Off late several companies had become extremely concerned for moonlighting by their employees. Moonlighting is a term that signifies involving in a second job for profit while being in a full time employment. The 2020 covid pandemic has increased the tendency for moonlighting for employees in several companies including the tech companies as most of the workplaces reduced the salaries of employees and this caused huge financial tension for many. Legally moonlighting may or may not be safe for many: many European countries, US, Canada, Australia etc, may allow employees for moonlighting. Even academicians including teachers, university professors may also choose for a second job when they are off duty. But the problem arises when the employees go for moonlighting with the company data.
Why and how Moonlighting becomes an offence and who are the victims? in 2022, Tesla terminated an employee for showcasing and discussing certain automobile features in his YouTube channel. Interestingly running a YouTube channel had not been considered as moonlighting even though such activities may help the YouTuber to earn profit. But this was considered as offensive by the company because the employee actually criticised certain products using the company data which only he could access being an employee. Now consider the other side of the coin: if this employee had secretly sold the company data to other competing company for profit or may had been engaged in moonlighting works like consumer preference analysis, product marketability analysis, business analysis or even employee data analysis with the help of the confidential data of his employer company, he would have been definitely subjected for legal liabilities and he may even have the chance for being jailed. This may no longer remain simple harmless moonlighting. Rather, it may involve data privacy breach by the concerned employee because he may have violated the integrity and confidentiality of the data owned and maintained by the companies.
Here we have to understand the types of the data and the types of the ‘victims’ that may be affected:
First victim would be the company itself as the company secrets including trade secrets would be affected. The designs, company logo, manufacturing process, company policies for marketing, specific software etc, may fall within the meaning of company’s intellectual properties which many employees fail to acknowledge or may not know.
The second typology of the victims has a wider scope than the first: it includes individuals and their personal data that may have been collected by the companies in the name of customer data, patient data, government beneficiary data, banking related data etc. Presently almost all companies have become body corporates who collect certain kinds of personal as well as sensitive persona data: Tesla itself collects customer data that may include sensitive personal data like birthdates, banking information, social security numbers etc. There are several big tech companies that may be involved directly or indirectly involved in government data collection and processing work.
Moonlighting with such data may become extremely dangerous for the second type of the victims, especially children. There are 5 basic reasons for this:
Children’s data including health data, school data, parent’s financial data etc, may be misused by different types of perpetrators. This may also aide in physical space kidnapping, abduction and assault on the child.
Profiles of children may be sold to criminal gangs operating in deep and dark nets for online child sexual abuse related purposes. Often job seekers or individuals looking for moonlighting opportunities may fall in the trap of such gangs who may make them sell such sensitive personal data for a handsome amount. Here the criminal gangs may finely create a very much convincing agreement for the job seekers that in reality may not have much legal value as employer-employee contract. But the language of such agreements may be so finely constructed that it may actually make the employee fall in legal trouble if the entire operation is unearthed by the law enforcement agencies while the actual criminals may escape the clutches of the law.
Child and adolescent victims may not be aware of the victimhood unless they are made aware of the data breach by their peers or by the acquaintances of their parents. Resultant, their online and offline security may be hugely breached and it may be beyond repairing especially for children who may come from socio-economically challenged backgrounds.
Such kind of illegal moonlighting may enlarge the risks of ransom attacks for hospital, schools, public welfare data etc.
Companies or stakeholders who are engaged in the outsourced work of data collection, processing may also have to face legal action for not providing proper security to the confidential data. In such cases these cases may be held primarily liable as the burden of proof for innocence and strict diligence complied with may fall on the companies.
What is the way out then? EU General Data Protection Regulation has emphasised on the issue of privacy, security and consent for data collection, data processing, data archiving etc. Even though EUGDPR does not mention about moonlighting with confidential data as an offensive behaviour, it however focuses on right to privacy, data collection and processing rules etc. We also have to look into several international conventions including the 2001 Budapest cybercrime conventions which throws light on content related online crimes, intellectual property rights related crimes and online child abuse related issues. All these prohibit data theft and unethical profit gain from misuse of data. Moonlighting with public, personal and sensitive confidential personal data falls off from the line of ethical moonlighting on the basis of skills of the job seeker/employee and thereby it becomes a punishable offence. But we must note that moonlighting with data involving children can be extremely dangerous because immediate harm to children may not be repaired by restorative and reparative justice quickly. But there is still a silver lining behind the vicious cloud of malicious data and activities. Companies and body corporates who primarily deal with public and personal data of general individuals can strengthen their data protection mechanism by applying stricter surveillance on the access on the said data, purpose of access to such data and mapping footprints of the usage of such data. They may also apply stricter policies against moonlighting especially against those employees who may directly deal with confidential data. Further, punishment for such kinds of moonlighting may not be restricted to termination and other penal actions by the primary companies alone. Such employee must also be made liable for breaching the data confidentiality of the children and he must be made to cooperate with the criminal justice machinery to track the data, pull down the data from vicious domains and also should be responsible for payment of compensation. Above all, courts must also consider banning them from using multiple profiles and they must be put under surveillance for their usage of information and communication technology.
