NEW DELHI: In its counter-affidavit to the PIL in the Delhi High Court, Facebook has argued that limiting access to social media can limit an individual's freedom of speech and expression. The PIL, among other things, deals with the issue of minors accessing Facebook services, arguing that under the Indian Contract Act 1872, minors can't enter into a contract. The PIL will be heard next on Friday.
Last year, the UN Human Rights Council had passed a resolution declaring access to the Internet as a human right. Facebook has argued making a similar point for access to social media. "The Internet is increasingly becoming a platform for citizens including minors to interact and voice their opinions and, therefore, a meaningful interpretation of the right to freedom of speech and expression would include the freedom to access social media," the counter-affidavit says.
"It can be argued that in a technologically mediated society, social media and communication infrastructure is essential to exercise freedom of expression," says Sunil Abraham, director, Bangalore-based Centre for Internet and Society.
Cyber lawyer Pavan Duggal sees it as "hyperbole". "The issue still remains that a minor doesn't have the capacity to act under the Contract Act," he says. Lawyers say that if a contract is entered into for free service in exchange of personal information, it is a "consideration" (like cash or kind) under the Indian Contract Act 1872. The Act says, "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." It then lists minors as incompetent to contract, and says, "The agreement, if any party is minor, is void ab initio." However, Abraham points out that "It is not an offence to enter a void contract."
To weed out fake profiles and children's profiles, the PIL, filed by former RSS ideologue K N Govindacharya, argues that "obligation is cast upon Facebook and other social networking sites to verify the authenticity of each and every subscribers (sic) which is mandatory for Mobile companies in telecommunication sector."
Mumbai-based professor of law Saurav Datta feels this sort of authentication could have serious privacy implications. "There is no way they can verify users without impinging on their privacy. The goal of the PIL is wrong. We need to protect children, not keep people out," says Datta.
Abraham says that a possible way to deal with this can be on the lines of Canadian privacy law where a privacy commissioner can raise such concerns with the service provider directly.