Govt servants' social media space - checkmate or drafting conundrums!!

Ngangom Junior Luwang *

The recent Office Memorandum of August 10, 2022 issued by the Govt. of Manipur, seeking to restrict Govt. Employees' social media space, stands out for 5 different reasons –
(a) apparent blanket ban on Govt. employees to be part of questionable social media groups (without, however, scheduling such groups),
(2) overlaps with existing Rules & incongruities (howsoever unintended),
(3) drafting ambiguities & interpretation issues,
(4) definite time-line of 6 PM of August 12, 2022 for Govt. servants to log out and
(5) no definite benchmarking for questionable social media classification and red flags for Govt. employees.

The above position notwithstanding, Government's intent on not allowing Govt. employees' involvement with sensitive social media discourse (otherwise already regulated) is loud and understandable. Nonetheless, the said notification, instead of further strengthening or clarifying the position, has infused serious absurdities, mostly borne out of drafting challenges, leaving enough room for misinterpretation:

(1). India already has enough laws for regulating Govt. employees' access to and participation in social media discourse. While Rule 5 of the All India Services (Conduct) Rules, 1968 and Central Services (Conduct) Rules, 1964 bar Govt. employees/civil servants from taking part in politics and elections, Rule 7 of the Central Services (Conduct) Rules, 1964 bars a Civil servant from joining demonstrations and strikes.

More specifically, Rule 7 of the All India Services (Conduct) Rules, 1968 and Rule 9 of the Central Services (Conduct) Rules, 1964 prohibits Govt. employees/civil servants from indulging in activities amounting to criticism of Govt.

In fact, it was as recently as May 26, 2022 that social media outfits like Twitter or Facebook are required to identify the "First Originator" of any questionable information, apart from other Regulations requiring appointment of local company officials, obligation to take down sensitive content.

In the midst of all such existing and evolving legal framework to regulate the media qua Government servants, the question is whether the Notification in question provides anything new or novel? To me, the answer is in the negative, except for the much debatable deadline of 6 PM, August 12, 2022.

(2). While the first paragraph of the said notification refers to the so-called questionable formal and informal social-media groups, none has been identified by way of scheduling any such group(s). It is a fact that no such exhaustive list exists but the Notification has been apparently issued, presuming otherwise.

Of course, it is impossible to annex such an exhaustive list, but at least either a definite criteria for such a classification or an evolving list of de-notified social media groups could have been indicated or progressively put in public domain.

Given this position, the said Notification could have the undesirable effect of a perceived blanket ban (howsoever unintended) on Govt. servants' membership of social media groups and consequent mass exodus from such groups, with serious freedom of expression [Article 19(1)(a)] infraction implications.

Such an interpretation could arguably leave Govt. employees even questioning the propriety of membership of even social media groups of childhood friends/college alumni or professionals in as much as such an otherwise normal group could be suddenly filled with an arguably communal or divisive content (intended or otherwise) at any point of time.

The question is the triggering point - what is his/her right time to exit - 6 PM of August 12, 2022 or as and when any questionable message or clip springs up!.In any event, are we then taking out the whole social media space from Govt. employees at the cost of their valued constitutional freedom of expression, something plainly unfair & legally challengeable?

(3). Second paragraph of the notification makes a specific reference to agenda driven social media groups, spreading falsehood, circulating audio and virtual hate speeches, seemingly seeking to generalize and paint all social media groups with the same brush and criminalize them in as much as almost such groups are at one time or the other had/has such a content – mostly as a matter of public discourse.

Such a paragraph could confuse Govt. servants and lead them away from social media groups, howsoever genuine or harmless. Which Govt. employee in his/her right sense would wait for sensitive/bad content to come up to exit a social media group at the cost of his or her valued career! Here, the best course of action would be not to require a Govt. servant to exit a group even if a questionable message or audio/video clip springs up, but to report the issue to a competent law enforcement agency, without exiting the group.

(4). The third and fourth paragraphs of the Notification reflect Govt.'s apparent knowledge of many Govt. employees' participation, directly or indirectly, in questionable social media groups, without even defining what exactly could be tantamount to direct or indirect participation.

Here, a completely avoidable ambiguity has been created (howsoever inadvertent) on whether the bar on Govt. servant's membership (howsoever dormant) of a social media group is instant or as and when such so-called direct or indirect participation takes place! The Notification in question, howsoever unwittingly, seems to suggest the former, thanks to poor drafting and inaccurate verbiage.