Derbyshire Police community security officer who was in charge for safeguarding children from cyber crimes gets 27 months sentence from Derby Crown court for filming, possesing and unauthorized distribution of images of children in the changing rooms. https://www.bbc.com/news/uk-england-derbyshire-61645416
We are facing challenge of Covid-19 restrictions. A whole generation is facing another unique challenge. Many senior citizens and people from socio-backward classes and communities are unable to exercise their basic right to life because they may be unable to use the electronic payment mechanisms.
By the end of 1990’s electronic commerce started getting popularity and almost by the first half of the millennium, banks of several countries had expanded their services for electronic money transactions. Soon plastic money in the forms of ATM, credit, debit cards etc., were introduced and the smart generation started relying more on plastic money rather than carrying currency in their wallets. But this proved dangerous for majority. There were physical theft of wallets and the cards, misuse of the cards, hacking of e banking systems which directly affected the card operating systems, ATM machines were unauthorizedly accessed, spycams were installed in the machines to detect the banking information including the passwords etc. Senior citizens were worst affected as most of them in countries like India could not operate the e-banking system or the cards: either they could not understand the operational mechanisms or they were not physically able to conduct the entire transactions either through the ATMs, or through their smart devices. This was due to generation gap.
With the advancement of technology, e wallets were introduced. Through online banking mechanisms, one can deposit a particular amount of money in e—wallets. However, this would not be operating as a single and independent device or mechanism. Users may connect their valid government identity proofs with e-wallets. Such e-wallets may necessarily be used through computers, smart phones etc.Everything remains virtual except the device/s that will help a user to access the online transaction mechanisms. It has been continuously stated that plastic money, e-wallets and e-banking systems are safe and better than carrying the currency.
But do we really know who is safeguarding our money in this system? A few provisions Chapter III of our very own Information Technology Act, 2000(amended in 2008) would make this clear. Chapter III discusses about electronic governance. S.6A of the Information Technology Act (IT Act), 2000, amended in 2008 is noteworthy here: it says as follows:
6A Delivery of services by service provider. –
(1) The appropriate Government may, for the purposes of this Chapter and for efficient delivery of services to the public through electronic means authorise, by order, any service provider to set-up, maintain and upgrade the computerised facilities and perform such other services as it may specify by notification in the Official Gazette. Explanation. -For the purposes of this section, service provider so authorised includes any individual, private agency, private company, partnership firm, sole proprietor firm or any such other body or agency which has been granted permission by the appropriate Government to offer services through electronic means in accordance with the policy governing such service sector.
(2) The appropriate Government may also authorise any service provider authorised under sub-section (1) to collect, retain and appropriate such service charges, as may be prescribed by the appropriate Government for the purpose of providing such services, from the person availing such service.
(3) Subject to the provisions of sub-section (2), the appropriate Government may authorise the service providers to collect, retain and appropriate service charges under this section notwithstanding the fact that there is no express provision under the Act, rule, regulation or notification under which the service is provided to collect, retain and appropriate e-service charges by the service providers.
(4) The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this section: Provided that the appropriate Government may specify different scale of service charges for different types of services.
Online transactions for e-commerce purposes are directly connected with the concept of service delivery by service providers. S.6A has got two main component parts: (i) authorization to the service providers by the government to set up provisions for delivery of services in the electronic mode; and (ii) collection of service charges by the service charges. Whenever we get to see a smooth or a bumpy operation of services from the banks or from any other government or corporate authorities, we must know that there is a secret team behind that government department, bank or the corporate authority. They may be independent agencies who are commissioned by such government /bank/corporate authorities. These ‘secret teams’ perform all the technical functions for economic transactions, maintenance of the records for money transactions, maintenance of cyber security issues etc., and they are duty bound to not to violate the confidentiality of the user-data. Intact there are layers of contracts between the actual user and the bank/government/company, between such service provider and the actual users and the government etc. We know only the first layer of contracts and agreements between us, the actual users and the bank/government /company etc., who are providing us certain services or even goods. But there are several examples of violating the agreements and contracts. These ‘service providers’ know us more than we know ourselves because they know our bank details, our spending habits and even our location data too.
