Está en la página 1de 34




B.a.LLB (Hons)

1 | Page



Topic Page No.


2.1. Statement of the Problem


2.2. Hypothesis


2.3. Objectives of the Study


2.4. Scope of Study


2.5. Research Methodology


2.6. Chapterisation Scheme





3.1. Backdrop


3.2. Social Networking Sites: A Definition

3.3. Historical background


3.4. Functions


3.5. Advantages


3.6. Disadvantages


3.7. Legal Issues




2 | Page

4.1.1. Information Technology Act, 2000


4.1.2. Indian Penal Code, 1860



4.2.1. Indian Evidence Act, 1872


4.2.2. The Code of Criminal Procedure, 1973





5.1. Cyber Defamation


5.2. Email Spoofing


5.3. Cyber Stalking


5.4. Clickjacking


5.5. Cyber Terrorism


5.6. Grooming


5.7. Cyber Bullying


5.8. Publishing Obscene Information in Electronic Form




6.1. Historical Perspective


6.2. We Hate India Community Case


6.3. Anti-Shivaji Community Case


6.4. First Fake Profile Case


6.5. First Drug Party Case


6.6. Case

3 | Page

6.7. State of Tamil Nadu v. Suhas Katti


6.8. Angel Murder Case


6.9. Yuvika Chaudhary Case




7.1. Conclusion


7.2. Suggestions




4 | Page


AIR..All India Reporter

Cr.L.J.Criminal Law Journal
Cr.P.C.The Criminal Procedure Code, 1973
e.g..example gratia
FIRFirst Information Report
i.e.Idest (that is)
Id...Iden (in the same source; variation of pages)
Ibid..Ibidium (in the same place or work)
IEAIndian Evidence Act, 1872
IPC.The Indian Penal Code, 1860
ITA...Information Technology Act, 2000
p.,, pages
SC.Supreme Court
SCCSupreme Court Cases
viz..Vide licet (namely)

5 | Page

The Internet is ever growing and we are nothing but pebbles in a vast ocean of information.
On the Internet there are millions and millions of computer users logging on and off on a
daily basis. Information is transferred from one point to another in a heartbeat. With the
dawning of modern era, it seems that everyone in the world is a member of social networking
sites these days. If anyone is not a member of these sites, it feels like he or she is not a social
person or he does not exist in the world. It has now become the most important part of an
individuals life, without visiting one day; it feels like we missed some important
information. So here the main purpose of the researcher is to elaborately explain what
constitute social networking or social media sites and what are their legal implications. In
order to get a proper understanding, the researcher has also talked about the statutory
framework and discussed crimes and cases in regards to these sites and has done a
comprehensive comparative study with other developed countries laws and regulations and
their implementations on social networking sites to protect the user.
Since their introduction, social networking sites like (Facebook), (Orkut) and (Twitter) offer members the ability to instantly
connect and communicate with other members; including friends, relatives, colleagues,
contacts, prospects and even the general public. These sites are otherwise called as social
media sites1. These social networking sites are essentially known as online communities of
personal and professional friends. These sites are increasingly attracting millions of users,
many of whom have integrated these sites into their daily practices. Now in this 21st century,
all these online communication sites have become more popular. Around 700 billion people
are members of these sites and they are visiting to these sites in their everyday life to
communicate or to share something with their friends, colleagues or any other person to
whom they want to share. More than 30 billion contents (such as articles, photos, links, news,
stories, blog posts etc.) are shared on Facebook every month, the average users are connected
to 80 or 90 community pages, groups, or events on Facebook, more than 150 million people
are accessing Facebook through their mobile devices every month 2. The same situation
applies also in Orkut and twitter where an individual can find out millions of users are



6 | Page

accessing. Now these sites have become the perfect spot for relaxing people by connecting
with them with their close friends, colleagues, relatives etc.
India is old country with young laws and the onset of Social Networking Sites in such a short
span was unprecedented and therefore its impact to the society was unforeseeable and not
manageable. India had faced a crisis due to lack of law till 2000; after which the Information
Technology Act, 2000 was passed. This Act was a specific Act made to deal with Cyberspace
but it fully couldnt resolve the issues in respects to crime in cyberspace as the Act mainly
focused on E-governance and E-business. After the recent amendments that took place the
present act is formed and is comparatively at a better position to deal with modern day
hazards of Social Networking Sites3.
These social networking sites create a virtual world with the opportunity for making friends,
chatting, sharing moments etc. there are variety of people on these sites, they are getting
freedom to categories them and choose them as their friend, as we do in our real life. But
there is a big difference we do not actually meet them. Nevertheless, these virtual friends
provide us a platform where we can without hesitation, can share our feelings, which
otherwise would have discussed face to face. Moreover, in this fast world, we do not have
time to meet someone by making some plans like where the place we will meet likewise.
Thats why within less time we can contact with someone in these sites and can share many
things. Also these sites breach the regional, national, cultural, social boundaries for making
friends, knowing them, understanding their cultures, traditions and also providing us the
opportunity for social synthesis 4. But we have to realize that these sites have their flaws. In
the past, we have heard of numerous abuses on these sites like morphing of photographs etc.
Also most of the information is put on the social networking sites can be and mostly fake,
concocted or half-truths. This way it adds negatively to socio-psychological behavior of
human being5.
2 Id, p. 7
3 Impact of social networking sites on social life,14th march,
4 Supra n.6
5 See this Social Networking sites and its legal implications in India; A comparative
study, October 2010<>

7 | Page

Thus, by way of the this thesis the researcher not only aims to educate people in regards to
the flaws and harmful impact of Social Networking Sites on society, but also to give them
insides and tips and truth in regards to their day to day networking on such sites, that to deal
with the complexities of the cyberspace laws exist and by way of cases and precedents that
what has previously happened and how those issues were solved by the current laws of India
in regards to the happening of events in India and abroad.


