hiddenApr 20, 2017 15:06:29 IST
By Asheeta Regidi
Facebook Live, Periscope and Instagram have enabled a new form of communication — live streaming. Though intended as a fun way to communicate with the world in real time, its misuse has quickly risen through the live streaming of criminal activities. The Cleveland murder case which was livestreamed on Facebook, where Steve Stephens filmed himself randomly selecting and shooting his victim, brought the focus on livestreaming violence.
Increasing instances of such livestreaming have led to a number of questions, particularly on who is responsible for the upload of such content Existing laws on live broadcasts have no applicability to the internet, and internet laws are also inadequate.
No responsibility under Intermediary law
Social media companies have no liability towards such content under intermediary laws around the world. Section 79 of the Information Technology Act, 2000 clearly states that intermediaries have no liability towards any content put up by third parties. This extends to livestreaming videos, even illegal content. Their obligation is restricted to removing the illegal content on being informed of it.
Laws on live broadcasts don’t apply to the internet
Live broadcasts, until now, were possible only through mediums like television and radio. These mediums are subject to strict regulations as to what they can and cannot air. For example, under Rule 6 of the Cable Television Network Rules (PDF), 1994, no programme (which includes live broadcasts) on cable television should contain matter which offends decency, is anti-religious, incites violence, is defamatory, etc. Advertisers are also subject to similar restrictions under Rule 7 of the same rules.
Non-compliance with these rules leads to punishments which includes suspension of the channel, imprisonment, fine, etc. For example, under the Policy Guidelines for Uplinking of TV Channels (PDF), a channel disseminating objectionable content can lose permission to uplink for 5 years. Under the Guidelines for Obtaining License for Providing DTH Broadcasting Services (PDF), transmission of such content can attract termination of the license.
The application of these regulations, however, is very specific to the mode of publication — such as to Prasar Bharati, cable TV, DTH or radio. A general regulation covering live broadcasts in any form including the internet is missing.
Positive and negative impact of unrestricted live broadcasts
The reason for the restrictions on live broadcasts on TV is clear, for the protection of people from objectionable content. The internet broadcasts, however, present a new dilemma. The laws are clearly not equipped to deal with live internet broadcasts, and social media companies have enabled what television networks can do, without the restrictions that normally apply to them.
This has seen the easy broadcast of not only crimes being committed, but also inflammatory speech, terrorist propaganda and so on. For example, the Cable Television Network Rules, 1994, prohibits the airing of anti-terrorist operations of the armed forces. This can easily be made possible through live streaming. A new danger of livestreaming is the likes and supportive comments, which also act to encourage the crime, for instance, in one case a woman on livestream was encouraged by viewers to commit suicide, which she did.
At the same time, the unrestricted broadcasts also have major benefits, such as the use of the live streaming to broadcast atrocities by officials. The famous example of this is the live broadcast by the victim’s girlfriend of the aftermath of a police official shooting Philando Castille, while he was sitting unarmed in his car. The video, without doubt, provided strong evidence in support of the victim’s girlfriend’s statement. The recent incident of the video of the army tying a person to a jeep in J&K is another such example. The instant livestreaming also draws attention to such atrocities, which are often hushed up.
Persons live streaming, liking and commenting are liable
The lack of live broadcast laws does not mean that the livestreaming of crimes is legal. Since social media companies have no liability towards the livestreamed content, the liability falls solely on the person livestreaming.
The livestreaming of crimes like rape, sexual assault and voyeurism can be punished under various sections of the IPC and the IT Act. However, other crimes like the livestreaming of murder and torture are missing under these laws. The result is that persons livestreaming such crimes may not be punished for the act of livestreaming itself.
However, they will be punishable depending on the role they played. For example, w.r.t the livestream of the murders, the persons are certainly liable for murder under the Indian Penal Code, 1860. In the incident of a rape being livestreamed by the victim’s friend, the friend may be liable for abetment of rape. Viewers who like and comment encouraging the crime, may also be liable for abetment of the act.
Social media companies dealing with the crime
Facebook Live, Periscope, etc., on their part have published detailed Community Guidelines, outlining the restrictions. They have also provided people with the ability to report illegal content, and are said to take action to remove content within 24 hours.
However, the consequences for people violating these guidelines is often little more than having the illegal content removed, and having the person’s account suspended. The person simply has to delete his livestreamed video to erase evidence of the illegal act. Deleting his account further prevents investigations. Such companies have also shown reluctance in cooperating with investigations due to privacy concerns, even in the presence of an official court order asking them to do so.
These companies also absolve themselves of all responsibility towards such content through their terms of service, in keeping with the intermediary laws.
Need for live broadcasting laws
While it is true that social media companies are not publishers like newspapers and television, they are also enabling communication which was previously not possible. Moreover, the only control that can be exercised over the livestreaming is by the social media companies.
To prevent misuse, some amount of accountability needs to be imposed on social media companies. Stricter legal requirements of due diligence and timely removal, and better cooperation with investigations are required. Social media presents two conflicting demands — to preserve the right to speech, and to tackle crime. A balance needs to be found between both.
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject
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