Considering the risk for breaching of confidentiality in all such cases S.7A of the IT Act, 2000(amended in 2008) has prescribed for auditing of documents etc., maintained in electronic forms. This Section says as follows:
“7A Audit of documents, etc., maintained in electronic form. -Where in any law for the time being in force, there is a provision for audit of documents, records or information, that provision shall also be applicable for audit of documents, records or information processed and maintained in the electronic form.”
But this is hugely neglected by many stakeholders and this loophole creates several data breaching related legal issues. The Indian legislature has also brought in the Intermediary guidelines Rules, 2021 which also shifts the liability for data protection for intermediaries in certain cases.
However, we must not forget that there is digital divide in our societies. Adults including men, women and people belonging to LGBTQ communities may not always access information and digital communication systems and services. This is a universal problem. Women may not be empowered to use electronic devices in socio-economically backward classes and communities. Not to forget that even though Indian constitution mandates for equal pay for all, women may not always get equal pay in unorganized sectors. Many households in India as well as in many Asian countries do not allow women to take any decision related to family-finances. But there are situations when people are forced to use electronic payment/transaction systems. Covid-19 pandemic is one such situation where the WHO advised to reduce usage of anything which may transmit the viruses from people to people: reduction of usage of currency notes were also suggested as it was understood that the materials in the currency notes may get wet with sweat, saliva etc., and this may be extremely dangerous since it might increase the risk of spreading of pandemic. But there are new researches coming up every day which are suggesting how to take precautions while dealing with papers (including materials which are used to make currency notes) or clothes during pandemic times.
In all such cases, aren’t our constitutional rights get violated if the government or any other stakeholder insists on e-transactions? It actually does.
Answer to this question may be found in S.9 of the IT Act, 2000(amended in 2008). This says as follows:
Sections 6, 7 and 8 not to confer right to insist document should be accepted in electronic form.-Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.
Nonetheless, the above mentioned provision empowers all who may not be able to use or who may want to refuse the use of electronic payment system. But this may not always be considered as the Rule: this is rather Exceptio probat regulam (an exception proves the rule) in the era of internet. Even though the government and other corporate stakeholders may extend their services on humanitarian grounds to help those who may not be able to use the digital payment systems or the e-wallets etc., people’s trust may easily be broken by gross misuse of the powers that such ‘helpers’ may have: ATM debit cards may be stolen, data may be compromised, e-wallets may be illegally operated by such ‘volunteers’ who may want to gain illegal and unethical profits at the cost of innocent people.
It will take longer time to make people from all backgrounds aware about electronic payment modes. It will probably take even longer to control cyber criminality targeting vulnerable people. One must not violate the legal norms and constitutional principles to make the right to life of others almost unachievable. Vulnerable groups including senior citizens, disabled people, socio-economically backward communities, women and children must be given enough protection to gain their trust so that all can survive and win over adverse situations.
During the COVID-19 19 lock down period between march 2020 to almost the end of October 2020, we have seen steep rise of cybercrimes especially cybercrimes against women. These crimes included different patterns: economic crimes, data privacy infringement, child sexual abuse online and creation of widespread hatred. Social media platforms like twitter, Instagram etc., had been flooded with hate messages, fake news, obscene messages etc. but it would be wrong to think that only web-based platforms had been used to creates online harassments or cyber crimes at large. Handheld phones are not spared either. Communication conveyed over phone had been threatening, unwanted and had also taken the nature of bullying. Both the receivers and perpetrators are nothing but Netizens. The concept of Netizens is fiction based just like the concept of cyber space, which finds it roots in the fiction called Neo romancer.
Individuals who live, survive in internet, on the internet and gain infotainment and use internet for connectivity are known as Netizens. The simple connotation of this term could be citizens of net.
But this term has not found any acceptance in any legal statute, international documents speaking about right to access internet, right to be forgotten or even cyber safety, e commerce. This is a popular nickname for all those who use internet, who have been born in the era when internet was booming and those who are connected to each other through information-digital communication technology. Often, we do get to hear that people belonging to the older generation who adopted internet and digital communication technology (because otherwise they could not have survived due to global digital revolution), are called as net immigrants because they may have get accustomed with the digi-culture. But would not prefer to use this term. Worldwide e-governance growth has involved every citizen to become netizen. Digitization by the governments of birth, marriage and death registrations, social security related data, bank data, school data, workplace data, health data, court data and above all internet and digital communication technology consumption data for the purpose of e-governance has therefore made everyone irrespective of age, gender, class, creed etc, netizens.
