The Evolution of Law with Technology
Updated: Oct 5, 2021
It was in the year 1998, that I had gone on a family trip to Singapore. I remember, my elder brother searching desperately for a Cybercafe and I remember him telling me that he wanted to use the Internet. I was too uninitiated and too young to care about what my brother was trying to do. My interests at that time lay in the other beautiful aspects of Singapore. But, no later than 2 years after this incident, I got myself an email address and then shortly thereafter, started the age of chat rooms and messenger applications.
Yahoo messenger and MSN messenger were the most popular messaging applications on the desktop computer, in the early 2000’s to my recollection. So, getting a Yahoo email ID and an MSN ID or a Hotmail ID became essential. You had friends who were either on Yahoo or Hotmail or both. When I started my Bachelor’s degree studies, we had created a Yahoo group for communication and coordination among our classmates. That Yahoo group actually continued for quite some time, where we also started sharing interesting email ‘forwards’. These email ‘forwards’ contained interesting information or jokes or some kind of plea, et cetera. In the early 2000’s or even in the mid-2000’s, we used to use a lot of SMS messaging. The mobile telecom companies also had come out with packages that allowed unlimited outgoing as well as incoming messages. With these kinds of packages, especially the younger generation who had new access to mobiles started using the SMS messaging extensively.
I remember vividly that till the mid-2000s, laptop computers were also scarce in India, among the school going and even the college-going student population. They seem to be reserved only for business professionals or for those who worked in the IT industry. Desktop computers were what most people used. While these messaging apps on the desktop computers were popular, and SMS messaging was in vogue, there came a revolution of sorts in the form of an online platform called Orkut. On this platform, one could create a profile, connect with their friends and write on each other’s walls. There were also focused forums on which, you could post your own thoughts and messages and have discussions. You could join these forums and basically connect with anyone from anywhere in the world. At the same time, another platform called MySpace had become popular in other parts of the world, which, more or less offered the same features that Orkut did.
Whilst these applications were being used, another ‘network’ was being developed at Harvard University. This network came to be known as Facebook. There is a lot of controversy about how the actual development of Facebook came to be and whose idea it was initially. Whatever that might be, the intention of Facebook initially was to connect Harvard University students with each other. Thereafter, slowly and steadily the Facebook network grew to include students from other universities in the USA. To join Facebook, you had to have an email address from an American university. When I joined Facebook in the year 2007, I joined it with my email ID issued to me by my university in the USA. Much later was I able to change it to my personal email ID, when Facebook was opened up to all who wanted to join it.
As time went by, the popularity of Facebook grew and that of Orkut decreased until such time as it shut down completely. Now, the existence of these social media platforms is all-pervasive and extremely widespread. We can now even see babies tapping phone screens to play some video or audio. With the latest technology, and especially during the COVID-19 pandemic, grandparents and older parents benefited tremendously from the videoconferencing and video calling applications on their phones and tablets. The involvement of social media or these social networks in our daily lives has now become almost inseparable and it is impossible to imagine a life without these social networks.
The reason for going through the history of these social media networks is to understand how technology has aided in these social networks becoming an inseparable part of our daily lives. The more advanced the technology is, the more complex is the nature of its implementation and the scope of its implications on the relationship between the user and the service provider. In India, the Information Technology Act was enacted in the year 2000 and in the year 2021, what are popularly known as the Social Media Rules were enacted and were brought into force. The General Data Protection Regulation (GDPR) became applicable since 25.05.2018 and the California Consumer Privacy Act (CCPA) came into force in July 2020. The legislatures around the world are constantly on the move to ensure oversight and control or even management of these social media platforms or rather, online platforms. It is now generally the convention that when one refers to ‘social media’, it has to refer to something that is online on the Internet. But, that cannot be so. A differentiation has to be made between something that is online and something that is also social. Something may be social but not online. Even for these social networks, it is required that a differentiation be made between something that is just a social network and something that is an online social network. However, all the same, there are some platforms like Facebook which are now not just online social networks but are also media for broadcasting audio and visual content. There is a new concept now of ‘social commerce’, where these online social networks will incorporate an e-commerce element in the user interface. The user experience will develop into something much more than just connecting with your friends or influencers or any company that you may follow. It will become much more inclusive and even more invasive.
The nature of our interaction with these online platforms is literally ever-changing and ever-evolving. This domain is new for all the legislatures around the world, and it is uncertain whether the legislatures would be able to keep up with such a fast, ever-evolving domain. When laws are made, they are the collective conscience of the society at a particular time. However, the collective conscience of today’s society keeps on changing because of the changes in technology and because, today, so many people spend several hours in a day on their mobile phones or even on their computers, working or even just going through these different online platforms. It is difficult to classify these online platforms as just social media or just social networks because they’re evolving into something that is much more and something that is not yet defined. The advancement of technology makes it possible to incorporate so many different features on one platform that the classification of a platform into one category is challenging. We hear discussions on Augmented Reality, Virtual Reality, Immersive Reality and even Mixed Reality. The potential is exciting but the implications for Society, from a legal perspective, are scary; because they have also the potential to become very complex.
Law is based on definitions and descriptions and how these apply to our lives. If the definitions themselves become challenging to narrow down, coming to a consensus on the collective conscience of the society at a particular time becomes even more difficult. Ultimately, the question begs the answer as to what exactly is the collective conscience of the society? We have had several protests regarding the Social Media Rules of 2021 in India and there have also been protests regarding the content put up by different entities or people on many of these online social networks. One section of society believes that people have the freedom to post whatever they like online, so long as they don’t mind it and that it is their life and it’s their fundamental right of freedom and expression. Another section believes that since you live in a society, you have to live by the rules of that society. But the challenging part here is, who decides the rules of the society at that time? The fundamental right of freedom and expression under the Constitution of India is not at all absolute and there are restrictions upon it. The crux of the matter is to define the scope of those restrictions.
There are several other aspects that come into play when we are online. We interact with social networks, OTT platforms and e-commerce websites. There are several other websites of different companies, NGOs, government websites, et cetera. However, what I am referring to here are the websites where there is a give-and-take between the user and the service provider. For example, on the OTT platforms, the give-and-take is that of the user paying the subscription fee and the platform providing the user with the video or the audio as demanded. On e-commerce websites, the give-and-take is that of the user paying the selling price and the e-commerce platform ensuring that the product that is paid for, is delivered to the customer as advertised and as promised. Considering these aspects of our interactions, there are several thoughts that come to mind about the legal aspects of these interactions. The Consumer Protection Act, the Sale of Goods Act, the Copyright Act, the Trademarks Act, the Contract Act, et cetera and many more will come into play.
The legal implications of our interactions with so many of these online platforms are vast and sometimes even worrying. Hardly anybody looks at the terms and conditions of the user agreement before using any particular platform and then when they come to realise that something in the user agreement is not to their liking, there is an uproar. However, one of the fundamental principles of law is that the law does not help the one who sleeps over his rights or the one who is negligent.
I personally believe that the Social Media Rules of 2021 or rather, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are a step in the right direction, but more, and at the same time simple, clear and comprehensive litigation is required to deal with the complexity of our interactions with the online world.