The inception of Social Networking Sites came with unprecedented boons and curses, the
likes of which the current legislations had never faced and consequently werent made to
handle. The initial impact of the boons short-lived as compared to its current existing curses;
As a result, there had arisen a lot of problems for which there existed no laws. The
Information Technology Act, 2000 was a recent piece of legislation which wasnt equipped to
deal with the modern day scenario of crimes in India. One of the main problems that the
researcher has primarily identified and focused his researched on is to explain and
substantiate with facts and cases that there is a need to understand the relationship between
the Real and Virtual World.
The next problem with regards to Social Networking Sites is that even after the recent
amendments in the Information Technology Act, 2000; there exists no laws to deal with the
labyrinth of problems that people face on day to day basis on these sites.
Another problem that the researcher has identified is that the people committing crimes on
the Internet and these sites are not aware that they are in fact committing a crime and they
believe that their acts in the cyberspace have no implications whatsoever.
And finally, that the need of the hour is to make new and amended legislations and setting up
of regulatory bodies to deal extensively in references to the crimes that are happening in the
cyberspace and punishing the guilty that are performing it and steps are needed to be taken as
these crimes wouldnt fall under the category of conventional crimes.


The current research and study is based on the following hypotheses:-

8 | Page

1. The laws are insufficient to deal with the new trends of crime emerging in the
2. The laws are insufficient to deal with the violation of rights pertaining to the privacy
of the individual.
3. The existing laws are not properly implemented to deal with cybercrimes.


In this research work, the Researcher endeavors to impart the knowledge and give the insight
to the masses on the following broad objectives:a.

To appraise the existing law on the regulation of internet.

To amend and incorporate new laws for gray areas.
To setup regulatory bodies for content regulation.
To setup complaint centers and courts for faster remedy of upcoming cases.

Any perception of this work would perhaps seem minuscule considering the fact that this
work has produced from a mere student of law, particularly in the light of the knowledge that
so many legal luminaries have deliberated on the matter since time immemorial.
The study due to incorporation of a number of restrictions like time and resources, deals
keeping in focus the Metropolitan Cities of India primarily Delhi, Mumbai and NCR regions
for the duration of 2000 to 2010 and primarily targets the population between the age group
of 16- 36 .
The study by putting forward its recommendations, most humbly, hopes to make a small
contribution in the field of legal reforms in India. The study also relates and incorporates
foreign legislations and policies of the United States that regulate internet.
The present work has been undertaken with guided intellectual inquisition based on organized
and systematic investigation by employing doctrinal research methodology.
The methodology followed by the Researcher in the present work has been undertaken with
guided intellectual inquisition based and organized and by systematic investigation by
employing purely doctrinal/non-empirical in nature. For the purpose of preparing this
Dissertation, the Researcher has relied on various books, statutes, articles, journals,

9 | Page

newspaper articles and other such literature. The Researcher has also relied on various case
laws to substantiate or refute his points as and when they arise.

This research work has been divided into five broad chapters. The First Chapter titled Social
Networking Sites- A Beginning covers the historical background of popular sites namely
Orkut, Facebook and Twitter, while explaining the basic functions, advantages, disadvantages
and legal issues that are faced by them.
The Second Chapter titled Statutory Framework covers the legislations which are required
to govern and deal with Social Networking Sites. Along with a comparison and clear
segregation of the legislations of India into two broad heads of Substantive and Procedural
The Third Chapter titled Challenges Encountered in Social Networking Sites deals with
various and new emerging cyber-crimes in India namely Cyber Defamation, Email Spoofing,
Cyber Stalking, Click-jacking, Cyber Terrorism, Grooming, Cyber Bullying and Publishing
Obscene Information in Electronic Form done through Social Networking Sites.
The Fourth Chapter titled Judicial Response analyses the role played by the Indian Judiciary
for the punishment of the criminal by using a purposive interpretation of the existing
legislative provisions.
Lastly, the Fifth Chapter titled Conclusions and Suggestions provides an essence of the
preceding discussion and the proposed suggestions to meet the future contingencies and
challenges in reference to Social Networking Sites.

10 | P a g e

Technology has made us a global community in the literal sense of the world. Whether we
are ready or not, mankind now has a completely integrated market place capable of moving
idea to any place on this planet in minutes. Information and idea will go where they are
wanted and stay where they are well treated. It will stay free from manipulation or onerous
regulation of its values or use and no government can restrain it for long.
-Walter B. Triston6
1.1. BACKDROP:Since, their introduction, Social Networking Sites (SNSs) such as Orkut, Facebook and
Twitter has attracted millions of users, many of whom have integrated these sites in their
daily life and practices. There exists hundreds of Social Networking Sites with various
technological affordances and supporting a wide range of interests and practices. While there
key technological features are fairly consistent. The cultures that emerge around Social
Networking Sites are varied and are different from site to site. Most sites support the
maintenance of pre-existing social networks, but others help strangers connect based on
shared interests, political views, or activities. Some sites cater to diverse audiences, while
others attract people based on common language or shared racial, sexual, religious, or
nationality-based identities. Sites also vary in the extent to which they incorporate new
information and communication tools, such as mobile connectivity, blogging, and
photo/video-sharing. Scholars from diverse fields have examined Social Networking Sites in
order to understand the practices, implications, culture, and meaning of the sites, as well as
the users' engaged with them.
6 Walter B. Triston , The Twilight of Sovereignty : How the IT Revolution is Transforming
our World, 10 WA Law Review, Volume 80 p.431

11 | P a g e

The current chapter is intended to identify the beginning of Social Networking Sites and for
understanding its functionality, advantages and disadvantages. A comparative study of these
sites has also been prepared; an attempt has also been made by the researcher to identify
points of legal references as well as areas of conflicts of rights.
Social network sites (hereinafter SNSs) are increasingly attracting the attention of academic
and industry researchers intrigued by their affordances and reach. Due to the internet, the
term society is not dependent upon a region as the dynamics of Net has connected the planet
as a whole and the cultures that emerge around SNSs are varied and diversified.
The purpose of this introduction is to provide a conceptual, historical, and scholarly context
to understand the basic dimensions of SNSs. The researcher aims to use the prominent sites
that are mainly used by the Indian population to connect with the society around them and in
furtherance of this statement also to establish prima facie that the need of the hour is to make
laws and regulations for the safety of society at large.In reference to the previous paragraphs 7,
to do so clear understandings of the concept of SNSs are required to be understood.
The definition of a Social Networking Sites is that, Social Networking Sites are web-based
services that allow individuals to

Create a Public or Semi-Public profile within a bounded system.