Netizens play a great role in shaping the livability of themselves as well as other netizens including women and children netizens on cyber space. Laurence Lessig, a pioneering professor on cyberspace regulation predicted that internet will be a virtual livable space with ‘market’ and it would become necessary for State to carefully frame laws to regulate cyber space. His findings stand firm forever. Netizens are important stakeholders for profit generation for internet companies. They also earn by living on the cyber space. By saying this, I however can not ignore the fact that netizens may use internet and cyber space as a whole for ethical as well as unethical profit gain. Consider the positive profit gaining strategies: legal e-commerce activities, earning from content development, etc. The illegal profit gaining part is heavier. Millions of netizens sell and consume data that may have been generated, stored, processed, trafficked in illegal ways. Data of women and girls are the hot priority in this regard. Almost all stakeholders would unanimously agree that cybercrimes against women and girls are rising because of the unmonitored behavior of several netizens.
As such, if we quickly look into the existing constitutional and legal frameworks of different countries, we can see that almost all countries have knowingly or unknowingly developed certain rights and duties for netizens. These rights and duties are universal in nature and may include freedom of speech and expression, right to privacy, right to access justice, right to information, right to live a dignified life and right to be forgotten. Simultaneously the duties may include duty to respect others rights on the cyber space as well as in real life, duty not to incite hatred, not to infringe privacy, copy right of other netizens including organizations and government data etc. the prime duty of every netizen however is to help the victim of online abuse by reporting right violation because if they remain mute spectators, they would become bystanders and add to visual victimization of the victim/s.
We can also see that existing laws have extended penal provisions to charge the netizens for their wrong doings on the cyber space which may affect lives of others in real life. But major problem lies in the jurisdictional issues. Netizens are ubiquitous especially. Netizen from one geographic region may reach out to other netizens situated another geo location. Initiating criminal proceedings against netizens in such cross border criminal cases becomes a huge problem for the criminal justice machinery especially in the absence of treaties to extradite offenders. The international laws and rules also play a major role in charging netizens for offences which may not be considered as indictable offence in the country where the netizen is residing and operating from.
It is expected that the international organizations and States must come together for working towards creation of universal rules for regulating the activities of netizens. This may help all to live and be remembered in a wonderful cyber space.
Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020) ‘Netizens’. Published @https://wordpress.com/posts/internetlegalstudies.com on November 3rd, 2020
Over the years we have witnessed gradual development of internet and digital communication technology and rapid over flow of users of the same who may or may not know the digital socio-legal culture. This internet and digital communication technology that I have mentioned here, primary includes WhatsApp. When this platform started becoming popular in India since 2014-15 onwards, it also became popular platform to form opinions, disseminate news including fake news, harassing remarks for group members and other individuals who may not be group members but may be known to one or other group members. Soon Indian users could get connected with users from other jurisdictions through WhatsApp and the groups formed on the basis of WhatsApp became better connected than networks of people connected on Offline. Consider groups like law teachers’ groups, or groups formed on the basis of common interest like terrace gardeners, animal lovers, theological groups, chartered public vehicle commuters’ groups, health service providers groups etc.: members did not necessarily stay in the same locality, did not work in the same organization or may not speak the same vernacular language. But what bonded them was their common interest. This was some thing more popular than Facebook which was ruling internet during 2012-18 era. Slowly WhatsApp became more popular with specific service people like the IPS or IAS association (non official groups) and judicial officers’ groups. The popularity grew because individuals could actually control who would view their opinion and images that may have been ‘consensually’ shared by the members. It must not be however forgotten that WhatsApp has also notoriously become a platform for several online crimes including crimes against State, against individuals, cybercrimes against women and children, economic crimes, cyber terrorism etc.
Understanding stronger confidentiality setup of WhatsApp, soon workplaces and schools also started their own WhatsApp groups. Presently almost all organizations, schools and educational institutes have their respective division /unit/team-based WhatsApp groups. Some of these groups are moderated and monitored by senior members of the organization or the HR department member or the creator of the group or teachers (in case they are the creators/members of the said groups). The bright side of the story is, people can get the necessary information in their hand phones (which may include WhatsApp services) and they may not necessarily look into their mails unless it is for immediate verification necessity. Mails now have become more official and WhatsApp groups are more personal. The negative aspect is quick circulation of offensive, harassing and unwanted contents.
