1.     
INTRODUCTION

 

1.1  Evolution

Social
media assumed a very important role after the dawn of internet age, as a result
of which certain legal complications were inevitable. People could reach out to
each other with the help of social media forums like Facebook, LinkedIn, and Twitter
etc. Slowly, social media became an important channel for promotion of
commercial goods and services and there was a strong need to regulate it. Consequently,
certain statutes like Information Technology Act 2002, Indian Contract Act
1873, Civil Procedure Code 1908 were applied to find out possible solutions of
the problems in the internet domain, discussed in this paper by the authors.

The
Bar Council of India is the regulator of legal industry and hence lawyers are
regulated under certain rules. Rule 36 of the Bar Council Rules clearly states
that any advocate cannot advertise his/her legal services, considering the profession
is a noble one. Promotion of legal services would sound like one can commit crimes because there is a
good lawyer who could save him from the trouble and thereby promotion of
legal services would indirectly mean promotion of committing crimes. Despite of
clear regulations in this behalf which was relaxed by an amendment in 2008 the
law firms and certain individual legal practitioners did not pay much attention
and posted their previous glorified work on social media portals. The authors
have tried to cover the rationale behind such tolerance level pertaining to
social media and legal industry.

Another
angle to the discussion regarding acceptance level of social media in legal
industry could be, that with the advancement in information technology, the law
also needs to adapt to changes quicker to keep pace with the changing industry
trends and the legal issues attached thereto. WhatsApp summons are one of those
examples, wherein the courts have appreciated the use of technology to fulfill
the legal needs and requirements. In case, the address of the accused is not
traceable, summons can be issued through WhatsApp and shall be considered to be
legally binding. Mumbai High Court as well as Delhi High Court have given their
ascent to such a concept terming it the need of the hour.

Acceptance
level of social media in legal profession should not be considered to mean that
any kind of legal information cannot enter the domain of social media. Indian
law presumes that civilians are aware of the law and therefore the concept of ‘ignorance
of law is no excuse’ is practiced. By this, one could infer that there is no
problem in spreading legal knowledge or education over social media. Since
online social forum can be compared to an open democracy system it comes with
certain regulations which must be adhered with and hence there was an apparent
need to evolve regulations for social media forums which the authors have tried
to deliberate in this paper.

 

1.2  Scope of study

In
this project, the authors have covered all the aspects related to social media
and our study is restricted to media on internet, not taking into account
television media or any other media channel. The authors have also done
research regarding the relevance of social media in the legal world by doing a
questionnaire type sampling with four well known people from legal industry.

Our
project is restricted to few major relevant topics related to social media,
though there a vast number of other areas which haven’t been divulged into in
this project. This project covers all the major issues like cyber-crimes, bar
council advertising, whatsapp summons and media trials. This project also tries
to form a link between the current scenario and the future relevance of social
media in the legal profession.

 

2.     
RESEARCH
METHODOLOGY

The researchers have
adopted the doctrinal research methodology in the compilation, interpretation
and systemization of the secondary sources in order to carry out the following
study.

 

2   

2.1  Relevance of the topic

 

2.2  Research Questions/ Hypothesis

The
authors collected data from four legal professional via a questionnaire1 and
tried to capture a small sample survey on the basis of following questions:

 

a.       Do
you feel it is ethical to promote legal services?

b.      How
frequently you/your company uses forums like Facebook, LinkedIn to attract
talent/promote glorious work?

c.       Do
you support media trials?

d.      Do
you think social media can play a significant role in legal fraternity in
future?

 

 

3.     
LEGAL/
RESEARCH ANALYSIS

 

3   

3.1  Relevant Legal Framework

 

3.1.1.     
The
Bar Council of India Rules for legal advertisements

Internet
marketing has revolutionized the platform for advertising one’s credibility and
establishment to a great extent. It has become so famous that it has come into
the list of advertising along with traditional types such as television, radio,
papers and magazines. This would mean that legal profession’s promotion
pertaining to social media is in question for certain reasons.

The
legal fraternity in India is barred from advertising their services as per the
Advocates Act, 1961 and Bar Council of India Rules. This Rule was brought in
considering that the profession is a noble one and such advertising of legal
services would be derogatory to the profession.

India
has thick population of lawyers. The prohibition of legal advertising is based
on its adverse effects on professionalism as selling legal professional
services was believed to undermine the lawyer’s sense of dignity and self-worth,
if publicized at all.

Consequently
the Bar Council of India has placed a complete ban on advertisement of legal
services. In 2008, the ban was relatively relaxed and legal professionals and
law firms were allowed to set up their websites which would specify their contact
details and area of specialization along with qualifications. The profession is
of such a noble character that only good word shall be the promotion of a good
lawyer otherwise bad practices would flourish and populate the legal fraternity
in a negative way.