Articulate a list of other users with whom they share a connection.
View and traverse their list of connections and those made by others within that

The actuality of the reason that the researcher uses the term Social Network Site is to
describe the observable fact, that the term Social Networking Sites also appears in public
discourse, and the two terms are often used interchangeably. The researcher chose not to
employ the term Networking for two motives i.e. EMPHASIS and SCOPE. Networking
emphasizes a relationship initiation, and often among strangers wherein Networking is
possible on these sites, it is not the primary practice on many of them, nor is it what
differentiates them from other forms of computer-mediated communication (CMC).
7 Ibid.
8 Supra no.1 p.11
12 | P a g e

What makes these social network sites unique are that they allow users to articulate and make
visible their social networks with others and not that they allow individuals to meet strangers
and these results in connections between these individuals that would not otherwise normally
be made. And on many of the prominent sites the users are not necessarily Networking or
looking to meet new people whereas, they are primarily communicating with people who
they already know and they are in fact a part of their extended social network and due to this
critical organizing feature of these sites, They are termed as Social Network Sites.
Though SNSs have put into practice a wide variety of technical features but still their
backbone consists of visible profiles that not only displays an articulated list of friends who
are also users of the system but it also depends upon the users to make it a part of their daily
life and their returning back to the site as frequently as possible. A users PROFILE is a
unique page as it is personalized by him and for him and that profile is his identity on the site
and like every user every profile is different. The identity on the site and the functioning of an
individual on the SNS can be known only by his profile. Upon joining an SNS, an individual
is asked to fill out forms containing a series of questions and the profile is generated by the
answers to these questions, which typically include personal descriptors such as age, location,
interests, and an About Me section etc. The prominent sites also encourage users to upload
a profile photo for displaying on the profile. In the present day scenario, majority of the SNS
provide Privacy options for displaying information and the user can control as to what
information he would like to share with everyone, what he would like to share only with
friends and personalize his profile in terms of security and display as far as possible. SNSs
like Orkut, MySpace and Facebook allow its users to enhance the appearance of their profiles
by adding multimedia contents like songs and videos and by modifying the profiles look and
feel by their choices of colors. A pertinent reason that Facebook started slow and suddenly
shot to being a force to be reckoned with was that the ideology of Mark Zuckerberg was to
change from the traditional concept and move to the new era. Facebook was the first site that
allowed its user to add modules (APPLICATIONS) all sorts to make the site more addictive
and fun.9 An application called as Farmville which was added to the Facebook profile is one
such example. This application was launched in the June 2009 and after its presence it was
reported by London Today that users on Facebook come back three times a day only to play


13 | P a g e

the game and that Farmville Farmers are 10: 1 to the Real American Farmers. 10 These
additions are one of the primary reasons that SNSs really achieved a stand in the modern day
The visibility of a profile varies by site and according to user discretion. By default, profiles
on Orkut are crawled by search engines, making them visible to anyone, regardless of
whether or not the viewer has an account. Whereas, Facebook takes an alternative approach
and by default, allows users who are part of the same Network to view each others
profiles, unless a profile owner has decided to deny permission to the people in their network.
These structural distinctions are one of the reasons that SNSs differentiate themselves from
one another.
After making a profile on these SNSs, users are encouraged to identify others in the same
system with which they have or might have a relationship and to send invitations to those
who still arent in the system. The labels of these relationships differs from site to site, these
labels could be terms likes Friends, Contacts or Fans. The majority of the SNSs require
bi-directional or dual confirmation for Friendship i.e. both users have to acknowledge that
they know each other whereas some dont. These one-directional ties are labeled as Fans or
Followers as primarily seen in Twitter but various sites call these ties Friends as well.11
The public display of connections is a crucial component of SNSs as the list contains links to
other users profile and by this a user expands his network of Friends. On most sites, the
Friend List is visible to anyone who is permitted to view the profile by the user, although
there are some exceptions. For instance Facebook and Orkut allow users to opt out of
displaying their profiles.
Most of the SNSs provide a means for users to leave messages on their Friends profiles. This
feature usually involves leaving Scraps or Comments. In addition to this form of
communication many SNSs also have a private messaging feature similar to webmail or
messenger chat where both private messages and comments are made. Besides and beyond
Profiles, Friends, Comments and Private Messaging SNSs vary greatly in their features and
10 Gardner, J, Futurology: Farmville on Facebook, London Today, September 29,
2009, 8-9, p.10 <http: //>
11 Supra pp. 53-54
14 | P a g e

their user base. Some have photo-sharing or video-sharing competencies others have built-in
micro blogging and some have instant messaging technology. While SNSs are designed to be
widely accessible, so it is not rare to find groups using sites to segregate themselves by
nationality, age, educational level, or other factors.
1.3.1. ORKUT
Orkut is a Social Networking Site owned and operated by Google Inc. The portal service was
launched on January 22, 2004 and it was fashioned to help people of like nature and hobbies
to meet and to maintain existing relationships with friends and families a far. After the launch
Orkut was wildly popular in the United States but it fell short to its current day nemesiss
Facebook and MySpace. Although, it is extraordinarily popular in Brazil and India.12
Orkut was never brain project of Google. Inc as the company had the primary plans to buy
the social networking site Friendster but when the offer was extended to that company in
2003, they had refused the offer and as a result of which Google had internally hired Orkut
Bykkkten to prepare an independent project on the same lines and the result of which was
Facebook is a social networking service and website launched in February 2004, operated and
privately owned by Facebook, Inc.13 As of January 2011, Facebook has more than 600 million
active users.14 Users may create a personal profile, add other users as friends, and exchange
messages, including automatic notifications when they update their profile. Facebook was

