Cybersecurity , Legislation , Litigation

IT Act Section 66A to be Restored

Leaders Welcome Move to Regulate Social Media Misuse
IT Act Section 66A to be Restored

The Government of India is working on re-instating Section 66A of the IT Act, which called for arrests for posting of online content deemed annoying, offensive or inconveniencing. This section was struck down by the Supreme Court of India in March.

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In a statement released to the media, Ravi Shankar Prasad, minister for telecommunications said, "The ministry of Home Affairs has formed a panel headed by former Law Secretary T K Vishwanathan to examine the implications of the apex court judgement and suggest restoring of 66A of Information Technology Act 2000 with modifications and safeguards to make it fully compatible with constitutional provisions."

The expert committee has been asked to suggest alternate legal measures to avoid misuse of social media in the interest of national security and maintenance of public order.

Cyber law experts welcome the move. They argue that Section 66A of the IT Act should be retained in its present form and need not be modified or repealed except for articulating what constitutes offensive and menacing.

Bangalore-based cyber law expert and Total Information Assurance consultant, Naavi Vijayashankar says, "The Supreme Court should retain aspects of Section 66A which include harassment through e-mail and messaging through communication devices, sending of phishing mails, spamming etc., which in its misplaced activist approach it failed to protect."

Section 66A 'Unconstitutional'

In a March 24 ruling, the Supreme Court of India struck down Section 66A, terming it 'unconstitutional,' and said it had a 'chilling effect' on freedom of speech and expression. The issue gains importance as many were arrested for posting cartoons of politicians or criticising them when the act was in force.

Section 66A articulates as a cybercrime sending, by means of a computer resource or a communication device:

  • Any information grossly offensive or has a menacing character;
  • Any information known to be false, but for causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently;
  • Any electronic mail or e-mail message for causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

These crimes shall be punishable with imprisonment for a term which may extend to three years and with fine.

Spiking 66A: After Effects

Expert believe spiking 66 A saw an increase in cyber-related criminal activities, leaving cybercrime departments helpless.

Says Delhi-based Supreme Court advocate Pavan Duggal, "Cyber bullying in India has dramatically increased, as also misuse of social media."

"Victims of cyber bullying don't have any effective remedy now. Further, there are no direct remedies to target spam-related activities," he says.

Trichur-based cyber investigator, Dhanya Menon endorses, "I receive about six cyber-bullying complaints daily. I don't have a solution as there's no Act I can associate with to take action against criminals, which is very embarrassing."

Coimbatore-based S N Ravichandran, cyber investigator and member, Cyber Society of India, argues that several cases were reported but nothing can be done.

"Alternate sections in IPC either don't cover the offence or don't cover it adequately," says Ravichandran. "The police find it easier to advise petitioners to change their mobile or delete their profile."

Recommended Changes

Experts appreciate the move, but take it with a pinch of salt and suggest the committee includes stringent provisions in its new version.

Mumbai-based Prashant Mali, advocate and president, Cyber Law Consulting, says the erstwhile Section 66A had three parts. The first was written in a way which was responsible for the public interest litigation; the other two were for cyber defamation and anti-spam. The apex court technically should have kept it for brevity.

In the revised version he says:

  • Online defamation must be elaborated with illustrations and/or examples;
  • There must be a provision for first instance and second instance. first instance should be recorded but not penalized; it can be a non-cognisable offence, a sorry letter to be kept on record. The second instance should be penalised; it can be a cognisable offence and repeated instance should be rigorously penalized;
  • There must be provisions for civil remedy for online defamation; possibly 43(k) can be inserted so people can get compensation from the adjudication officers by a faster process.

Vijayashankar hopes that more than "E-Defamation," the use of social media to spread false rumors, creating disharmony in society, etc., must be regulated.

Thiruvananthapuram-based Vijayakumaran Nair, assistant commandant, Police-Hi-tech Crime Enquiry Cell, sees about 75 percent cases registered under section 66A for the above acts in most police stations. But now, law enforcement agencies were forced to stop investigations of such cases. "I expect to see a section similar to 66A, viz, people who indulge in activities using computers and mobile phones through social media and email, etc. For me, provisions in the IPC or any other law aren't enough to tackle those criminals; such postings or harassment spell severe mental trauma and financial loss to victims," he says.

Legal experts argue that a lot depends on the legislative drafting of the section.

Says Duggal, "Modifications must be done keeping in mind that no parameters of the said section infringe or violate Article 19(1) of the Constitution. Further, whatever restrictions are put on freedom of speech and expression should be in consonance of reasonable restrictions for protecting freedom of speech and expression as stipulated under Article 19(2)."

The law of torts can be strengthened, says Ravichandran. "Abuse or harassment on social media or through any computer or computer enabled resource should be made a cognizable offence, irrespective of any new clauses," he says.


About the Author

Geetha Nandikotkur

Geetha Nandikotkur

Managing Editor, Asia & the Middle East, ISMG

Nandikotkur is an award-winning journalist with over 20 years' experience in newspapers, audio-visual media, magazines and research. She has an understanding of technology and business journalism, and has moderated several roundtables and conferences, in addition to leading mentoring programs for the IT community. Prior to joining ISMG, Nandikotkur worked for 9.9 Media as a Group Editor for CIO & Leader, IT Next and CSO Forum.




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