Social Media Concerns

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Social Media Concerns

Sharing of views on Facebook

“With all respect, every day, thousands of people die, but still the world moves on, Just due to one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.”

The above lines that questioned the shutdown of Mumbai following the demise of Shiv Sena Supremo Bal Thackeray were posted on Facebook by a Mumbai girl named Shaheen Dadha and liked by another named Renu Srinivasan which led to their arrest on November 19, 2012. This incident of arrest under Section 66A(a) of the IT Act for allegedly sending a ‘grossly offensive’ and ‘menacing’ message through a communication device rocked the nation.

Section 66A of the IT Amendment Act 2008

It states that any person who sends, by means of a computer resource or communication device

(a) Any information that is grossly offensive or has menacing character

(b) Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal, intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) Any electronic mail or electronic mail message for the purpose of causing annoyance or      inconvenience or to device or to mislead the address or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Anyone involved fetches a punishment of a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

The Consequences of Misinterpretation

Several PILs have been filed challenging the constitutionality of Section 66A which is believed to curb freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution. These petitions further contends that the expressions used in the Section are “vague” and “ambiguous” and that 66A is subject to “wanton abuse” in view of the subjective powers conferred on the police to interpret the law.

Although the Union government defended the constitutionality of Section 66A relying first on the “Advisory on Implementation of Section 66A of the Information Technology Act 2000” issued by the Department of Electronics and Information Technology on January 9, 2013 to the Chief Secretaries and the Director General of Police of all States/UTs, the advisory asks State governments not to allow the police to make arrests under Section 66A of the IT Act without prior approval from an officer not below the rank of Inspector General of Police in the metropolitan cities or Deputy Commissioner of Police or Superintendent of Police at the district level. However, this advisory is clearly not sufficient as political interference in law enforcement is well known and the arrests, as shown below, have not abated.

Like the arrest of Sanjay Chaudhary on February 6, 2013 under section 66A of the Information Technology (IT) Act for posting objectionable comments and caricatures of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav on his Facebook wall. This arrest follows numerous others over the past few months for political speech through social media: Manoj Oswal for having caused inconvenience to relatives of Nationalist Congress Party chief Sharad Pawar for allegations made on his website; Jadavpur University Professor Ambikesh Mahapatra for a political cartoon about West Bengal Chief Minister Mamata Banerjee, etc.

Incorrect Basis

The Centre has further sought to justify the legality of Section 66A, introduced in the 2009 amendments to the IT Act, on the ground that it has been taken from Section 127 of the U.K. Communications Act, 2003 which is itself a hugely controversial legislation in the U.K. for its chilling effect on speech. It is particularly relevant in India where the ‘hurt sentiments’ of particular groups (or of individuals purporting to represent particular groups) is viewed by the state as sufficient to take criminal action against speech and expression.

In fact, Section 66A is very different from Section 127 which, moreover, has been read down by the House of Lords on the grounds that Parliament could not have intended to criminalise statements that one person may reasonably find to be polite and acceptable and another may decide to be ‘grossly offensive.’ There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. Most importantly, that whether a message was grossly offensive did not depend merely on the degree of offence taken by the complainant but on whether it violates the basic standards of an open and just multi-racial society.

As mentioned earlier, the Section 66A(a) refers to the sending of any information through a communication service that is ‘grossly offensive’ or has ‘menacing character’. Now, in the U.K., Section 127(1)(a) makes the sending of ‘matter that is grossly offensive or of an indecent, obscene or menacing character’ an offence. Therefore the meaning of the term “grossly offensive” in both Section 66A(a) and Section 127(1)(a) is crucial and remains yet undefined in India. So, on what basis are the police department making arrests? It is definitely the factor of nepotism which is driving these arrests.

Section 66A(b) is even more problematic than Section 66A(a) because it makes an offence of sending through a computer resource or communication device “any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device.” Surely it cannot be a legitimate legislative objective to restrict freedom of speech in order to prevent annoyance or inconvenience? Can a democratic society criminalise the causing of annoyance, inconvenience, insult or ill will? Causing insult or ill will or enmity could be a criminal offence if it amounts to defamation. However, insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual world.

While Section 66A(b) of the Indian IT Act has unbelievably lumped causing annoyance and inconvenience in the same Section as criminal intimidation and made it subject to the same punishment, Section 127(1)(b) of the U.K. Communications Act is limited to the sending of a message that he knows to be false “for the purpose of causing annoyance, inconvenience or needless anxiety to another.” Section 127(1)(b) itself has been copied from the Post Office (Amendment) Act 1935 in the U.K. and it is very surprising that in the Internet age, not only have British lawmakers sought fit to copy from what is clearly outdated legislation, even worse, their Indian counterparts are so neo-colonial in their drafting that they even copied the British mistake of applying 1935 legislation for one-to-one postal communications to social media despite the much greater chilling effect on free speech.

Ironically, the Indian government defends Section 66A by saying it has been copied from Section 127 of the U.K. Act, while in the U.K., there are calls for repeal of this Section in order to ensure compliance with Article 17 of the European Convention on Human Rights. Instead of defending Section 66A on the grounds that it has been copied from U.K. legislation, the Union Government should take inspiration from the House of Lords’ view about what is ‘grossly offensive.’ This is the 5

standard that should have been incorporated in the advisory issued by the Department of Electronics and IT.

Section 66A certainly does not engage in the delicate balancing required to pursue the legitimate objective of preventing criminal intimidation and danger through social media without going no further than required in a democratic society to achieve that end. The drafters of Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world. Therefore, the legislative restrictions on freedom of speech in Section 66A(b) cannot be considered as being necessary to achieve a legitimate objective. Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech.

The Complication

There have always been questions on the legality of the Sections 66 and 67 since its inception. Although the government tried to consider everyone’s view to come to a solution by employing a 3-point approach and thus amending the Act in 2008. But still there has been a lot of hue and cry recently about its misuse. It is already time that the government should come out with measures with the help of judiciary to modify and frame the Sections and thus cater to the problem being faced by the society. With citizens enriched with vivid generic knowledge especially the ‘Echo boomers’ of 21st century, it will be difficult for the government to handle the mass if not taken care of immediately. Moreover, if political speech, that is, criticism of politicians and exposure of corruption continues to be punished by arrest instead of being protected, India's precious democracy and free society will be no more.