12 Orkut Development Team, About and beyond, September 2009,

13 132008 Growth Puts Facebook in Better Position to Make Money Eldon, Eric
(December 18, 2008) Venture Beat.
14 Goldman to clients: Facebook has 600 million users. MSNBC January 5,
2011, <> (Assessed on 15th April 2011)
15 | P a g e

founded by Mark Zuckerberg with his college roommates and fellow computer science
students Eduardo Saverin, Dustin Moskovitz and Chris Hughes.15
Twitter is a social networking and micro blogging website based in California and owned by
Twitter, Inc. and was originally incorporated in California, but it has been incorporated in the
jurisdiction of Delaware since 2007.16 Twitter was created in March 2006 by Jack Dorsey and
the website has gained popularity worldwide and is estimated to have more than 200 million
active users, generating 65 million tweets a day and handling over 800,000 search queries per
Twitter enables users to send and read text-based posts composed of up to 140 characters,
called tweets, which are displayed on the user's profile page. Users can subscribe to other
users tweets this is known as following and subscribers are known as followers [or
tweeps.18 Users can tweet via the Twitter website, compatible external applications (such as
for Smartphone), or by Short Message Service (SMS).
Social Networking Sites were not less than a revolution upon their commencement. People
were so easily attracted because it made relationships reach another level. People could
connect virtually with everyone they knew instantly and could keep in touch and updated
about their friends and family regardless to their physical position on the planet. In India
15 At Last The Full Story Of How Facebook Was Founded, Business Insider
March 5, 2010 <> (Accessed on 15th April 2011)
16 Business Entity Detail, California Secretary of State18 February 2011
(Assessed on 14th April 2011) <>
17 Leslie D'Monte, Swine Flu's Tweet Causes Online Flutter, Business Standard,
29 April 2009 (Assessed on 15th April 2011) <>
18Twitter Developers, There's a List for That 30 October 2009 (Assessed on
15th April 2011) <>
16 | P a g e

there is a old story of two brothers who get lost in a Kumb Ka Mela and reunite after 14
years, this situation now would never happen as he could just look his brother on the net in
second. The perception has not entirely changed of how people connect and how they meet.
Sites like Facebook and Twitter not only hooked children but people from all various and
diverse age groups. Bollywood stars and icons like Barack Obama connect to their followers
by tweets and give their views and thoughts. These sites have made such an impression on the
young and the old that perception between the Real and Virtual world has now a very thin
line minuscule difference. To further address the requirement to structure and to indentify the
basic functionality of Social Networking Sites19 there are essentially six core areas that are
required to be looked at:1.4.1. KEEP IN TOUCH
As they are the primary ingredients of Social Networking Sites where keeping in touch can
be done by direct communication and indirect communication

The field of identity management can be segregated for presenting oneself to be found, to
build a common context. It means managing the availability of identity information i.e. filling
information and setting access rights that who has permission to view what.
Content Awareness simply means the common context with other people. This can be
awareness about anything like common contacts, common interests or common friends in the
school or college
This term covers and includes all information that one would need to maintain a functional
digital network such as tagging, restrictions on profiles etc.
19 Michael Koch., & Alexander Richter, Functions of Social Networking Services.
In: Proc. COOP 2008, Mai 2008, p.39
17 | P a g e

This term cover any and all forms of exchanging information directly like by messages or indirectly by photo albums via bulletin boards.
This term means the awareness of details of ones network and activities which results in
communication like by having knowledge of status of one individual by its news feed or
about information of his or her birthday by the birthday box.



The primary advantage of Social Networking Sites that one gets to meet new people and due
to the advance search option people of same interests can meet. Social Networking Sites are
now the chief source of establishing meaningful relationships and many people meet online
and establish relationships in real life and get married, have kids etc. 20 and


One more advantage of Social Networking Sites is that old friends, family members a far can
meet again and be connected once again and be in touch.
Another advantage of Social Networking Sites is that big companies have specialists in their
human resources that search these sites for new and prospective recruits. Sites like, and are the now the most popular sites to recruit
people and offer them jobs. Recently Facebook had offered final year IIT students a package
of 38 lakhs and 70 lakhs.21
20 Ibid.
21 Always Indian, Facebook hires 2 IIT students,, 6
December 2010 (Accessed on 15th April 2011)
18 | P a g e

The best aspect of Social Networking Sites are connecting and increasing ones networking
with clients at both a Personal and Professional level and it is definitely useful in the long
run. SNSs usually include a directory for members to find others sharing common interests
and backgrounds. Members build their individual networks by connecting with other
members22. Social networks often allow members to choose from different levels of privacy,
such as whether to allow any member of the network to see their profile content or to limit it
only to the connected members and may allow even further refinement of access control
within the connected community. Members often post non-original content to their profile
pages, such as photos and videos.
Due to its low cost it is perfect medium to maintain old clients while attracting and meeting
new potential clients and increase once business horizons.



