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Can Facebook be held liable for abetment to suicide

We all know for any act to be an offense, two basic ingredients are sine qua non. One is actus reus & another the mens rea. In simple words, the commission of an act that is prohibited by law with a guilty mind is termed as an offense. And Section 306 of IPC is also not an exclusion to this basic principle...

Abetment to suicide is a penal provision under Section 306 of the IPC. Section 306 is a punitive provision & prescribes the punishment for the above-named offence. But it doesn’t define what is abetment of suicide. So here, we have to refer to chapter V of the IPC, to get the definition of ‘Abetment’. As per section 107 of IPC, abetment means: a person abets the commission of an activity when:

  • He/she instigates any person to do a thing,
  • He/she engages with one or more persons in any conspiracy for the doing of that thing or if an act or illegal act takes place in pursuance of the conspiracy, or
  • He /she intentionally aides the doing of that thing by any act or illegal omission.

Now, after knowing what is abetment, we can very well define & understand what abetment of suicide means. We need to just replace the word ‘thing’ with ‘suicide’ in above definition.

Now, as we all know, for any act to be an offense, two basic ingredients are sine qua non. One is actus reus & another the mens rea. In simple words, the commission of an act that is prohibited by law with a guilty mind is termed as an offense. And section 306 of IPC is also not an exclusion to this basic principle. To conclude an act u/s 306, the person needs to have committed actus reus along with mens rea. Section 107 uses the word “a person”, here as per section 11 of IPC, ‘person’ includes any company or association or body of persons, whether incorporated or not. So, we can say Facebook or any social networking site may be defined under ‘person’ and section 107 & 306 straightway applies to them. But the greatest question to answer here is where the mens rea lies? Why Facebook will ‘intend’ to instigate anybody to commit suicide? What is Facebook’s motive or modus operandi? This article talks about this simple looking complicated question’s answer.

Let us see and discuss

Today’s world has shrunk, everybody is linked through the internet. And one of the most effective and handy tools in this field are the ‘social networking sites. And among this the pioneer is ‘Facebook’. Facebook is one such platform where approx. 2.5 billion users are registered. And you must be aware about the world’s population, i.e. 7.5 billion, so it amounts to approximately 33.33%. It’s a huge number, believe me. And this number is obviously increasing day by day.

In this 21st century, it will not be a superlative to say our life revolves around the internet, from the very beginning of the day to the last second of the day, from our bedrooms to toilets we use mobile, internet and other IT devices. In simple words the internet nowadays is an inextricable part of our lifestyle. Even some of the High courts of India have already declared the right to use the internet as one of the fundamental rights. Recently the apex court also raised concern on the action of the government to reduce the internet speed to 2G in Jammu & Kashmir. The apex court asked the government to restore the speeds to 4G because the students cannot study staying at home with such a snail slow speed. So, these discussions tell us how much the internet has become an important part of our life.

Role of internet

The internet is also playing a very important role in shaping our minds, it somewhere or the other is deciding our ideologies and also playing a key role in governing our day to day actions. How? We react on a particular topic on the basis of information we have on that, if we have positive information it pleases us and vice-versa. We form opinions on the basis of information that we come across in the internet. The internet has become a virtual world which is absolutely similar to the real world. If somebody posts any defamatory article on the internet, it comes in the public domain and may attract actions for defamation. Such posts reach more people than it would have been if that would have said in the real world.

Form the above discussions one thing is clear that the internet is obviously a boon for us all. But as every coin has two sides, the internet also is not an exception to this rule. It is also being used by many people as a means to commit crimes by simply sitting at a distant place holding a computer or a mobile phone and just plugged in with an internet connection. These in the modern world called “cybercrimes”. Everyday unlike murders, rapes etc. we come across many cybercrimes.

And another proof that the internet is an inextricable part of our life is that you may not have witnessed crimes like murder, dacoity, grievous hurt, etc. but every one of us must have someday or other been a victim of cybercrimes. Didn’t u ever got any fraud calls asking you for OTPs or asking you to just open your PhonePe account and click on “accept” and within a second, thousands of rupees get deducted from your account?

Those are called cybercrimes unfortunately. If you have not been a victim till today, you are lucky but there are fewer chances that you will never ever be one, because of the reason that the technology is changing every day. And I hope it is impossible for any common man to keep himself updated every day with the latest technological advancements going on around the world.

I today got a similar call from PhonePe. But I am safe, not an issue.

Internet and crime

So, the question arises if the internet has facilitated the commission of various new forms of crime, can the service providers and intermediary be held liable as co-accused in those crimes? because by logic it’s the service providers and intermediary who facilitate the commission of these crimes. Can the concept of joint liability be made applicable here? Can we invoke Section 34 here? Prima facie if we go by a plain reading of the sections, let’s say for section 34 which reads as follows; “when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for the act in the same manner as if it were done by him alone.”

We can very well say yes by the definition of “person”, Facebook is an artificial person so it can be made liable. But the situation and the answers are not so simple to answer as it seems. Facebook may be termed as a “person” but what about the “common intention”. Here everything fails. How to prove the intention of Facebook, that intended to abet any crime?

Key ingredient to bring culpability

Even for abetment of suicide the key ingredient to bring the culpability is intention. Recently a similar incident took place in Tamil Nadu in the year 2016 where a 21-year-old lady’s morphed pictures were uploaded on Facebook due to which she committed suicide and the Tamil Nadu police moved forward to charge Facebook along with other accused under abetment of suicide. A complaint regarding the morphed picture was lodged on 23rd June 2016. The police sent a ‘Law Enforcement Online Request’, which is Facebook’s official system for requests sent by law enforcement authorities around the world, for the removal of the pictures and asking for the IP address of the offenders.

