About the Author
Midhuna M S is a 4th Semester BA LLB student at Government Law College Thiruvananthapuram
Question
If information is given by a woman to the police that her photograph is being propagated in
a manner of affecting her reasonable privacy through social media can any action can be taken against the service provider or any person in charge of a public place to prevent such an occurrence.
Answer
In cases where someone’s privacy is being infringed upon through the dissemination of their
photograph on social media without their consent, legal action can potentially be taken against the individuals responsible for posting the photo. Social media service providers also will be held liable under certain circumstances. The woman could file a complaint with the police, who could investigate the matter further. Additionally, depending on the jurisdiction and specific circumstances, the woman may have grounds to pursue civil action against both the individuals and the service provider for damages or to seek an injunction to prevent further dissemination of the photograph. Information Technology Act 2000 protects the digital privacy of Indian citizens. The Act also stated that any person or entity illegally accessing a computer, database, or computer network will be liable for civil, and criminal proceedings. The act also said that the breach of personal data would result in the imposition of a penalty.
Section 66E IT Act provides for punishment for violation of privacy. Whoever, intentionally or knowingly captures, publishes, or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person shall be punished with imprisonment which may extend to three years, or with a fine not exceeding two lakh rupees, or with both. Section 67 and Section 67A prohibit the transmission of obscene and sexually explicit material online and provide punishment of imprisonment for five years with a fine of up to ten lakhs on the first conviction and imprisonment for seven years with a fine of ten lakhs on the subsequent conviction.
Who is a service provider?
It is an internet service provider (ISP).ISP is an entity that connects people to the internet and
provides other allied services such as website building and hosting. An ISP has the equipment
and the telecommunication line access required to have a point of presence on the internet for the geographic area served.
Liability of ISPs may arise in a variety of legal fields such as tort law, criminal law, copyright
law, trademark law, etc. In India, the provisions relating to ISPs are specifically legislated in the IT Act,2000 where an internet service provider is referred to as a Network Service provider, and explanation (a) to section 79 defines it as: “Network service provider” means an intermediary. intermediary again has been defined under section 2(w) as “any person who on
behalf of another person receives Stores or transmits that message or provides any service with respect to that message.
Network Service Provider not to be liable in certain cases
No person providing any service as a network service provider shall be liable under this
Act, rules, or regulations made there under for any third-party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Section 79 of The Act also provides two circumstances under which an ISP can qualify for exemption from liability. Lack of knowledge and exercise of due diligence are the two exemptions.
Lack of knowledge
Knowledge of the illegal contents on the part of ISP is a prerequisite for holding him liable under section 79 of the IT Act. The ISP can escape liability if it can be proved that he was unaware of all that was stored and passed through his servers. But if he is put under notice that some infringing material is either stored or passed through his server, he has to take proper action for removing or disabling that material otherwise, he could be said to have knowledge of the infringing material and held liable.
Due diligence
For an ISP to escape liability, section 79 prescribes ‘due diligence ‘to be exercised by him. The
provision requires actual knowledge or breach of duty of care. It is impossible to monitor
and judge the legality of millions of files that are present or passing through their servers. But if we say that ISPs should not be under an obligation for due diligence, it might encourage them to consciously ‘look away’ and evade liability. It can be safely concluded that ISPs are not liable for infringing gigabytes that are stored and passed through their servers unless they are put on notice. If an ISP encounters particularly suspicious circumstances, he may be subject to due diligence, ie, a duty of care to investigate further whether material he hosts or refers to us
unlawful and where found to be so, to block access.
Reasonable privacy
Reasonable privacy for women in Indian laws typically encompasses protection against unauthorized access to personal information, prevention of stalking or harassment,
safeguarding against voyeurism, and ensuring confidentiality in sensitive matters such as
healthcare and personal relationships. It also includes the right to make decisions about one’s
body and reproductive health without interference. In the case Justice K.S. Puttaswamy (Retd)
vs Union of India (2017),The Honourable Supreme Court of India expanded the purview of
Article 21 said that the Right to Life and Liberty, as stated in Article 21, also included the
right to privacy. However, the interpretation and application of what constitutes “reasonable”
privacy can vary depending on the context and specific circumstances of each case. Rout v. State of Odisha (2020), The High Court of Odisha, through Justice S.K. Panigrahi observed that
the right to be forgotten is in sync with the right to privacy. Every victim has the right to get
materials removed from the internet through an approaching court that is against her dignity and reputation. In this case, the accused forcibly committed sexual intercourse with his classmate recorded the incident, and uploaded it to Facebook with a fake ID of the victim. After being caught by the police, he deleted the videos. The court, while rejecting his bail plea, observed that the victim or the prosecution may approach the court for proper order to the intermediary to remove the objectionable content from their database.
Conclusion
If any photographs, videos or any electronic documents are being propagated in a manner
affecting the reasonable privacy of a woman through social media, she can file a complaint against the person who posted it on social media. She can either claim for compensation or for punishing the wrongdoer. She can also file a complaint against the service provider. However, service providers’ liability has some exemptions which are mentioned under section 79 of the IT Act. Certain provisions of the Copyright Act 1957 could be also used to determine the liability of the ISPs for copyright violation. For content owners, it is practical to sue the ISPs as they are in a position of policing the internet
(Question from Munsiff Magistrate Main exam 2022 paper)
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