Due to the global connectivity one of the most glaring disadvantages is that due to the lack of
anonymity a person would be target of identity theft and fraud from anybody in the world and
he wouldnt have any knowledge about it. 23 The personal information of any individual can
be used for any type illegal activity. The basic information like the e-mail, name, address,
location alone can be used for committing online crimes.
Due to the poor regulation of Social Networking Sites and due to semi-know ledged
individuals who dont know their way around the internet can be victims as their account and
information can be used to spread malicious humors and in some situations victims of virus
attacks and morphed pornographic pictures and videos.24
22 Ibid.
23 Ibid.
24 Infra, n.117
19 | P a g e

People on these sites have made them an inseparable part of their lives, be it their comments,
their pictures or playing their games 25; the addictiveness doesnt differ from a child to an
adult. Sites like Facebook generate record breaking traffic on the net. 26 This addictiveness is
leading to a lot of problems as young minds at the early stages of their minds have to involve
themselves in books rather than these sites. Offices and Institutions all over the world have
started blocking Orkut, Facebook and Twitter27 as their staffs and student dont concentrate on
the work allotted to them and keep themselves engaged in these sites.
1.7.1.In terms of business, members may use social networks for professional development to
supplement face-to-face networking, to describe business efforts and opportunities or seek
advice or opinions by asking questions to the social network community. Organizations may
utilize social networks to disseminate Press Release type information and may link back to
their own website for additional details. Promoting events on Facebook can result in more
rapid, widespread coverage than an organization could obtain anywhere else as notifications
are sent to all of a members friends when that member RSVPS for an event.
1.7.2. Companies may even use social networking to quickly respond to critics, such as
recent tweets (Twitter messages) by General Motors29 to help diffuse severe comments by
government officials and the media. An even more recent example is Dominos issuance of an

25 Ibid.
26 Adam Ostrow, Facebook Hits New Traffic 13 July 2010
(Assessed on 15th April 2011) <>
27 Curtis Smolar, 5 Reasons to Block Facebook and Twitter at Your Office 1
November 2010 (Assessed on 17thApril 2011)
28 Supra, n.125
29, it is not true,, 18 December 2009,
(Assessed on 16th April 2011) <>
20 | P a g e

apology on (YouTube) in reaction to an earlier video showing two North

Carolina based workers engaging in less than hygienic conduct while assembling pizzas.30
1.7.3.Social networking activities raise legal issues around content use and infringement,
defamation, attribution as well as good old-fashioned tort liability. Social networking sites are
also fertile ground for garnering evidence in criminal matters and for other investigatory


30 Don Smith, Sky News Dominos issues YouTube apology, November

2007(Assessed on 16th April 2011) <>
21 | P a g e

The controversy between those who believe that law should essentially follow and not lead
and it should do so clearly formulated social sentiment and those who believe that law
should be determined agent in the creation of new social norms is one of the recurring
themes in the history of legal thought
- Professor Wolfgang Friedmann31
New communication systems and digital technology have made dramatic changes in the way
we live and not only the way we live but the way people transact business. Business and
consumers are increasingly using computers to create, transmit and store information in the
electronic form instead of the traditional paper documents. Due to the lack of a legislation to
govern the business and connectivity of individuals the emergence of the Information
Technology Act, 2000 came into being. The act came into force on the 17th of October 2000
and it has 94 Sections and divided into 13 Chapters.
The Information Technology Act 2000(hereinafter, the Act) basically seeks to:1. Provide legal recognition for Electronic Commerce.
2. To facilitate electronic filing of documents with the Government Agencies.
3. Promote efficient delivery of Government Services by means of reliable electronic
4. To facilitate the proper regulation of internet.32
While the main objective of the Act is to provide legal recognition for transactions carried out
by means of electronic data interchange and other means of electronic communication, some
provisions are silent while some are likely to lead to litigation. Traditional legal systems have
had great difficulty in keeping pace with the rapid growth of the Internet and its impact
throughout the world. While some laws and objectives have been enacted and few cases have
been decided that affect the Internet, they leave most of the difficult legal issues to the courts.

31Friedmann, Wolfgang, Law in Changing Society, Wadsworth Publishing(First

Edn.) 1999, p.58
32Statement of objects and reasons Information Technology Act, 2000
22 | P a g e

However, due to the only act in existence in India to regulate cyberspace the act was not
equipped to deal with the new crimes that were emerging and needed an overall amendments
which took in 2009. The Act was now better equipped to deal with the new crimes.
For the purpose of explanation of the current chapter in this thesis, it is evident to point out
that even the current act is silence and faces dilemma in current day utilization but is
comparatively at a better position than the original Act.
In relation to the current topic of Social Networking Sites, the primary point to establish is
that the current Act is used to distinguish the class of crime that is committed by a person.
The Act is in existence as it distinguishes the Traditional Crime from Cyber Crime. This
Chapter aims to establish the Statutory Framework that is in existence to deal with the crimes
that one faces in Social Networking Site. To further clarify, the researcher would like to
segregate the chapter into two parts; one dealing with Substantive and the other with
Procedural laws.
Information Technology Act 2000.
While the main objective of the Act is to provide legal recognition for transactions carried out
by means of electronic data interchange and other means of electronic communication, some
provisions of the Act are likely to lead to legislation.
The Internet, like other path- breaking technological developments, gives us all the
opportunity to act as a global community; to advertise and operate across all frontiers, over
borders and beyond the control of any national government. But the intense volume of
information and the simplicity of its transfer cause problems. The aim of cyber (or cyberrelated) laws the world over is to harmonize the existing laws. The ultimate aim of such laws
should be reduction of costs or world trade by issuing out inconsistencies and uncertainties
resulting from differences in national (municipal) laws.
Traditional legal systems have had great difficulties in keeping pace with the rapid growth of
the Internet and its impact throughout the world. While some laws and objectives have been
enacted and a few cases have been decided that affect the Internet, they leave most of the
difficult legal issues to the courts and thus legislators provide an opportunity to provide
sufficient guidance in the matter to enable the users to engage in commerce on, or otherwise