Here comes the question of liabilities of three groups especially regarding creation, publication and circulation of offensive and unwanted contents. These liabilities may vary according to the age of the creators/publishers/circulators and position of the creators/publishers/circulators. ‘Position’ here necessarily means the website who is hosting the communication, the admin who is moderating or who may have created the group and general members who may be the creators/publishers/circulators of the content. This three groups are as follows:
Let me first start with the website. WhatsApp as the web platform of the communications or Facebook as the parent company facilitating WhatsApp, may seek their excuse from any legal tangle in case of creation, circulation, publication of any offensive contents by virtue of Due Diligence clause which they exercise in almost cases of creation/circulation/publication of contents which are offensive. For this purpose, we need to understand the Indian version of Due Diligence law which can be found in S.79 of the Information Technology Act, 2000(amended in2008); the first two subclauses address the points which may be used by the websites. To summaries:
Websites or intermediaries who provide services including web hosting services, search engines etc (as per S.(w) of the Information technology Act, 2000(amended in 2008), may not be liable for any third-party activities carried out on their web platforms if such activity (which includes creation/publication/circulation etc. of any offensive, harassing etc. contents) is not initiated by the website, the website dies not select the receiver of the transmission and the website does not select or modify the information contained in the transmission. The website or the intermediary will also be excused from the third party liability in case the same has practiced due diligence as per the laws, rules and guidance as has been mandated by the Indian government. These Rules are mentioned in Information Technology (Intermediaries guidelines) Rules, 2011, which have further been suggested for amendment. As such, these Rules include the following responsibilities of the intermediary or the web platform:
Publishing of Rules, regulations, privacy policies and user agreements which will clearly make the user understand that posting/transmission of/uploading/modification etc of contents which may be grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; harm minors in any way; infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force; deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; impersonates another person; contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation. threatens public health or safety; promotion of cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) & like products that enable nicotine delivery except for the purpose & in the manner and to the extent, as may be approved under the Drugs and Cosmetics Act, 1940 and Rules made thereunder; (k) threatens critical information infrastructure.
Provide all support to the criminal justice machinery to disclose incidences of cyber security, the identity and all other relevant details of the harasser/originator of the offensive content.
Not to host/transmit/publish etc any information which the website management known to be illegal and offensive.
Provide periodic update on the policy of the web company related to users liabilities, rights and duties etc.
Take down reported content within considerable time of maximum 24 hours (as the draft Intermediary Guidelines (Amendment) Rules, 2018 indicates). 
In short, the web companies, intermediaries may not be directly liable for WhatsApp mess-ups that may be done by the individual users.
The second party which may attract the liability for publication/creation/circulation of any offensive content on the platform is the group admin. Now, let us first understand who are called as ‘group admins’: WhatsApp provides certain features especially for group chats and this includes monitoring of the group by designated persons who are known as admins. Admins may not necessarily be the creators of the group. However, the latter may always remain as admin in spite of creation of multiple admins by him/her. Admins may have the power and authority to include and exclude members, block members, restrict the publication of comments and create group policies which may be used to restrict a particular member/s in case of violation of the same. Indian courts have in numbers of occasion, held that group admins may not be held liable for the activities of the members of the group in case the said admin had shown due diligence to restrict publication/circulation/creation of offensive comments. This due diligence is however derived from the understanding of criminal law sanctions mixed with tortuous liabilities. For example, consider the followings:
If the group admin has not been made group admin consensually and he does not know the subject of discussion of the group, he may have a very narrow defence of being misled by other admins/creator who forced him to join them in criminal activities like creation/publication/circulation of offensive contents which violate the existing laws of the Land.
If the group admin himself had not created/circulated any offensive content and had warned any user for not sharing/posting etc any content which is offensive, he may not be made liable for creating/sharing contents which may be offensive under any law if any member had even for some time (when the admin was not expected to watch/monitor the group) had posted/circulated some offensive content. But in such case, if the content falls in the category of child sexual abuse material which may be categorised under S.67B of the Information Technology Act, 2000(amended in 2008) or POCSO Act, the admin may not avail any excuse.
In case the group admin is a child, the question becomes tricky. If the group is specifically made by minors, the police, the prosecution and the court have to see who may have provided the basic assistance in accessing the web platform and the contents (including the offensive contents). Necessarily in such cases, courts may have to use the principles of vicarious liability because a child may not be eligible to own a SIM card unless an adult provides him the same. Here, the basic understandings of contract laws and age of maturity may be applied. Now, let us see the case of the WhatsApp group of students of an elite school in Mumbai where minor students were discussing about child sexual abuse of their own female classmates: parents may be made vicariously liable in such case, which actually did not take place, may be because here the parents of the accused children themselves alerted the school and restricted further violation of rights of those children who were targeted for the sexual fantasy of the adolescent boys. But here one needs to check whether personal information including images of the ‘victim children’ were disseminated unauthorizedly or not, or whether it was restricted only to the use of names. In both cases POCSO Act may be applied (in the latter case , Ss.11 (sexual harassment), 13(use of children for pornographic purposes) and S.14 (punishment for using children for pornographic purposes) of the POCSO Act may be narrowly applied.