(5). Even if the Notification in question is interpreted either way - to require a Govt. servant to log out of identified/easily identifiable questionable social media group before 6 PM, August 12, 2022 or as and when a questionable post comes up, the fact remains that invariably every social media content- be it Twitter or Facebook or even WhatsApp- is inundated with politically/communally sensitive or false and defamatory narratives every now and then.

Such a scenario itself will then take us to paragraph (2) circumstance. The issue will be further confounded by the factum of one's subjective judgment of the social media content; what is an innocent message for a Govt. employees could be ultra-sensitive to the political dispensation in power. Needless to say, such a position will be certainly untenable for a liberal democracy like India i.e. to bar Govt. employees from social media space, which otherwise is a very effective tool for information sharing.

I was looking for precedents in India and outside India, but I am yet to come across any rule or law, either completely barring Govt. employees from joining questionable social media groups (without scheduling or laying the relevant criteria) or requiring such employees from exiting such a group as and when a questionable post comes up. Western democracies like the US and UK are very liberal on this issue, though the issue is little different when it comes to classified information.

(6).The fifth and sixth paragraphs of the notification only add to the confusion in as much as the contents thereof seem to suggest that membership of social media groups is itself a breach of relevant service rules mentioned therein with a timeline of 6PM of August 12, 2022 set for exiting such groups.

This is the most disturbing part of the Notification in as much as no social media regulation in India (Central or State), at least to my knowledge, has such a stipulation. Such a stipulation could have made some sense had there been a duly scheduled exhaustive list of such questionable social media groups, but paragraph sixth seems to leave it to a Govt. servant's subjective and risky discretion (which could be different from the Govt. position) as to whether a social media group or any content thereof is actionable or otherwise.

Here lies the techno-legal dichotomy, which practically takes us to the scenario of a possible blanket ban implication on Govt. servants joining social media groups on account of the group's past or present bad antecedents (which most social media groups arguably are at one time or the other).

(7). Most importantly, the Notification in question could also have the undesirable collateral effect of the Govt. losing its eyes and ears vis-à-vis social media transgressions, should Govt. employees be so barred point blank.

To this extent, the best course of action would be to maintain the status quo i.e. clear bar on Govt. employees from posting, sharing sensitive posts, audio/video clips etc., but making it mandatory for Govt. employees to report any such sensitive posts, without requiring them to exit social media groups.

Of course, if a group is in substance an agenda driven socially divisive group and so officially identified, it will be a different story and there is no question of allowing any Govt. employee to join any such group in the first instance, a position which will remain the same with or without the Notification in question.

Indeed, the disinformation menace via social media is a fast evolving phenomenon and the Central Govt. is catching up with its own sets of laws. Reportedly, at least 30 attempts are made everyday by foreign agencies to hack into India's official systems for classified information and for this, the Ministry of Home Affairs, Govt. of India has issued the National Information Security Policy & Guidelines.

Even on this issue of classified information and Govt. employees' access to and participation in social media, the Notification in question does not alter the status quo, except for the deadline of 6 PM, August 12, 2022, which is unprecedented and unheard of and of course, clearly avoidable.

For a more effective regulation of sensitive and bad social media content, it would be more advisable to regulate social media companies more effectively by insisting on time-bound removal of sensitive content, instead of breathing down on Govt. employees' necks. This is exactly the Govt. of India has been doing the last some years, though the extent thereof is being questioned, just as Twitter has impugned some of such restrictions.

In any case, for gross transgressions, the Manipur State Assembly can summon Social Media company representatives and call for explanation for bad/sensitive social media content, legality of which has been upheld by the Hon'ble Supreme Court of India in Ajit Mohan and Ors. Vs. Respondent: Legislative Assembly, National Capital Territory of Delhi and Ors., (2022) 3 SCC 529.

In a nutshell, the Notification in question (howsoever well-intended) smacks of an amateurish attempt by a set of legally illiterate bureaucrats or a half-backed lawyer (with no statute drafting experience) or a combination of both.

It is indeed high time for the State Government to take assistance of experienced lawyer(s), with credible experience of drafting legislations for the Central Govt., lest wrong messages could go to the people and an otherwise well-intended legislation can be misconstrued.