23 | P a g e

take advantage of, the Internet in a manner that avoids or minimizes unexpected
consequences or liabilities.
It is pertinent to mention that The Information Technology Act, 2000 is Indias mother
legislation regulating the use of computers, computer systems and computer networks as also
data and information in the electronic format. The said legislation has provided for the
legality of the electronic format as well as electronic contracts. This legislation has touched
varied aspects pertaining to electronic authentication, digital signatures, cybercrimes and
liability of network service providers. From 17th October, 2000, when the IT Act, 2000 came
into implementation till date, the said legislation has seen some very interesting cases and
challenges, being brought within its ambit. As time passed by, the inadequacies of the said
legislation came to the forefront. There were various practical difficulties in the
implementation of the said legislation. The inadequacy of the IT Act, 2000 to address some of
the emerging phenomena, challenges and cybercrimes, led to voices clamoring for change in
the Indian cyber law.33
Consequently, the Government of India tabled the Information Technology Amendment Bill,
2006 before both the houses of Parliament in December, 2006, which referred the said
amendment bill to the Parliamentary Standing Committee on Information Technology. The
Parliamentary Standing Committee examined the proposed amendments in a comprehensive
manner and thereafter gave its report and recommendations thereon. The Parliamentary
Standing Committee on Information Technology headed by Shri Nikhil Kumar, MP did an
excellent job in terms of producing its exhaustive recommendations. These recommendations
were noteworthy for their fore vision and clarity of thought process and after examining the
said recommendations, the Central Government brought the Information Technology
Amendment Bill, 2008 in Parliament, which got passed by both the houses of Parliament.
Though given the magnitude of the amendments, it was strange and amazing that this Bill
was passed in an unprecedented hurry, without any discussion in both the houses of the
Parliament in the last week of December, 2008. Due credit needs to be given to the
government, for removing the various practical difficulties of the IT Act, 2000.

33 See there:- Pavan Duggal, Cyber Law The Indian Perspective, December
2009 (Assessed on 14th April 2011) <>
24 | P a g e

The present Act is the primary act to deal with the concept of Cyberspace in India. The Act
not only deals with the Electronic Commerce but it also deals with the Penalties of Cyber
Crimes, Jurisdiction and Establishment of Certifying Authorities. The relevant sections to be
understood the governing are:1.1.1. EXTENT AND JURISDICTION OF THE IT ACT.
The IT Act amendments do not address jurisdictional issues and especially at a time when the
Internet has made geography history, it was expected that the new amendments would throw
far more clarity on complicated issues pertaining to jurisdiction 34. This is because numerous
activities on the internet take place in different jurisdictions and that there is a need for
enabling the Indian authorities to assume enabling jurisdiction over data and information
impacting India, in a more comprehensive way than in the manner as sketchily provided
under the current law.35
To understand the extent and jurisdiction of the IT Act, Sections 1(2) and Section 75 of the
Act are needed to be understood.
Section 1 (2) of the IT Act
(2) It shall extend to the whole of India and save as otherwise provided in this Act, it
applies also to any offence or contravention thereunder committed outside India by any
Section 75 of the IT Act
Act to apply for offence or contravention committed outside India.
1. Subject to the provision of sub-section (2), the provisions of this Act shall apply also to
any offence or contravention committed outside India by any person irrespective of his
2. For the purpose of sub-section (1), this Act shall apply to an offence or contravention
committed outside India by any person if the act or conduct constituting the offence or

34 Ibid.
35 Indian Computer Emergency Response Team, Accessing Jurisdiction in Indian
Cyberspace and beyond , March,2010) <>
25 | P a g e

contravention involves a computer, computer system or computer network located in

Not only does the IT Act apply to the whole of India, but also to contraventions committed
outside India by anyone, involving a computer located in India. However, there are
exceptions to the term any person and certain persons are exempt from prosecution under
the IT Act. These include the President of India and the Governors of Indian states36, Foreign
Heads of State and Ambassadors of foreign countries37.
Besides the above mentioned provisions of the Information Technology Act 2000,
establishing jurisdiction is necessity which faces a lot of issues. Some provisions as a result
have likelihood to lead to litigation. In case of Section 74, this Section of the Act will apply to
an offence or contravention committed outside India by any person irrespective of his
nationality, if the act or conduct constituting the offence or contravention involves a
computer, computer system or computer network in India. However, it is not going to be easy
as it sounds to acquire jurisdiction in such a case. If a foreign country is the scene of the
crime and the criminal is not even an Indian citizen, and a computer system in India has been
utilized in some way or other or in connection with the crime by a hacker based in a foreign
country, there can be no dispute about Indias right to reach him and make him accountable
for the crime committed alone in India.
In reference to the above paragraphs and regard to the applicability of the Act under Section
75, the nationality of the accused is not relevant if the act or conduct constituting the offence
or contravention involves a computer, computer network or computer system located in India.
This confers extra- territorial jurisdiction on Indian courts. In this way courts in India can
take cognizance of an offence committed outside India even by foreign nationals. The most
important aspect is to bring the criminal who is a goring national for being tried in Indias
This means that the extradition and principles of International Law would also come into
play. Although the UNICITRAL Law envisages upon a homogenous legislation worldwide
for the adopting nations, it failed to prescribe the extradition under the model law.
The principle of lex fori is applicable with full force in all mattes of procedure. No rule of
procedure of foreign law is recognized. It was held in Ramanathan Chettier v. Soma
26 | P a g e