However, if the group admin/s knowingly allow creation/circulation /publication of posts which may be offensive in nature, they may not get any excuse from the clutches law specifically made to punish the commitment of such acts like creation/circulation/dissemination of obscene images (S.67), sexually explicit contents (S.67A), voyeurism and sharing non-consensual images (S.66E of the Information Technology Act, 2000(amended in 2008) and S.354C of the Indian Penal Code, defamation (S.499, 500 Indian Penal Code), sharing information which has been restricted as seditious material under S.124A IPC or any other law which may restrict freedom of speech in the line of Article 19(2) of the Constitution of India, all of which may be read together with Ss.107 and 108 of the Indian Penal Code and S.84B of the Information Technology Act, 2000(amended din 2008)( laws related to abetment of offence ).
Coming to the liability of the third group of users of WhatsApp, it may be seen that if a user/user create/publish/circulate any content which is offensive in nature, they may be liable as per the respective legal sanctions. However, the act of forwarding any content has also been considered as within the scope of defamation laws (under S.499/500 IPC ) or in case of online harassment of women and children, within the meaning of different kinds of offences recognised by law including voyeurism, stalking, non-consensual image sharing, indecent representation of women, child sexual abuse, grooming etc.
But the question larks on the issue of machine and artificial intelligence, which may make the admins responsible in case they may not be aware about the usage. For example, if the admin is a new user or not accustomed with the privacy and security features of WhatsApp, he may not be able to restrict certain ‘posts’ which may be published because of the machine intelligence: this may include certain words which the phone may suggest presuming the first few alphabets. He may neither be able to restrict a member which may have been suggested by the computer system of the platform and the device. Further, he might also not be able to remove certain posts which may have surfaced in the group due to resharing or forwarding by other members. Here, the group admin’s liability must be seen exclusively. Websites or intermediaries however would not be liable by virtue of the proviso clause of Rule 3 of the Intermediary Guidelines Rules, 2011 (and also Amended draft version of 2018), which says “……………….the following actions by an intermediary shall not amount to hosting, publishing, editing or storing of any such information as specified in subrule(2): (a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource; (b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act.”
As may be understood from the above, WhatsApp group admins therefore may not always claim to be immuned especially when they were aware of the group activities, they had not practiced due diligence from their side and they had published or forwarded offensive contents themselves for the wider circulation of the same.
*Prof(Dr)Debarati Halder, LL.B., M.L., Ph.D(Law)(NLSIU) is the Managing Director (Hon) of Centre for Cyber Victim Counselling (www.cybervictims.org) . She can be reached @firstname.lastname@example.org
 See Halder D., & Jaishankar, K (2016.) Cyber crimes against women in India.
New Delhi: SAGE Publications. ISBN: 9789385985775 for understanding types of cyber crimes against women and laws.
 See Halder, D. (2018). Child Sexual Abuse and Protection Laws in India. New
Delhi: SAGE Publications. ISBN: 9789352806843, Halder D., & Jaishankar K. (2014). Patterns of Sexual Victimization of Children and Women in the Multipurpose Social Networking Sites. In C. Marcum and G. Higgins (Eds.), Social Networking as a Criminal Enterprise (pp. 129-143). Boca Raton, FL, USA: CRC Press, Taylor and Francis Group. ISBN 978-1-466-589797 for more understanding on types of cyber crimes against children.
 See for example, Kurowski, S., (2014). Using a whatsapp vulnerability for profiling individuals. In: Hühnlein, D. & Roßnagel, H. (Hrsg.), Open Identity Summit 2014. Bonn: Gesellschaft für Informatik e.V.. (S. 140-146). Available @ https://dl.gi.de/handle/20.500.12116/2633 Accesed on 21.01.2020
 See for example, Broadhurst, Roderic and Woodford-Smith, Hannah and Maxim, Donald and Sabol, Bianca and Orlando, Stephanie and Chapman-Schmidt, Ben and Alazab, Mamoun, Cyber Terrorism: Research Review: Research Report of the Australian National University Cybercrime Observatory for the Korean Institute of Criminology (June 30, 2017). Available at SSRN: https://ssrn.com/abstract=2984101 or http://dx.doi.org/10.2139/ssrn.2984101 Accessed on 20.01.2020
 By way of Intermediary Guidelines (Amendment) Rules, 2018
 The Intermediary Guidelines (Amendment) Rules, 2018 also mentions that if the intermediary has more than 50 fifty lakh users in India or is in the list of intermediaries specifically notified by the government of India, it shall:
(i) be a company incorporated under the Companies Act, 1956 or the Companies Act,2013;
(ii) have a permanent registered office in India with physical address; and
(iii) Appoint in India, a nodal person of contact and alternate senior designated
functionary, for 24×7 coordination with law enforcement agencies and officers to
ensure compliance to their orders/requisitions made in accordance with provisions
 For understanding this, we need to see S.11 of the Indian Contract Act, which says minors, persons of unsound mind and persons disqualified by law may not be able to enter into any agreement.