In
2008, with the help of an amendment the Bar Council of India amended Rule 36. According
to the amended rule, advocates were allowed to furnish information on their
websites in conformity with the schedule as per which information like name, address,
telephone numbers, e-mail ids, enrollment number, professional and academic
qualification, area of practice etc. could be featured on the website. Along
with the information which was allowed to be published on social media, legal
professionals were required to provide a declaration that the above information
provided by them is true.

In
the case of C D Sekkizhar vs. Secretary Bar Council, the Madras High Court
propounded that advertisement by lawyers is considered as unacceptable conduct.
Further it held that India is a country with large population of illiterates
therefore this would lead to situation of exploitation of public while in
actuality, the law was created with the idea of public service.

3.1.2.     
Media
Trials

Social
media is such a powerful channel of information that it can mould the opinion
of the society at widespread pace and hence there is a need to have a fine line
between spreading awareness and assuming function of judiciary. There have been
lot of cases wherein media trials have resulted in violation of civil rights of
the one who is still accused and not guilty.

Social
media is rightly regarded as the fourth pillar of democracy because perception
of social media channels become the perception of the society. Hence, there is
a very urgent need for all the social media forums to exercise their rights and
powers within certain degree of responsibility. Article 19 (1) (a) of the
Constitution of India, provides freedom of speech and expression to every
Indian citizen which includes freedom of press to operate independently. This
is a pertinent and essential feature of democracy. Social media is instrumental
for building opinions and views on various regional and international issues.
It performs the function of checks and balances by assuming the role of
conscious keeper or watchdog over blatant violation of laws.

It
has been seen that Judiciary has benefitted a lot from the fearless journalism
as it leads to more fruitful evidences and on the contrary sometimes the
evidences have been distorted to such an extent due to media trials that
regulations to curb malpractices becomes essential. Media houses and social
media forums, many a times assume the role of judges by pronouncing their
opinion as verdicts even before the Judiciary has passed any verdict; on the
flip side cases like Priyadarshini Mattoo murder case, Jessica Lal murder case,
Nitish Katara case, Bijal Joshi rape case, Aarushi Talwar case etc. have been
the greatest win on the social media trials front. Consequently the
constitutional rights to freedom cannot be absolute, unlimited and unqualified
in all circumstances.

It
is also important to note that a lot of times media trials are done in order to
fetch TRP (Television Rating Point) and to sensationalize journalism for
viewership purposes.

 

3.1.3.     
Cybercrimes

Cybercrimes
can be defined as the unlawful acts where computer is used either as a tool or
a target or both. The term is a general term that covers crimes like phishing,
credit card frauds, bank robbery, illegal downloading, industrial espionage,
child pornography, kidnapping children via chat rooms, scams, cyber terrorism,
creation and/or distribution of viruses, spams, amongst others. It include
everything from electronic cracking to denial of service attacks. It also
covers the traditional crimes in which computers or networks are used to enable
the illicit activities.

Cybercrimes
can be categorized in two ways:

a)      The
crimes in which the computer is the target, examples of such crimes are
hacking, virus attacks, DOS attack etc.;

b)      The
crimes in which the computer is used as a weapon. These types of crimes include
cyber terrorism, IPR violations, credit card frauds, EFT frauds, pornography
etc.

As
we can see Cybercrime is one of the most prevalent crime practices in India,
following are few extractions from a recent Hindustan Times article:

“Every
sixth cybercrime in India is committed through social media, Alok Mittal, the
chief of the National Investigation Agency (NIA) has said. Though he did not
divulge the basis of his findings, data from the National Crime Records Bureau
(NCRB) show around 70% rise in cybercrimes annually between 2013 and 2015. In
comparison, theft and robbery, which account for the highest incidences of
crime in India, show an annual growth of 17-18%.

 “The number of cybercrime cases reported
across India in 2014 was a little more than 9,600, a mere fraction of the
estimated three lakh theft cases (that year). But the concern is an annual
growth of 70% for the last three years,” Mittal said. In 2013, the number was
5,693. Estimates for 2015 put the number of cybercrimes at 16,000.

Cyber
experts said high rate of cybercrime is natural in a country where technology
adoption is high but awareness is low.

According
to experts, economic fraud tops the list of cybercrimes in India. “Lottery and
job scams are rampant. It has taken the form of organized crime in India,” said
Mittal.”

 

3.1.4.     
WhatsApp
Summons

Bombay
High Court has set a new benchmark by allowing whatsapp summons in April of
2017. The producers of the movie “Pushpaka
Vimana” a Kannada movie released in February 2017, was alleged to have been
copied from a Korean movie named “Miracle in Cell No.7” released in 2013. The
producers were facing a copyright infringement case.