Sunderam Chettier38, that India accepts the well-established principle of private international
law that the law of the forum in which the legal proceedings are instituted governs all matters
of procedure. In India, the law of personal jurisdiction is governed by the Code of Civil
Procedure, 1908. The Code does not lay any separate set of rules for jurisdiction in case of
international private disputes. It incorporates specific provisions for meeting the requirements
of serving the procedure beyond territorial limits. In matter of jurisdiction what is treated
differently is the question of subject-matter competence and not of territorial competence, i.e.
the question of territorial jurisdiction arises in the same way in an international private
dispute as in a domestic dispute.39
The Code provides general provisions regarding jurisdiction on the basis of pecuniary limit,
subject matter and territory. Sections 16 to 20 of the Code regulate the issue of territorial
jurisdiction for institution of suits.
In the present scenario where the cyber-crimes are increasing to an alarming extent, the
present need of the hour is to have broad based convention dealing with criminal substantive
law matters, criminal procedural questions as well as with international criminal law
procedures and agreements. The IT Act 2000 would be crippled without proper means and
ways of implementing it. To overcome the difficulties, necessary amendments must be made
to The Code of Criminal Procedure, 1973. Moreover, it is important to note that India at
present does not have a proper extradition law to deal with crimes that have been committed
over the Internet. To address this issue, India should become a signatory to the Convention of
cyber-crimes treaty and should ratify it40. This move would go a great deal in resolving the
jurisdictional controversies that may arise in cyber-crime cases. Furthermore, the setting up
of special courts, Cyber Infringements Courts to replace the Adjudication Officer under the
IT Act would also be a progressive step as it is the need of the hour.
1.1.3. Indications
In order to support personal jurisdiction in cyberspace the courts now require that defendants
should have more than mere accessibility to a website. Some sort of interaction is required.
The trend appears to be that information providers must comply with the limitations of the
laws wherever the user is located, or find themselves subject to the user is located , or find
themselves subject to the users state jurisdiction, and its civil and criminal laws41. Case law
indicates that the courts are inclined to expect the information provider to determine where

27 | P a g e

the user is located and to block access to their site if access would be illegal in the users
After its notification in the official gazette, Information Technology Amendment Act, 2008
finally came into force on October 27, 2009. Under the Information Technology Act, 2000
intermediary was defined, as any person, who on behalf of another person, receives, stores
or transmits that message or provides any service with respect to that message. However, the
Information Technology Amendment Act has clarified the definition Intermediary by
specifically including the telecom services providers, network providers, internet service
providers, web-hosting service providers in the definition of intermediaries thereby removing
any doubts. Furthermore, search engines, online payment sites, online-auction sites, online
market places and cyber cafs are also included in the definition of the intermediary
However, Section 7943 deals with the immunity of the intermediaries. Section 79 of the old
Act (IT Act 2000) was vaguely drafted and was considered harsh on the intermediaries. One
such example is the case of Baazee.com44. Under the old Act, intermediaries were exempted
only to the extent if they proved that they had no knowledge of the infringement or they had
exercised all due diligence to prevent such infringement or offence. This kind of approach
made websites liable if constructive knowledge was proved or it lacked sufficient measures to
prevent such infringement. It is virtually impossible for any website, having medium traffic,
to monitor its contents and involves cost implications as well. This draconian approach led to
the amendment of the Information Technology Act 2000. Under the Information Technology
Amendment Act, 2008, Section 79 has been modified to the effect that an intermediary shall
not be liable for any third party information data or communication link made available or
hosted by him45. This is however subject to following conditions:
1. 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;
2. The intermediary does not initiate the transmission or select the receiver of the
transmission and select or modify the information contained in the transmission;
3. The intermediary observes due diligence while discharging his duties.
As a result of this provision, social networking sites like Facebook, Twitter and Orkut would
be immune from liability as long as they satisfy the conditions provided under the section.
28 | P a g e

Similarly, Internet Service Providers (ISP), blogging sites, etc. would also be exempt from
However, an intermediary would lose this immunity, if the intermediary has conspired or
abetted or aided or induced whether by threats or promise or otherwise in the commission of
the unlawful act. Sections 79 also introduced the concept of notice and take down provision
as prevalent in many foreign jurisdictions47. It provides that an intermediary would lose its
immunity if upon receiving actual knowledge or on being notified that any information, data
or communication link residing in or connected to a computer resource controlled by it is
being used to commit an unlawful act and it fails to expeditiously remove or disable access to
that material.48
Even though the intermediaries are given immunity under Section 79, they could still be held
liable under Section 72A49 for disclosure of personal information of any person where such
disclosure is without consent and is with intent to cause wrongful loss or wrongful gain or in
breach of a lawful contract. This provision introduced under IT Amendment Act, 2008, is
aimed at protection of privacy and personal information of a person.
But, the most controversial portion of the IT Amendment Act 2008 is the proviso that has
been added to Section 81 which states that the provisions of the Act shall have overriding
effect. The proviso states that nothing contained in the Act shall restrict any person from
exercising any right conferred under the Copyright Act, 1957 and the Patents Act, 1970. This
provision has created a lot of confusion as to the extent of liability provided under section
79.Section 79 under IT Amendment Act is purported to be a safe harbor provision modeled
on the EU Directive 2000/3150. However, Information Technology Amendment Act 2008 left
a lot to be desired. Both EU and USA provide specific exclusion to internet service providers
under the respective legislations. In order to clarify the issue and put the controversy to rest,
Indian legislators need to insert a similar provision proving immunity to ISP in the Copyright
Act, 1957.
It is remarkable to note that even auction sites, search engines and cyber cafe s fall within
definition of Intermediaries. There is no parallel legislation in the world which provides
immunity to such a wide range of intermediaries. Nevertheless, Information Technology
Amendment Act 2008 makes a genuine effort to provide immunity to the intermediaries but
has failed to achieve its objective due to lose drafting of few provisions. Indian Legislators

29 | P a g e

need to plug in these gaps and provide indispensable immunity to the ISPs to enable them to
operate in India without any fear and inhibitions.

Indian Penal Code:The Indian Penal Code (hereafter IPC), extends to the whole of India except the State of
Jammu and Kashmir. It contains 23 Chapters with 511 Sections. IPC applies to every person
including a foreigner for any violation committed in India. Under some circumstances, IPC
also applies to offences committed abroad.
After the introduction of Information Technology Act, 2000 many amendments took place in
the IPC as well. The most important amendment that was done was the substitution of the
word document for the words document or electronic record which had several cybercrimes within the ambit of the Penal code. E.g.