 See India Today Webdesk. Schoolboys at posh Mumbai school talk about raping classmates, ‘gang bang’ in horrific WhatsApp chats. Available @https://www.indiatoday.in/india/story/mumbai-ib-school-students-whatsapp-chat-horror-1629343-2019-12-18 . Accessed on 21.01.2020
years YouTube has won millions of hearts in India as a social media platform
especially among women. This is because unlike other social media websites, YouTube
has provided a platform to earn money based upon views and subscribers.
Contents uploaded by users may be varied: it can be home decor, power point
presentations of simplified versions of undergraduate subjects, subject lectures
by professional teachers or amateur subject experts, cooking recipes, Do It
Yourself (DIYs), home organisations, daily routines of home makers, technological
solutions, how to do stuffs etc . Several women have used YouTube to earn money
generated through the revenue that YouTube promises once the user can reach some
criteria like getting 1000 subscribers or 4000 watch hours etc. 
YouTube however would not lead the user to create contents that may earn more
watch hours or subscribers. Users may go for market survey to understand which
sorts of videos may attract more views, ,more subscribers etc. mostly new users
including men and women may try to create videos on anything that they feel
proper to share to the world. YouGTube , like Facebook and Instagram has
features for allowing users to create videos for private sharing. This enables
the users to share the video which may be watched only by those whom the
creator chooses. The users may however go for wide circulation of their contents
by not only making the videos public, but also by going live whereby the users may directly communicate
with their subscribers or may share information while live. Even though going Live may be a feature specifically
for improving the relationship between the user and his/her subscribers, live
videos can be watched by the world wide audience even if they are not
subscribers to that particular user. Here, YouTube may not play a vital role to
restrict uploading and sharing the contents unless the subscribers or viewers may flag the content as inappropriate. In short, YouTube may actually provide a wide
platform to share anything including bullying videos, mashed up videos, child and
woman abuse videos, birthing videos, adult sexual interaction videos and so on.
While the adult sexual videos and birthing videos may not be universally accessible
unless the user logs in to his/her YouTube accounts, other sorts of videos are accessible
to all irrespective of age. YouTube however uses the due diligence clause to
escape from any third party liability by providing notification which restricts
children from viewing adult sexual contents or violent contents which may
traumatise children. Hardly this has any
practical implication because children may access these videos by using email
ids which may be created on the basis of fake age , or may even log in through
their parents’ or friends’ email /YouTube ids.
attention here is however attracted to the contents shared by YouTubers: I have
been an avid watcher of YouTube since many years now. I have been following the
changing trends of users in uploading the contents. Earlier it was more on
creating mashed up videos which may have the potentials of violating the copyrights.
Such videos have also been silently encouraged by actors, singers and producers
because these actually publicise their work even though it may violate the
But slowly, the content creators, especially women started becoming reviewers
of products on YouTube as well. This included using of cosmetics, kitchen wares
organisers etc that may be shown in the daily routine videos, home organisation
videos or make up tutorials.
not only get views and subscribers as may be needed for fulfilling the YouTube
monetising criteria, they may also be connected with the brands manufacturing
the products or dealers of the products who may wish to showcase their products
through these non-professional videos. Several urban and rural women home
makers have actually benefitted from this: consider Youtubers like Radhika Real
who may be rural homemakers, but may have made a moderate to comfortable living
because of their YouTube videos advertising about different brands including retailer
brands. Nonetheless, these YouTubers may
also be victims of bullying and trolling for the quality of their videos, their
pronunciation, lifestyle and even house decorations.
