In an anti-climatic order, the Supreme Court of India on May 16, 20131 directed all the States and Union Territories of India to ensure that the advisory issued by the Government of India on January 9, 20131 ("Advisory") be complied with, but did not provide any further restrictions or guidelines on the application of Section 66A of the Information Technology Act, 2000 ("Act").
The Advisory states that the State Governments are directed that with respect to arresting any person in regard to a complaint registered under Section 66A of the Act, the concerned police officer of a police station under the State's jurisdiction, may not arrest any person until he/she has obtained prior approval of such arrest from an officer not below the rank of the Inspector General of Police in metropolitan cities or Deputy Commissioner or Superintendent of Police at the district level2. The Advisory was first issued as a pacifying measure to the public outburst after two girls were arrested, one for posting an opinion on Facebook while the other had merely liked the post3.
India has approximately 150 million internet users4. When you consider with the number of internet users today the 900 million mobile users in India5, it constitutes a sizeable portion of the Indian population, with tremendous opportunity to cash in on. The growing reliance on the internet and social media, whether for business, as a forum to project our thoughts and opinions, or for keeping in touch and interacting with friends and family, is increasingly becoming an indispensable part of modern Indian living. Interestingly, the Act was first introduced for the purpose of providing legal recognition to transactions carried out by electronic means, and to facilitate the electronic filing of documents with Government agencies. It was amended in 2008 to broaden its scope, introducing provisions that deal with cyber security and combating cyber terrorism. It also aimed at regulating speech and expression on the internet and thereby increased the mandate of the Act. This was followed by the introduction of the Information Technology Rules in 2011, which further increased the requirements to be adhered to by content providers, and augmented the powers of the Central Government with respect to its control over the activities on the internet.
Of all the amendments carried out to the Act, Section 66A introduced in 2008 has been the centre of widespread debate regarding freedom of expression on the internet and the boundaries such freedom should encompass. Section 66A states that any person who sends, by means of a computer resource or communication device, any information that is grossly offensive or has menacing character, or which he knows to be false but does so for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, can be punished with imprisonment for a maximum term of three years6.
When used with the right intention and keeping with the spirit of democratic law, Section 66A can prove to be a useful tool to curb the transmission of crude photographs, including nudity and pornography, explicit messages sent to cause discomfort, which can unanimously be classified as being offensive in nature7, or when a person or group of persons use communication devices to promote enmity and hatred or use electronic mail for sending emails under assumed names8. However, in its current form, whether someone has used a communication device to incite enmity or hatred among communities, or has merely posted something that could be construed as offensive only by a single person on his or her personal online page, or out of an act of frustration, an impulsive release of anger or a knee jerk reaction, they will be faced with the same punishment under this Section 66A of the Act. There is no differentiation provided for varying degrees of acts that can be committed under this section.
Further, while Section 66A(b) clearly states that the information must be false, and Section 66A(c) states that the electronic mail must mislead the addressee or recipient, Section 66A(a) remains ambiguous in its wording as well as implementation. Section 66A(a) states that the information should be "grossly offensive" or must have a "menacing character" but does not define what either of these terms mean and neither does any statute or advisory by the Central Government provide for valid interpretations or the scope of the section. Section 66A(b) on the other hand provides for merely causing inconvenience, annoyance or insulting another person as being a criminal act. Hence, if you were to use cuss words in a fit of anger or annoy another person or inconvenience another person, albeit justifiably, you can be held criminally liable. Section 66A is continually being misused to stifle the basic freedom of expression of people, and prohibiting them from being vocal about their opinions, views and judgements, and if a person dares to uphold the principles of democracy and free speech, he can be greeted by arbitrary arrests and legal proceedings being initiated against him.
In addition to the broad nature of the section in its entirety, a particularly stifling characteristic of Section 66A(a) is the fact that even if the post, writing, drawing, or speech is true in nature, if it offends the sensibility of another person, he can be held liable under the Section 66A and face imprisonment of up to three years. With no guidelines as to what constitutes being grossly offensive or having a menacing character, it is left to the judgement of a police officer to decide whether a complaint can be registered under Section 66A of the Act. Further, the Act does not take into consideration the diversity of the Indian society and the difference in culture across the country. In a country as populous and varied as India, what might be grossly offensive to a person in a smaller city might not be to a person who is born and bred in a metropolitan city. The difference in levels of tolerance, the lack of exchange among dissimilar societies and the hostility that might exist among two people or communities or personal agendas and motivations to incriminate another person, or lack of tolerance to criticism9, can all be used to abuse the rationale behind incorporating Section 66A into the Act.
