SOCIAL MEDIA AND INDIAN CYBERLAW

SOCIAL MEDIA AND INDIAN CYBERLAW BY PAVAN DUGGAL ADVOCATE, SUPREME COURT OF INDIA HEAD, PAVAN DUGGAL ASSOCIATES In India, there has been a lot of controversy over the last few months over Section 66A of the Indian Cyberlaw being the amended Indian Information Technology Act, 2000 on different occasions. In Professor Ambikesh Mahapatra case, Professor Ambikesh Mahapatra was arrested on account of forwarding of caricature/cartoons on Facebook. Further, Ravi Srinivasan Twitter case showed how on a complaint, a person’s tweets could be brought within the ambit of Section 66A of the amended Indian Information Technology Act, 2000. In K V Rao case, two men K.V. Rao and Mayank from Mumbai, were arrested for allegedly posting offensive comments against some leaders on their Facebook group. The recent case pertaining to Shaheen Dhada, where two girls were arrested for Facebook post and its liking respectively, has become the talking point for all users. In the last few days, we have been seen various discussions about defective IT legislation in India and how there is a need for changing the same. This article aims to explain in common man's language what is Section 66A of the amended Indian Information Technology Act, 2000 all about? Section 66A makes it an offence when you send, by means of a computer resource or communication device, any of the following information: 1) any information that is grossly offensive; 2) any information that has menacing character; 3) any information which you know to be false but which is sent for purpose of causing annoyance; 4) any information which you know to be false but which is sent for purpose of causing inconvenience; 5) any information which you know to be false but which is sent for purpose of causing danger; 6) any information which you know to be false but which is sent for purpose of causing obstruction; 7) any information which you know to be false but which is sent for purpose of causing insult; 8) any information which you know to be false but which is sent for purpose of causing injury; 9) any information which you know to be false but which is sent for purpose of causing criminal intimidation; 10) any information which you know to be false but which is sent for purpose of causing enmity; 11) any information which you know to be false but which is sent for purpose of causing hatred; or 12) any information which you know to be false but which is sent for purpose of causing ill will. All the above as per (3) to (12) must be done persistently by using a computer resource or communication device. 13) any e-mail or electronic mail message for the purpose of causing annoyance; 14) any e-mail or electronic mail message for the purpose of causing inconvenience; 15) any electronic mail or electronic mail message to deceive the addressee or recipient about the origin of such messages; 16) any e-mail or electronic mail message to mislead the addressee or recipient about the origin of such messages. So if you are a social media user or even if you are a user of a computer system or mobile, be careful! You could be brought within the ambit of this Section 66A of the amended Indian Information Technology Act, 2000. To help understand the scope of Section 66A of the amended Indian Information Technology Act, 2000, let’s try to examine some common illustrations of acts, which could come under Section 66A of the amended Indian Information Technology Act, 2000. When you send either by means of a Computer, Computer System, Computer Network or using Mobile Phone, Smart Phone, iPhone, iPad, Tablet, Smart Devices, Personal Digital Assistants, BlackBerry or any other communication devices, the following kind of information, you could be covered under Section 66A of the amended Indian Information Technology Act, 2000:- 1) If you swear or abuse somebody, the said swear words could be said to be grossly offensive. The same could also be said to be having menacing character and your act could come within the ambit of Section 66A(a) of the amended Indian Information Technology Act, 2000. 2) Anything defamatory which affects the character, reputation, standing or goodwill of a person could also be deemed to be grossly offensive. 3) Making false allegations against the character of a person or character assassination could also qualify as grossly offensive and having menacing character. 4) Using insulting words or symbols which are obscene, could also qualify as grossly offensive and having menacing character. 5) Calling someone names could also be brought within the ambit of being grossly offensive or having menacing character 6) Posting the picture of a person in uncomplimentary situations and environments could also be said to be grossly offensive or having menacing character. For example, if you morphed the photograph of a girl/boy’s face on the face of erotic/nude model’s body, the same could not only be obscene but could also be grossly offensive and having menacing character. 7) Electronic morphing which shows a person depicted in a bad light could also be seen as an example of information being grossly offensive or having menacing character. 8) Using vernacular gallies or bad words in English alphabets could also qualify as grossly offensive or having menacing character. 