Virtual life is free, fun and, should we say for a few, ?fake?. People love to create identities on websites. Though it has never been researched but, if evaluated, fake profiles would consume substantial space on social networking sites? server space. A fake profile, per se, is not illegal, if it is not used to commit an offence. However, if the offence is committed, fake profiles do have evidentiary value. For the purpose of this article, let us assume that the profiles have been created for fun and no offence is involved.
Social networking sites have been categorised as intermediaries under Indian law. Intermediaries by definition mean that they do not provide their own content. Rather the owners provide the content and the social networking sites merely facilitate posting of such content. The relevant guidelines applicable to intermediaries are also silent on the issue of fake profiles. Notable exceptions being (a) impersonation; and (b) information belonging to any other person, which the intermediary is required to remove.
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The only connect netizens have with a social networking site is the sites? terms of use. Terms of use generally stipulate that the user will not post false information on social networking sites. The author is yet to meet a user who reads the terms of use of a social networking site, and he presumes that the users generally (if not all the users) do not read the same. Though the users do not read the terms of use, once they click the ?I agree? button (or a checkbox), they agree to the terms. As per the provisions of the Information technology Act, 2000, checking a checkbox or the ?I agree? button amounts to a valid contract. Therefore, once a contract is concluded, the user is bound by its terms, and he is restricted from posting a fake profile. In the event the social networking site becomes aware of a fake profile, then the site may remove such user.
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Practically, the site cannot do much when it comes to sanitising itself with respect to fake profiles. There are certain sites that allow for screening of posts. However, such screening relates only to texts which are offensive. Even the law does not require the sites to undertake due diligence in such instances. The instances that require due diligence do not include posting a fake profile if the same does not amount to the exceptions above. Therefore, the sites may only rely on their limited due diligence or reporting by other users. In general, social networking sites take these issues seriously. The reason being that a fake profile may lead to offence like impersonation. However, considering the ingenuity of the users and the challenge thrown by the large number of users, the task of tracking such profiles is daunting.
People post fake profiles on social networking sites because social networking is not a serious business. Social networking is not akin to something like creating a user profile on a bank website. Unlike a social networking site, the financial institutions are required to follow the know your customer (KYC) norms. KYC is required to authenticate user details like address or identity to prevent incidents of money laundering etc. On a social networking site, if the idea is to merely interact then, understandably, KYC has never been considered. However, in the instances where the social networking sites would act as intermediaries and allow the commercial transactions, say paying for digital coins for an online game, KYC may become relevant. However, sans commercial transactions introducing KYC norms may be counterproductive for the sites. Users who join the sites for leisure would not like to have a same experience like registering their profile on a financial institution?s website. Further, with rapidly shifting user loyalty, KYC may result in loss of internet traffic.
A toned down KYC may still help. Users may be prompted to provide a unique authentication method. For instance, confirmation by email ID as well as by phone number. In the alternative, the users may also be asked to provide at least one unique identity number; for instance, the PAN. However, the way data will be collected, secured and protected and the possible loss of internet traffic may be evaluated before the sites adopt such policy. In the event the user is engaged in any illegal activities, these steps may also help nab such users.
Internet is fascinating and free. What is required is to ensure that the users use the freedom with responsibility and the sites have checks and balances to prevent the violation of the terms of use and the law of the land.
The author is a lawyer at J Sagar Associates. Views are personal
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