To WhatsApp or Not to WhatsApp, That Is The Question.

NEW DELHI: At the push of a button, a message can be sent to all your friends on Facebook, all your WhatsApp and Twitter contacts. With 240 million Indians on Facebook, 200 million on WhatsApp and 10 million on Twitter, legal pronouncements on social media have special significance for citizens.

There have been several judgements related to WhatsApp, significantly from the Honourable High Courts of Delhi and Madras. However, that of the High Court of Madras of May 10, 2018 needs public attention.

This judgement in the case of crime No 148 of 2018, CRL OP No 12229 of 2018, related to the forwarding of a highly objectionable WhatsApp message, [claimed to be a forward]; by a public personality, S. Ve Shekar [originally AIADMK, now BJP] which was found by the court to be “direct abusive obscene foul language.” The subject pertained to professional women and the forward centred on the texted remark that, “… women cannot become reporters, or anchors unless they sleep with top bosses …”.

The petitioner [accused] in the case being charged under section 504, 505 [I] [C] and 509 of the IPC [read with section 4 of the Tamil Nadu Prohibition of women Harassment act], had approached the court apprehending arrest and consequently sought anticipatory bail.

In its deliberations the court went into the details of the facts, evidence of various persons, and the record. Despite protestations of innocence by the petitioner, the Honourable Judge, found the accused, a highly educated public personality, with a media and theatre background, a member of the censor board; lacking in bona fides, mal- intentioned and abusive. The operative part of the judgement consequently denying anticipatory bail to the petitioner, emerges from sound logic, and law. It is the wider application of the conclusions that inexorably draws us to them.

While it is well understood that Judgements of a High Court are binding within their jurisdiction, these judgements have persuasive value across courts of the nation. Undoubtedly the ratio of any judgement is intimately linked to the facts of that case, but general conclusions have a far wider impact on the psyche of Judges and lawmakers. The conclusions unfettered by linked evidence or facts that emerge in this judgement are [as quoted]

‘words are more powerful than acts’
‘talking is different to typing. Typing becomes a document ’
‘Forwarded message is equal to accepting the message and endorsing the message.’

While the first may strictly fall in the category of an opinion, there is little chance of its misrepresentation, since laws are explicitly clear on acts and action.

The second has implications linked to the Evidence Act.

The third emphatic conclusion however, carries with it far reaching implications for citizenry.

Social Media, its growth as well as proliferation are forgone conclusions in the information age. Designed to network, socialize, share information and knowledge, they mutate and propagate, both to meet human needs, as well as subtly mould human social behaviour. At any rate, they are accessed by choice and used by individual free will. It is globally recognised that regulation of Social Media is a daunting, dynamic enterprise. Bringing all its myriad dimensions under the law is equally formidable.

Law makers in India will need to toil harder since the centrality of our laws are largely from the early 1900s. Though great strides have been made in sections of the law by Courts, those that are pertaining to Electronic and Social Media, are still evolving. This conclusion on forwarding of messages [as a stand-alone pronouncement], sits on the intersection of privacy, enabling technology, and social behaviour.

Social Media, as is common knowledge, can be used for infinite benefit, as well as demonic vice. It can be harnessed to save lives, alleviate suffering, as well as propagate terror. Laws will have to be nimble, mature, and nuanced to deal with this domain. Stentorian assertions without qualifications run the risk of being used and misused by interested parties, including instruments of the State, to curtail freedom of speech; intrude into personal space and vitiate social communication. It bears re-statement though that such ‘freedoms’ cannot result in the kind of excess outlined in the case in question adjudicated by the Madras High Court, which has so deeply and maliciously wounded the sentiments and sensibilities of women.

An unfettered legal application of the conclusion, also would run in conflict with extant social trends. How does one deal with the phenomena of Fake News? Cyber Diagnostics, lack the sophistication and reach to reveal a true source, when the source seeks to remain occluded. In the present media and information paradigm, to establish something as fake news can be a long, perception linked process. WhatsApp encourages groups and interaction. Each group develops a distinct eco-system based on interests, tolerance, mutual understanding etc. The messages are forwarded for a variety of reasons such as information, humour, indignation, anguish. A firm proclamation of law will have to take such a complex human social dimension into view.

This conclusion viewed in light of the preceding is illustrative of the fact, that legal pronouncements in the domain of social media, have to be qualified, and prescient. Their misrepresentation and misuse must neither propagate authoritarianism, nor permit abuse and excesses, as apparent in this legal case. In this specific case, an appeal is pending in the Supreme Court. As citizens we await the outcome for more than one reason.

(Lt Gen Sanjiv Langer [retd] is former Member of the Armed Forces Tribunal)