In its current form, whether someone has used a communication device to incite enmity or hatred among communities, or has merely posted something that could be construed as offensive only by a single person on his or her personal online page, or out of an act of frustration, an impulsive release of anger or a knee jerk reaction, they will be faced with the same punishment under this Section 66A of the Act
Further, before the advent of technology, and increased use of the Internet, it required considerable time, effort and money to defame another, since it required the use of the printing press or telegrams etc. for establishing the publication requirement of defamation. However, with the increasing use of social media, and the ease of availability of the Internet, today a person may tweet on his Twitter account, or write a blog post, or send a post to all his Facebook friends, defaming another. Hence, while Section 66A of the Act aims to curb messages that are grossly offensive or cause annoyance to another, an analogy to how Section 66A is being interpreted today already exists in the defamation action available under the Indian Penal Code10.
Today, the Advisory and the subsequent order of the Supreme Court directing State Governments and Union Territories to follow the same, give the power of interpreting Section 66A of the Act completely to a single police officer, who will be the authority to decide whether a certain thing is "grossly offensive" or has a "menacing character", and that for the sake of the principles of democracy, one has to assume is unbiased, fair and adept to judge the reactions and tolerance levels of the society. The Advisory or the subsequent Supreme Court order however does not provide any clarity on the Section 66A and the wordings of the same continue to remain vague and subject to an individual's preferred interpretation.
Considering how Section 66A can be widely interpreted, many people have been arrested for tweeting an opinion11, for drawing a caricature that hurt the sentiment of an overtly sensitive person12, or for criticising the governance of politicians13. It has become imperative for the Government to revisit it and provide clarity as to the meanings of the terms used therein and amend the same to provide for a narrower and more succinct application. For example, today, if you were to post a photograph of a famous painting that depicts nudity, or were to have a discussion on the anatomy of human beings, while for most people, it would constitute art and science, for others, it might be grossly offensive and thus an action may lie under Section 66A of the Act. Further, while there exist various other sections in the Act as well as the many sections in the Indian Penal Code, 1860, penalising similar acts committed by people, Section 66A of the Act can be deemed to be an essential evil that regulates the activities on the web space while allowing responsible exercise of freedom of speech and expression, only if and when it is construed clearly and unambiguously. The Government might also look at making an offense under Section 66A of the Act a non-cognizable offense which would require a court order to lodge a FIR and detain a person, thereby taking away the arbitrariness and free reign that the current section provides an interested party with to file a complaint and the power it gives to a police officer to single-handedly decide whether something falls under the purview of the section or not. In the meantime, one can only hope that the Supreme Court provides some valuable guidance as to the parameters and operation of the dreaded and draconian Section 66A of the Act.
Footnote: 1 Advisory on implementation of Section 66A of the Information Technology Act, 2000 dated January 9, 2013; No. 11(6)/2012-CLFE issued by Department of Electronics and Information Technology, Government of India; 1 Shreya Singhal v. Union of India; W.P (Criminal) 167 of 2012; order dated May 16, 2013; 2 Department of Electronics and Information Technology, Government of India, No. 11(6)/2012-CLFE; dated March 18, 2013; 3 Arresting someone for web content gets tougher; DNA; May 17, 2013 available at http://www.dnaindia.com/india/1835801/report-arresting-someone-for-web-comment-gets-tougher; 4 2013 India Internet Outlook; Sandeep Aggarwal; February 1, 2013; http://techcircle.vccircle.com/2013/02/01/2013-india-internet-outlook/; 5 http://pib.nic.in/newsite/erelease.aspx?relid=85669; 6 Section 66A - Punishment for sending offensive messages through communication service, etc, 1[Any person who sends, by means of a computer resource or a communication device,- (a) any information that is grossly offensive or has menacing character; or (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, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee 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. 7 Karan Girotra v. State & Anr.; 2012(2)JCC1314; 8 J.R. Gangwani and Another v. State of Haryana and Others; Special Leave to Appeal (Crl) No(s).1878/2013, order dated March 15, 2013; 9 Publisher Threatens to Sue Blogger for $1-Billion; The Chronicle of Higher Education; Jake New; May 15, 2013 available at http://chronicle.com/article/Publisher-Threatens-to-Sue/139243/; 10 Section 499 Defamation.—Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. 11 IAC volunteer tweets himself into trouble, faces three years in jail; Priscilla Jebaraj; The Hindu; November 1, 2012; 12 Professor arrested for poking fun at Mamata; Hindustan Times; April 13, 2012; 13 PUCL activist held for posting ‘objectionable’ jibe on Facebook; The Hindu; May 13, 2013
Disclaimer-The views expressed in this article are the personal views of the authors and are purely informative in nature.