9) Threatening somebody with consequences for his life, apart from being separate offences, could be also construed as information which is grossly offensive or having menacing character. 10) Threatening to expose the ill-deeds of somebody could also qualify as information which has menacing character. 11) Information containing malicious, mischievous character assassination 12) Information containing morphed pictures aimed at hurting religious sentiments. 13) Information showing gods and goddesses of particular religions in an uncomplimentary light. 14) Putting the picture of a person against a slogan/phrase/saying which does not depict his true character or personality. 15) Deceiving the addressee or recipient about the origin of such messages. For example, sending emails from a fake email account to another person, could qualify as an offence under Section 66A of the amended Indian Information Technology Act, 2000. 16) Further misleading the addressee or recipient about the origin of such messages, e.g. sending e-mails and SMSs in the name of Reserve Bank of India for big lotteries, could also be brought under Section 66A of the amended Indian Information Technology Act, 2000. 17) E-mail containing fake recruitment offers to unsuspected members of the public, could also qualify as an offence under Section 66A of the amended Indian Information Technology Act, 2000. The aforesaid are just some illustrations to demonstrate how broad Section 66A of the Indian Information Technology Act, 2000 is and how and in what particular comprehensive manner can it impact you and your life. The said illustrations are neither comprehensive nor complete but have been given as selective examples of the ambit of Section 66A of the amended Indian Information Technology Act, 2000, for academic, research and review purposes only. The language and scope of legal terms used under Section 66A are very wide and are capable of distinctive varied interpretations. Seen from another angle, Section 66A can be effectively used as a tool for gagging legitimate free online speech. The problem under Section 66A is that it comes up with extremely wide parameters which have not been given any specific definitions under the law. These parameters are capable of being interpreted in any manner possible, by the law-enforcement agencies. As such, while Section 66A talks about sending any information that is grossly offensive or having menacing character, the law does not give any guidance as to what is grossly offensive or information having menacing character. Thus, it is left to the subjective discretion of the law-enforcement agencies in this regard. All wide meaning terms used under Section 66A have not been defined, which itself provides huge amount of flexibility in Section 66A to be used in any circumstances perceivable. Thus, large portions of legitimate free online speech could also be brought within the ambit of Section 66A of the amended Indian Information Technology Act, 2000. Given the advent of technology and the way people are misusing the same, there could be millions of situations which could qualify as offences under Section 66A of the amended Indian Information Technology Act, 2000. Learnings: The learnings from Section 66A of the amended Indian Information Technology Act, 2000 are that till such time Section 66A is either changed, modified, varied or amended, it will be imperative that you exercise due diligence when you send information on the Internet, social media & mobile networks. Kindly note that the focus of the law under Section 66A of the amended Indian Information Technology Act, 2000, is not on publishing information, the focus is on the offence of sending information. This assumes more significance, since whenever you are on the Internet or when you are sending e-mail or posting or publishing a blog or creating an SMS, as you are sending these electronic records from your computer system or communication device. Hence, be very careful before you send information on electronic platforms and computer networks. Conclusion: There are tremendous problems in the way Section 66A of the amended Indian Information Technology Act, 2000 has been drafted. This provision, even though has been inspired by the noble objectives of protecting reputations and preventing misuse of networks, has not been able to achieve its goals. The language of Section 66A of the amended Indian Information Technology Act, 2000 goes far beyond the reasonable restrictions on free speech, as mandated under Article 19(2) of the Constitution of India. For India, being the world’s largest, vibrant democracy, reasonable restrictions on free speech need to be very strictly construed. Section 66A of the amended Indian Information Technology Act, 2000 has the potential of prejudicially impacting free speech in the digital and mobile ecosystems. Section 66A of the amended Indian Information Technology Act, 2000 needs to be amended to made the Indian Cyberlaw in sync with the principles enshrined in the Constitution of India and also with the existing realities of social media and digital platforms today. If you require more information on the above, the author Pavan Duggal, Advocate, Supreme Court of India, could be contacted at pavan@pavanduggal.net and pduggal@gmail.com. Twitter @pavanduggal Link:- http://goo.gl/lUAH5