Wrongful translation of an electronic record by a public servant.

Avoiding delivering an electronic record in court.
Destroying electronic evidence.
Forging electronic records. Etc.

In relation to the present topic, IPC is used essentially in three references.

Reference One: A fake profile of a woman is created on as social networking site. The profile displays her
correct name and contact information (such as address, residential phone No. etc).
Sometimes even her photograph, the problem is that the profile describes her as a prostitute
or a woman of Loose Character who wants to have sexual relations with anyone. Other
members see this profile and start calling her at all hours of the day asking for sexual favors,
this leads to a lot of harassment for the victim and also defames her.
As Per Old IT Act

Section 67


Section 509


of IT Act and

As Per Amended IT

Usual Motives


Jealousy or Revenge


Section 66A , 67 of IT Act

of IPC

30 | P a g e

Reference 2
An online hate community is created this community displays objectionable information
against a particular country, religious or ethnic group or even national leaders and historical
As Per Old IT Act


Section 153A and 153B


As Per Amended IT

Section 66A


of IT Act and

Usual Motives

Desire to cause Ratial Hatred

Section 153A and 153B of


Reference 3
A fake profile of a man is created on Orkut. The profile contains defamatory information
about the victim, such as his alleged sexual weakness, alleged immoral character Etc).
As Per Old IT Act

Section 500


of IPC

As Per Amended IT

Section 66A of IT Act and

Section 500 of IPC

Usual Motives


The issues of fake websites i.e. Phishing and fake emails (email spoofing) are also addressed
by the IPC.60

Procedural Laws:-

2.1. Indian Evidence Act

Indian Evidence Act establishes the rules to be followed in producing evidence in a court of
law. The nature of electronic evidence is such that in almost all cases where any electronic
31 | P a g e

record is to be produced as evidence, it will actually be a copy of the original record that will
be exhibited and not the original.
Keeping in mind the peculiarities of digital evidence, Indian Evidence Act was amended by
the IT Act after the incorporation of the new amendments.61
The most important amendment was the introduction of Section 65B62 which relates to the
admissibility of electronic records as evidence. This section lays down several conditions that
must be met before electronic information can be accepted as evidence. This also provides for
validation of computer output such as printouts, CDs, hard disks etc.

Code of Criminal Procedure

2.2.1. The Code of Criminal Procedure , (CrPC) is essentially a law of procedure and covers
the following relevant issues:i.

Procedure to be followed for the filing of criminal complaints.

Procedure to be followed by the police for investigation.
Procedure to be followed for the conviction of offenders.
Search and seizure operations.
Confiscation of computers etc.
Hierarchy of Courts in India.
Sentences that various Courts can pass.
Summons and Warrants.
Appeals, reference and reviews of judgment and Court orders.
Bail and Bonds.

2.2.2. Besides the above mentioned steps CrPC also explains the steps and procedures
mentioned for Investigation and Trial of Criminal cases and are as the following:

The complaint approaches the local police station to file a complaint.

The police listen to the facts disclosed by the complaint. If the facts disclose a noncognizable offence then the police make an entry in a special register for non-


cognizable complaints. This register is regularly submitted to the local magistrate.

If the facts disclose a cognizable offence then an FIR is lodged. The FIR is numbered,
dated and a copy is given to the complainant. A copy is also submitted to the local


The police then begin the investigation. They may visit the scene of the crime,


question witnesses and suspects etc.

A person being questioned by the police is legally bound to give true answers.

32 | P a g e

Exception: A person is not legally bound to answer a question if the answer can incriminate
him. This exception is provided by Section 161 of CrPC63. The Right against Self
Incrimination is vested by the Constitution of India64.

The police can write down the statements made by the witnesses, suspects etc. The


person making the statement is not required to sign it.

The police cannot threaten a person into making any statement.
The police can search any house, office and other premises and seize evidence. They
do not need a search warrant for this.


If some evidence is to be collected from abroad, the court can make an order which is
then forwarded by the Central Government to the suitable authority in the relevant


The police can arrest and confine a suspect. The freedom of an arrested person is
restricted by the police. The police are empowered to use force if a person attempts to
evade arrest. An arrested person must be informed about the grounds for his arrest.


The police can search the arrested person and recover evidence.


The arrested person must be produced before a Court within 24 hours of his arrest.
The Court can then do one of the following:
a. Release the arrested person on bail.
b. Send the arrested person into the custody of the police so that the police can
carry out their investigation.
c. Send the arrested person to jail.


After completing the investigation, the police are required to submit their report and
relevant documents to the Court.


After studying the investigation report, the Court can dismiss the complaint if there
are insufficient grounds against the accused persons.


If there are sufficient grounds to proceed against the accused, the Court can take
cognizance of the case and frame charges against the accused.


If the accused person pleads guilty to the charges then the court can convict him under
the relevant law and impose sufficient imprisonment term or fine or both as the case
may be.


If the accused person does not plead guilty to the charges, the trial takes place. The
prosecution and the defence argue the case, examine witnesses and take place
evidence before the court.
33 | P a g e


If scientific reports are provided as evidence, then the Court can call the scientific
expert to Court to examine him.
After hearing the arguments, the Court gives the judgment. If the accused is found
guilty then the Court can convict him under the relevant law and impose sufficient
imprisonment term or fine or both as the case be. The convicted person can appeal to
a higher court against this judgment.
xx. If the accused is found not guilty then the Court can acquit him. The Court can also
order the complainant to pay compensation if the case appears to be frivolous.

Once a person has been tried by a Court, he cannot be prosecuted again for the

same offence or for another offence based on the same facts. It does not matter
whether the person was convicted or acquitted.

34 | P a g e