LawZ Magazine

Cyber Law in India

By Pavan Duggal

In India, there has been a lot of controversy over Section 66A of the Indian Cyber law, 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 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.

Thus, we have had 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.

Information covered by Section 66A

When you send, either by means of a Computer, Phone, Smart Phone, iPhone, iPad, Tablet, Smart Computer System, Computer Network or using Mobile Devices, Personal Digital Assistants, information, you could be brought within the ambit of Section 66A if you send the following kind of information:

  • any information which you know to be false but which is sent for the purpose of causing criminal intimidation;
  • any information which you know to be false but which is sent for the purpose of causing enmity;
  • any information which you know to be false but which is sent for the purpose of causing hatred;
  • any information which you know to be false but which is sent for the purpose of causing ill will;
  • any e-mail or electronic mail message for the purpose of causing annoyance;
  • any e-mail or electronic mail message for the purpose of causing inconvenience;
  • any electronic mail or electronic mail message to deceive the addressee or recipient about the origin of such messages;
  • any electronic mail or electronic mail message to mislead the addressee or recipient about the origin of such messages.

All the above, as per (3) to (12), must be done persistently by using a computer resource or communication device.

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.

Examples of information that could be treated as grossly offensive or having menacing character

  • Using insulting words or symbols which are obscene, could also qualify as grossly offensive.
  • 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 an erotic/nude model’s body, the same could not only be obscene but could also be grossly offensive and having menacing character.
  • 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.
  • Using vernacular gaalis or bad words in English alphabets could also qualify as grossly offensive or having menacing character.
  • Threatening somebody with consequences for his life, apart from being separate offences, could also be construed as information which is grossly offensive or having menacing character.
  • Threatening to expose the ill-deeds of somebody could also qualify as information which has menacing character.
  • Information containing malicious, mischievous character assassination.
  • Information containing morphed pictures aimed at hurting religious sentiments.
  • Information showing gods and goddesses of particular religions in an uncomplimentary light.

The language and scope of legal terms used under Section 66A are very wide and are capable of distinct varied interpretations. Seen from another angle, Section 66A can be effectively used as a tool for gagging legitimate free online speech. 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 it 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 make the Indian Cyberlaw in sync with the principles enshrined in the Constitution of India and also with the existing realities of social.