While these women may have made a landmark professional/personal achievement because of YouTube, they may unknowingly violate privacy of their own children or even spouses or other family members as they may be showing and informing the worldwide audience about their family members who may not may consent for such wide distribution of images of themselves. These YouTube videos may also be the subject matter of bullying and ridiculing the children of such YouTubers since these may stay on worldwide web for long time. YouTube videos may also create severe domestic violence for several reasons which include live fights between spouses which may be captured by third party YouTubers for fun and uploaded and circulated for getting more views; or airing of grievances by women YouTubers against the other spouses, without knowing the far-reaching consequences etc. These videos may attract huge views and opinions, comments in the nature of cyber bullying and also trolling targeting the YouTuber concerned or supporters of the same. Consider the case of two specific youtubers from Delhi, who are spouses in real life : the wife is a senior YouTuber whereas the husband is a recent Youtuber: They had severe altercations and started living apart. But this was not enough: both used YouTube to throw insults and humiliating words to each other and their teen daughter was allegedly dragged in between. The recent reports suggested that the teenager girl who was staying with her father for couple of months after the separation, was beaten by the latter while on live and her t-shirt was torn in a manner which would show her inner wares. The girl was beaten because she wanted to visit her mother. This video became viral as several supporters of the wife started showing the clippings through their own channels. Some had also informed ChildLine and the police who had rescued the teenager and sent her to her maternal grandmother. There are several other YouTubers who started discussing about incident using the profile name of the husband wife duo. While the news report published in the local news media suggested that the teenager was often beaten by both the parents when they were drunk and she was forced to come on live which she refused many times, the news clipping did not mention about the name of the girl and that of her parents as S.74 of the Juvenile Justice Care and protection Act, 2015 prohibits publication of the identity of the child in need of care and protection or child in conflict with law. The provision reads as below:
S.74. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.-1. No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child. 2. Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.
Now, let us understand the scope of this provision in the light of this particular case: the first subsection prohibits any report including news report, inquiry etc from disclosing the name, information etc of the concerned child. The second proviso extends the scope to ‘anyone’ who may contravene the prohibitory scope of S.74. Seen from the perspective of electronic media and the concept of citizen journalism, which gives every one right to share information, the term ‘anyone’ may literally include anyone including the good Samaritans who may have wanted to alert the concerned authorities, share their opinion against such acts of women and child abuse. Further, note the words “any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published” mentioned in the first sub clause. This may include the name of the concerned child and names of the parents. But apparently, this provision became a just a paper tiger in this case because those who had watched or subscribed to the videos of the couple had already known about the identity of the teenager because of the daily Lives put up by the parents and discussion about the girl in the videos posted by them. If one visits the comment section of the recent videos of both the parents in the recent past, it would be seen that commenters have taken the name of the girl, asked about her whereabouts and in some cases, some had also suggested about her changed behaviour after she had stayed with her respective parents separately. Nothing is confidential for those thousands of worldwide audiences now who had watched the parents daily and who had also witnessed the Live video where the girl was beaten up by the father. In spite of repeated request by the mother of the girl, several YouTubers still did not take down videos mentioning about the name of the father (which broadly falls within the meaning of “any other particulars calculated to lead to the identification of the juvenile or child”) when this writeup was published. While the Juvenile Justice Care and Protection and Act provides a base rule, the concerned YouTubers may not be held solely responsible because the parents already violated the privacy of the teenager and encouraged thousands to watch the couple fight which had every potential to attract penal provisions for using words etc for harming the modesty of the wife under S.509 Indian Penal Code as well as defamation of both the wife and the husband under Sections 499 and 500 of the Indian Penal Code. YouTube on the other hand has not taken down the videos of either of the spouses or that of the other YouTubers which may showcase the names of the parents and the child because it is guided by First Amendment of the US which may hardly be affected unless YouTube has been approached to take the videos down by concerned stakeholders.
It is now
a typical love triangle of three parties : YouTube, which is loved by all for
providing such an open platform for airing opinions and consumption of real
life family dramas, the YouTubers who may expect to get support, views,
popularity and money because of participating in the trolling and independent
discussions on such issues which may rip open privacy of general individuals including
children and criminal justice machinery, most of whom may never know how to
manage legalities of YouTube videos because they are completely ignorant of
this new type of electronic media.
But this is
not a unique incident that attracts the attention of legal researchers,
especially privacy law and speech law researchers. YouTubers, especially women YouTubers
continue to violate privacy knowingly or unknowingly and provide more opportunity
to trolls, bullies and offline perpetrators to victimise them because they may
not be aware about the netiquettes of YouTube. Time has come that YouTube users
become cautious of the contents uploaded by them and legalities attached with
such uploading and sharing. In this festive season YouTube content uploading
and sharing may have seen a steep rise. But it is upon YouTubers to control
what must be shared and may not.
is more powerful than televisions, more demanded than movies and more
devastating than what is generally apprehended.
example see Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes:
An Analysis of the Victimization of Female Film Stars on the Internet. Temida –
The journal on victimization, human rights and gender. 19(3-4), 355-372