Going viral on social media: A reckless practice
A Legal Analysis
Given the absence of civic sense among our people in using social media, the trend of capturing anything and making it viral online without considering the probable consequences has become a matter of serious concern in recent times. The offenders are not the only sufferers in these cases, rather the innocents also oftentimes fall victims to reckless trending.
An effort has been made here to examine the legal implications of going recklessly viral on social media.
Going viral on social media also violates many statutory legal provisions relating to privacy and defamation, apart from the infringement of several constitutional guarantees. Even if the alleged action is a crime, the publication of such action on social media results into outright victimization of an individual by impairing his reputation and personal dignity without giving him an opportunity of self- defence through a fair trial of law.
Such practice violates Article 31 of the Constitution which provides for the protection of law and the right of every person to be treated in accordance with the law. The same article mandates that no action detrimental to the life, liberty, body or reputation of any person shall be taken except in accordance with the law. This reckless practice is also conflicting with the wider threshold of right to life and liberty as enshrined in Article 32 of the Constitution since it has been interpreted as to include the right to live with honour and dignity.
Most importantly, defaming someone with criminal stigma undermines one of the cardinal principles of criminal justice that every accused person shall be presumed to be innocent until proved guilty beyond any doubt.
On the other hand, such social media incidents also involve the very sensitive issue of privacy. Since there is no statutory definition of the term 'privacy' in our domestic legal system, recourse may be taken to the Indian legal system where the Supreme Court, in Sharda v Dharmapal case, defined the term 'privacy' as 'the state of being free from intrusion or disturbance in one's private life or affairs'.
Despite the absence of any express provision relating to privacy in the Indian Constitution, the Indian judiciary went one step further by including the right to privacy within the ambit of personal liberty. Unlike the Indian Constitution, there is an express provision (Article 43) in Bangladesh constitution regarding privacy, though the provision is not comprehensive one as it covers only the privacy of correspondence and means of communication.
Several international treaties such as Article 12 of Universal Declaration of Human Rights (UDHR) and Article 17 of International Covenant on Civil and Political Rights (ICCPR) have recognized privacy as a basic right where one's privacy, family, home, honour, reputation and correspondence will be protected from inadvertent interference.
However, the interpretation of privacy within the ambit of right to life and liberty has been a global judicial trend. The privacy jurisprudence in the modern human rights regime has gone so far that even the criminals are not excluded from this protection, let alone the accused ones. For instance, in US v. Kelly case all the United States attorneys were directed not to make public photographs of accused persons before trial, except when a prisoner becomes a fugitive.
Apart from the implied constitutional guarantee of privacy, the recently enacted Digital Security Act, 2018 contains a very explicit provision on privacy in its Section 14 which states that if any person takes the photograph of others willingly or deliberately and publish or send or distort the same with an ulterior motive, such act will be considered as the violation of the personal confidentiality and provides severe punishment for such offence.
Section 16 of the same law further penalizes publishing or broadcasting of any content in any website or electronic device which can pervert or pollute the human mind and can even defame or belittle any person. Given the post-upload consequences of those social media videos, such reckless practices will obviously come within the preview of provisions enshrined the Digital Security Act of 2018.
Therefore, we must stop this illegal as well as the immoral practice of bringing endless sufferings to someone's life through premature victimization of individuals on social media platforms.
Md Naimul Hasan is Lecturer, Department of Law,