for investigation purposes. Now let’s see how it’s been illegally used in case of online content.

Misuse of Sec 91 Cr.PC and correct way of using it: [5]

Directing it to Delete and block the Content:

The provision only enables the police officer to conduct an investigation and can by no stretch of the imagination to be used as a censorship tool to delete or block content. Even in the case of books or newspapers or other documents, the State Government will have to notify an order forfeiting such book or newspaper and only based on such an order can a police officer seize such publications as per Section 95 of the CrPC. This cannot be done under S.91 of CrPC. The means by which a direction can be issued to block content is under S.69A of the Information Technology Act, 2000 as per procedures laid down under Information Technology (Procedures and safeguards for blocking for access of Information by Public) Rules, 2009 or by an order from a competent court.

Investigation in the case of non-cognizable offenses – Defamation is an example of a non-cognizable offence. As per Section 155(2) of the Code of Criminal procedure, in the case of a non-cognizable offence, a police officer cannot conduct an investigation without obtaining permission from a Magistrate Court. However, it is often seen, in many cases that the police proceed with the investigation irrespective of the nature of the offense. The Hon’ble Supreme Court has held in State of Haryana v/s Bhajan Lal, 1992 SCC 33 that criminal proceedings can be quashed under Section 482 of CrPC on the ground that where the allegations in the FIR do not constitute a cognizable offense but constitute only a non-cognizable offense, no investigation is permitted by a police officer without an order of a Magistrate. Thus, investigation of a defamation case under Section 91 of CrPC is illegal and is not permissible.

Demanding information from the accused – Article 20 (3) of the Constitution of India provides citizens the right against self-incrimination or a right against testimony that would be against his interest in a case. The Hon’ble Supreme Court has held in State Of Gujarat V. Shyamlal Mohanlal Choksi (196 5 M.L.J. (Crl.) 417) that section 94 of the Criminal Procedure Code (old Code and presently Section 91) on its true construction does not apply to an accused person. Thus, S.91 of Cr.PC cannot be used by the police for asking information from an accused in an online defamation case.

An online portal or a user on receiving a notice under Section 91 CrPC should try to understand the nature of the offense alleged. Many a time the notice only mentions the Sections of the Indian Penal Code or the Information Technology Act and it will be better to do a quick search on the Internet (You could refer http://indiacode.nic.in/ or http://www.indiankanoon.org) to get an idea of the relevant provisions. It is essential to submit a response to the notice received but you should search before submitting a response It is better to consult a lawyer to get an opinion on the notice and to draft a response to ensure that you don’t end up over-complying with the requests in the notice because your privacy is in your hand and even police in some states is also not aware of the provisions of I.T act and what they have to demand when searching or gathering any document under sec 91 Cr.PC.

[1] (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether – (a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -(a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, – (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer-operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

[2] https://www.allenlawaz.com/can-my-social-media-posts-be-used-as-evidence-against-me/

[3] https://www.facebook.com/safety/groups/law/guidelines/

[4] https://cis-india.org/internet-governance/blog/privacy/safeguards-for-electronic-privacy

[5] http://sflc.in/s-91-of-crpc-the-omnipotent-provision/


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