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Daily The Prayas News Analysis-Section 66a of it act

The Prayas News Analysis

                        SECTION 66A OF INFORMATION TECHNOLOGY ACT

THE NEWS

Striking the Sec 66A of IT Act: The Shreya Singhal Case

Supreme Court takes freedom of speech to the Net by striking down much abused Section 66A. The apex court has
reaffirmed the importance of free speech.

What Section 66A says:

“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.”

Section 66A provides punishment for sending offensive messages through communication services.

These messages may be any information created, transmitted or received on a computer system, resource or device including attachments in the form of…
• Text
• Images
• Audio
• Video
• Any other electronic record which may be transmitted with the message

The law targets messages that…

• Are grossly offensive or menacing
• Proffer false information intending to cause annoyance, inconvenience, intimidation, insult, obstruction, etc.,
• Are intended at deceiving the addressee about the origin of the message
The law was amended in 2008 and received Presidential assent on February 5, 2009.

What are the provisions of Information Technology Act, 2000?

  • It regulates the use of internet including the message service, social media, etc.
  • It creates separate offences for the misuse of internet & prescribes higher punishment for similar offences
    committed in print/electronic media.
    For Example –
  •  Sec 66A made defamation as cognizable offence with a punishment of not more than 3 years
    with/without fine. <But, same offence is a non-cognizable offence under IPC>
  • Sec 67A of IT Act, confers a punishment that may range from 5-10 years of imprisonment with 1-2
    lakh fine, for transmitting the obscene or vulgar offences across internet.< A similar offence would
    attract lesser punishment under IPC>
  • Sec 69A provided power to govt. to issue directions to block public access of any information through any
    computer source.

Why Section 66A was challenged?

  •  Section 66A had extremely wide parameters, which allow whimsical interpretations by law enforcement
    agencies.
  • There was no clarity over terms like offensive, grossly menacing, causing annoyance, etc opening it to many
    interpretations.
  • It outlawed all political satire, cartoons, caricatures and spoof writing indirectly.
    What was Govt. of India’s stand to protect Section 66A?
  • The Section 66A of the IT Act acts as a necessary deterrent against publishing or writing “objectionable” or
    “grossly offensive” contents in cyberspace.
  • The provision is essential for controlling inflammatory content provoking violence.
  • The Centre failed to impress the bench, by assuring that it will be administered in a reasonable manner.

How Section 66A was in conflict with Fundamental Rights?

It violated the freedom of speech and expression given under Article 19 (1)(a).

ISP argued that it even violated right to equality given under Art. 14, as separate offences cannot be created for
people using internet. However, SC rejected this opinion, because there is clear intelligible difference between
internet and other medium of communication. Can you imagine, what is the difference, please post in the comments box.

What was court’s judgment in Shreya Singhal vs Union of India Case?

  • SC held that Sec 66A is unconstitutional and void on the ground that it was excessively vague, open-ended
    and undefined.
  • It did not give clear direction, either to the users of internet or to the law enforcement agencies on what
    acts performed on internet would amount to defamation.
  • Court held that vagueness of Sec 66A, took away the freedom of speech and the right to descent. It had
    a intimidating effect on free speech.

Why scrapping Section 66A may not be in India’s best interests?

  • Some experts argue that India’s IT Act provides legal remedies for a just a handful of cyber crimes & many
    have been left out.
  • The new kinds of cyber crimes are emerging on a daily basis, which was facilitated by the vagueness of Sec
    66A.
  •  The ruling will only mean several steps backwards for the govt. and the country on this aspect.
  • However, it maybe very difficult to prove instances of cyber stalking, bullying or annoyance by applying
    provisions of the non-Internet world. These activities are easily facilitated by the instant nature of the
    Internet.

However, the Bench turned down a plea to strike down sections 69A and 79 of the Act, which deal with the
procedure and safeguards for blocking certain websites and exemption from liability of intermediaries in certain
cases, respectively. Following were the arguments put forth by the Supreme Court:
1. In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount
significance under the Constitution. Three concepts fundamental in understanding the reach of this right
were discussion, advocacy and incitement. Discussion, or even advocacy, of a particular cause, no matter
how unpopular it was, was at the heart of the right to free speech and it was only when such discussion
or advocacy reached the level of incitement that it could be curbed on the ground of causing public
disorder.
2. The court then went on to say that Section 66A actually had no proximate connection with public order
or with incitement to commit an offence. The information disseminated over the Internet need not be
information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of
‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance,
inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences
under the Indian Penal Code at all.
3. Holding several terms used in the law to define the contours of offences as “open-ended, undefined and
vague”, the court said: “Every expression used is nebulous in meaning. What may be offensive to one
may not be offensive to another. What may cause annoyance or inconvenience to one may not cause
annoyance or inconvenience to another.”
4. The court pointed out that a penal law would be void on the grounds of vagueness if it failed to define
the criminal offence with sufficient definiteness. Ordinary people should be able to understand what
conduct is prohibited and what is permitted. Also, those who administer the law must know what
offence has been committed so that arbitrary and discriminatory enforcement of the law does not take
place.
5. The restrictions imposed by Section 66A transcend the ones allowed by the Constitution under Article
19(2). Thus, the section is unconstitutional and void.

Supreme Court refused to repeal Sections 69A and 79 of the IT, Act

Section 69A

It grants powers to the Central Government to “issue directions for blocking of public access to any information
through any computer resource”. In other words, that would mean that it allows the government to block any
website. While necessity or expediency in terms of certain restricted interests are specified, no guidelines have
been specified.
The Supreme Court upheld constitutional validity of section 69A of Information Technology Act, under which the
Centre can exercise its power to issue directions to block an internet site, saying there are adequate procedural
safeguards. However, it noted that reasons for blocking have to be recorded in writing in such blocking order,
which would be amenable to judicial scrutiny.
The bench rejected the contention that procedural safeguards provided under Sections 95 (power to declare
certain publications forfeited) and 96 (appeal in High Court to set aside declaration of forfeiture) of CrPC are not
available here.
Besides Section 66A which was held as “unconstitutional”, there was also challenge to the validity of Section
69A. Both provisions were added to the Act through amendments in 2009 by the erstwhile UPA government.
According to the court, merely because certain additional safeguards such as those found in section 95 and 96
CrPC are not available, does not make the Rules constitutionally infirm. The bench noted that the Rules provide
for a hearing before a committee set up for the purpose which then looks into whether or not it is necessary to
block such information. It is only when the committee finds that there is such a necessity, that a blocking order is
made.

Section 79

Section 79 of the Information Technology Act 2000 says that Intermediaries, like Google, Yahoo, Facebook, My
Space etc. are not liable for third party information if they observe due diligence while discharging their duties.
One of the petitioners’ counsel also assailed Section 79(3)(b) to the extent that it makes the intermediary
exercise its own judgment upon receiving actual knowledge that any information is being used to commit
unlawful acts. Further, the expression “unlawful acts” also goes way beyond the specified subjects delineated in
Article 19(2).
It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely
related to provisions which provide for offences including Section 69A. We have seen how under Section 69A
blocking can take place only by a reasoned order after complying with several procedural safeguards including a
hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking
order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the
Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its
own mind to whether information should or should not be blocked is noticeably absent in Section 69A read with
2009 Rules.
According the Supreme Court, Section 79 is valid subject to Section 79(3)(b) being read down to mean that an
intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate
government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material.

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