In this case, the plaintiffs had tried to serve summon on
defendant’s address by courier and hand delivery, having obtained their
addresses from the secretariat of Central Board of Film Certification. The
first defendant i.e. A K Vikhyat changed his address in order to evade service.
Vikhayat was sent copies of plaint, notice of motion and order of 17th March,
2017. This was acknowledged by Vikhyat’s reply, “‘I dint understand anything.
Will check with my legal team and I’ll text you back. I am out of station.” the
email and that the matter will be heard in court was delivered to the
defendants. Defendants didn’t show up for the court proceedings Justice Gautam Patel noted in his order that the court is not
so rigid that it cannot move ahead with time, it further said that “Defendants
who avoid and evade service by regular modes cannot be permitted to take
advantage of that evasion.”

In one such other case in Delhi, on May 4, the Delhi High
Court had allowed use of WhatsApp and email in judicial proceedings. Justice
Rajiv Sahai had allowed the plaintiff to serve summons on one of the defendants
through WhatsApp, text or email. “Plaintiffs are permitted to serve the
defendant… by text message as well as through WhatsApp as well as by email and
to file affidavit of the service,” the High Court said.

Following this suit Senior Civil Judge cum Rent Controller
(North) Sidharth Mathur in Rohini court allowed colour printout
of the screenshot(double blueticks), and submitted it to court as proof of the
notice being served.

This was followed by other high courts giving similar decision:

a.       Delhi HC Allows Service of Summons via WhatsApp, Text message
and Emails in May, 2017.

b.      Allahabad HC Summons Parties through Whatsapp July, 2017

Hence, we may infer how even Hon’ble High Courts have been
accepting of social media as an official channel of communication and also as
evidence from case to case basis as an important part of their proceedings
while other courts are already following the precedent.

 

4.     
COMPARATIVE
STUDY

 

4   

4.1  Identifying drawbacks/ gaps in
legal framework

 

Cybercrime
is one of the most growing type of crime in the world currently. There are
still lot of cybercrimes which go unreported. India is still growing with the
laws related to cybercrimes with the IT act being more stringent and growing
cyber cells for reporting of cybercrime this gap is slowly being filled.

 

Whats
app summons are a huge leap forward for acceptance of social media in the
courts. In recent times sound recording on the phone and video recordings have
also been started being accepted as evidence in the court. Given that,
technology comes with its drawbacks. There is a lot of chances of forgery,
hacking etc  which are prevalent and
could lead to grave mistakes in judgments.

 

5.     
CONCLUSION

 

5   

5.1  Student’s Findings and
Recommendations

As
technology rapidly evolves, the key question is whether the legal profession
can keep pace with such developments, and, in doing so, what safeguards or
controls are needed to ensure that ethical and professional standards are
maintained. The benefits that social media and social networking websites
provide are unquestionable for both personal usage and business purposes.

However,
it is also undeniable that lawyers, in particular, must always ensure the
careful monitoring of their corporate profile and presence is in the social
network.

The
lack of understanding of the implications for users of social media is a
leading reason for which many judges/lawyers are refraining from embracing the
new phenomenon. This is an unfortunate result in light of the numerous
advantages.

Thus,
a solid understanding of social media and the strict compliance with privacy,
intellectual property and defamation laws are essential to a successful
experience in this new networked world we live in.

In
relation to criminal matters the police now regularly use social media to look
for comments about an offence that has been committed or to check a version of
events provided by someone who has been questioned.  Solicitors may need to be proactive in
assessing the implications of social media in a case.  There are also issues linked to stalking and
higher profile issues around racist, sectarian or threatening statements.

Employment
law, particularly in situations relating to recruitment, misconduct and
dismissal. Solicitors involved in drafting wills are now also increasingly
having to consider the digital legacy left by an individual – be that
encouraging them to leave passwords and user names with their will to allow
sites that some relatives may find upsetting after death to be taken down,
through to advising on ownership of things such as collections of family
photographs held on social media account.

In
relation to, advertising. The Institute of Advertising has warned that
activities such as posting positive comments or reviews, or planting viral
marketing advertisements, without making it clear that the individual is acting
on behalf of a business, could breach the consumer protection laws. Similarly
the Advertising Standards Authority (ASA) and Financial Services Authority
(FSA) will seek to apply their own standards and regulations to social media if
applicable. Firms should consider the implications of individuals using social
media for business purposes, and whether activity on personal accounts may
amount to advertising or paid for content.

The
law is still developing, and much remains to be seen about how the increasing
use of social media will impact different areas. In the meantime, the legal
profession should be aware of the potential for social media to affect a situation.

In
every aspect of law and practice lawyers should increasingly be asking what new
implications are bought by social media and our increasingly digital lifestyle.

 

1
Questionnaires attached as Exhibit A as annexures to this document.