The morphed images were finally removed by Facebook on 27th June, but unfortunately the woman committed suicide on 26th June. It took nearly 4 days for Facebook to remove such illicit pictures from their database. And 4 days are more than enough for the worldwide circulation of such materials. Many people may have saved those pictures, many may have started circulating the morphed pictures on other social networking platforms like Whatsapp. So, the girl out of shame and disguise committed suicide. It clearly shows the lack of seriousness of Facebook in expediting the removal process, which is also their prime duty to do so.

Legal standing

The legal stand on the abetment of suicide is enumerated under Section 306 of the Indian Penal Code, 1860. One of the prime ingredients to prove and establish the abetment of suicide is ‘mens rea’, or ‘guilty mind’. This clearly states that in order to make and prove that Facebook is guilty of abetment of suicide, it needs to be first proved that Facebook deliberately & intentionally instigated the victim to commit suicide. The act of Facebook, which is its delay in acting fast and removing the morphed pictures even after receiving a request from the Tamil Nadu police, may have been done deliberately, with the intention that the victim commit suicide but this seems hypothetical rather practical.

It’s quite clear that Facebook could not have had this intention to abet the suicide of girl who they might even don’t know, who lives thousands of miles away from the Facebook’s office.

Here, we can take an example of the case of Ajay Patodia vs State of MP, in which a company refused to render a payment that they owed to the victim. The victim, was being harassed by other creditors as well for payment, so because of intolerable pressure and shame he committed suicide. The Court held that it is not possible to hold a company liable for abetment of suicide as there was no active suggestion or direct intention on the company’s part that the victim shall commit suicide. Similarly, here in this case as well we can say, Facebook did not in any way intended for the victim to commit suicide, there was no direct involvement of Facebook nor anybody from Facebook instigated the victim to go and commit suicide. Therefore, these charges will not hold apt. Rather the real perpetrators who uploaded such morphed pictures there in Facebook can be held liable to a great extent for the abetment of her suicide.

What at best could be done for breach of care?

Recently there came a change in law and policy regarding the removal of illegal/illicit contents. A few years ago, Facebook changed its policies regarding the removal of illegal content, like the illicit morphed images in this instant case. The new updated policies lay down that Facebook would only remove content that violated local laws and its community guidelines, but that it would not remove content that was not in violation of its guidelines without a direct order from the government or Indian courts.

This was based on an apex court’s judgment in 2015, which said that intermediaries, or websites like Facebook, would be obligated to remove illegal content within a time period of 36 hours only in case of receiving an official court or government order. Prior to this judgment, an intermediary had to remove any illegal content within 36 hours, on being told about it by anyone, including the victim themselves. The judgment provides a very narrow approach for facilitating the removal of illicit contents out of the walls of Facebook.

Current law

As per the current law, an intermediary who fails to do so would lose his immunity under Section 79 of the Information Technology Act, 2000. Now, an official court/government order is required, which can be very time-consuming to acquire. The official police request sent in this case does not count because of the obvious reason that Police are not court nor government. The result is that Facebook’s immunity in this case remains intact.

The act by Facebook of not removing the content on time may not constitute the crime of abetment of suicide, but is certainly an act of gross negligence, or a breach of the duty of care that Facebook owed to the victim and also to its users generally. To hold Facebook responsible for this particular act, it needs to first prove that Facebook lost its immunity.

Section 79 of the Information Technology Act imposes obvious responsibility of ‘due diligence’ on Facebook, and the violation of this due diligence can cost hard to Facebook by lifting its immunity U/s 79 of the Act. The 36 hours’ time period imposes a time frame in case of a court or government order, but surely that does not mean that the intermediary will take any amount of time to remove illegal content in the absence of an official order. The time frame shall be reasonable and shall not be arbitrary because these include very sensitive situations, where prompt actions are much needed.

The intermediary has a strict duty not to host any harmful content in its media. But as it was very clear that there was a delay of 4 days in removing the contents in this case, it shows a breach of this very duty. But if one can prove in the Courts agree that this delay can result in the loss of its immunity, it is possible to hold Facebook responsible for gross negligence in this particular case, but due to this existing judgment it will be difficult for the prosecution to do so. The judgment needs to be reinterpreted in a wider sense.

Today we all live in a Cyber World where every moment that such an image remains published online only increases the number of people who can view the image. There is also nothing to stop a viewer from retaining a permanent copy of such images, he can save it in his memory sticks, may forward the same through other means, etc.

Action against such illicit content has to be instantaneous. Governments around the world should mandate that Facebook shall adopt greater responsibility towards its users and the community at large. Facebook itself ought to either commit to a time frame for the removal of such content, or should make a provision for emergency cases. It should look forward to formulating a system where the users can report any such illicit materials and then it can take actions against those materials & moreover it should develop its own mechanisms to sense these types of illicit and objectionable materials.

Also read: Know how to lodge a cyber crime report online

Additionally, the Supreme Court’s limitation on the obligation to remove illegal content within 36 hours of an official court/government orders should be reconsidered, or at least expanded to include requests from law enforcement agencies like the Police, because these cases need immediate, instant actions and whenever a crime take place any person first reaches out to the police and nobody goes to the court first. It may be a question of life for somebody so these matters require instantaneous actions and prompt solutions. The Internet has always been a boon for mankind but in today’s date it is also being used as a great tool to commit various novel kinds of offenses that our penal laws also are failing to recognize. So, the responsibility is on the courts to interpret the laws in such a manner so as to protect the rights to the greatest extent.

Chiranjeev Jena
A Fourth Year Student pursuing B.A. L.LB from KIIT Law School and a Judiciary Aspirant. I am a keen observer and for me writing is a means of reflecting and conveying my thoughts to the people and make them aware, about the same.

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