Role of Social Media in Litigation

Parameters in which Social Media can be used in Civil and Criminal litigation Matters:

Intelligence Gathering:

Except for few exceptions, social media is generally regarded as Intelligence not necessarily evidence. Social media is frequently used to support existing evidence. Intentionally removing data from a social networking site to avoid discovery could be viewed as destroying evidence. Sec 204 of the Indian penal code deals with the destruction of evidence both electronic and physical. Section 204 of the Indian Penal Code is defined below.

204. Destruction of 1[document or electronic record] to prevent its production as evi­dence.—Whoever secretes or destroys any 1[document or electronic record] which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such 1[document or electronic record] with the intention of preventing the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully sum­moned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[3]

While doing investigation the investigating officers apart from social networking sites may also look at blogs, news stories, and photo sharing programs, You-tube, bookmarked sites, and comments on blogs. Apart from these things, the role of Intermediaries becomes very important. I.T act, 2000 sec 79[4] says that intermediaries are not liable in certain cases for third party information made or link posted.

Sec 79 A of the I.T is very important taking into account the role of electronic evidence. Sec 79 A of the I.T act says that the central government for purpose of providing the expert opinion on electronic form evidence before any court or other authority, by notification in the official gazette, any department body, or any agency of the central or state government as an examiner of electronic evidence. Section  79 of the I.T Act, 2000 mandates the central government to notify the examiner of electronic for the purpose of providing an expert opinion of electronic form evidence before any court or other authority. For identification and selection of examiner of electronic evidence, the Ministry of Electronics and Information technology (MEITY) has designated and developed a scheme, initially to access and notify Examiner of electronic evidence on the pilot basis with 3 to 5 labs.[5]

Intermediaries are though, given immunity under section 79, they could still be held liable under section 72A for disclosure of personal information of any person where such disclosures are without consent and with intent to cause wrongful loss or wrongful gain or in breach of a lawful contract.

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[1] www.businessdictionary.com

[2] www.x1.com/download/x1_discovery_webinar_nw3c.pdf

[3] https://indiankanoon.org/doc/1905618/

[4] Section 79 in The Information Technology Act, 2000

95 [ 79 Exemption from liability of intermediary in certain cases. –

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if-

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if-

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation. -For the purpose of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.]

[5]  http://meity.gov.in/writereaddata/files/notification-pilot-scheme-for-notifying-examiner-of-electronic-evidence-under-section-79a-of-the-information-technology-act-2000.pdf