The flaw in cyber law

This article by S Ronendra Singh was published in the Hindu BusinessLine on November 29, 2012. Sunil Abraham and Snehashish Ghosh are quoted.

Shaheen Dhada, 21, and her friend Rini Srinivas would never have imagined that they could land in jail because of a Facebook post. The two girls were arrested in Palghar following a complaint from local Shiv Sena workers against Shaheen's post on Facebook, where she questioned the need for a 'bandh' being observed in Mumbai on the death of the Sena supremo Bal Thackery.

While the two girls’ experience was traumatic, the action by the police has given fodder to activists and cyber experts to raise the clamour for scrapping section 66A of the IT Act, which they term as being draconian.

The Palghar incident is not an isolated event. Recently, Ravi Srinivasan, a 45-year-old supplier of plastic parts to telecom companies and a volunteer with India Against Corruption got into trouble with police after he tweeted about alleged corruption charges against Karti Chidambram, son of Finance Minister P Chidambaram.

There was a common factor in all these cases - arbitrary use of the Section 66 (A) of the Information Technology Act, 2000. The only mistake that most of these so-called offenders had committed was publishing their views online.

So, should we consider the law draconian now?

Assess Ambiguity

According to Snehashish Ghosh, Policy Associate at Centre for Internet and Society (Bangalore-based organisation looking at multidisciplinary research and advocacy in the field of Internet and society), the main reason for such inconsistent application of the law can be found in the history of the provision.

He said the language used in Section 66A of the IT Act, 2000 has been borrowed from Section 127 of the UK Communication Act, 2003 and the Malicious Communications Act, 1988.

“These two particular provisions are applicable in cases where the communication is directed to a particular person. Section 1 of the Malicious Prosecution Act begins with the, “any person who sends to another person” and hence it is clear that the provision does not include any post or electronic communication which is broadcasted to the world and deals with only one-to-one communication,” said Ghosh.

Section 127 only deals with “improper use of public electronic communications network”. It was meant to prevent misuse of public communication services. Therefore, social media Web sites do not fall under its ambit. However, the Section 66(A) in its current form fails to define any specific category, which has led to inconsistent and arbitrary use of the provision, said Ghosh.

One of the principles of interpretation of statute is that of absurdity. It states that when there are two interpretation of the law - where one renders it absurd and arbitrary, while the other puts it within the constitutional limits - then the latter interpretation is adopted.

“In the case of 66(A), interpreting it to include any form of communication transmitted using computer resource or communication device renders it to be absurd and arbitrary. Therefore, it should be interpreted and made applicable only to communication between two parties,” he opined.

According to Pavan Duggal, cyber law expert and advocate at Supreme Court of India, primarily section 66(A) is for protecting reputation and preventing misuse of its own.

“It is so vast – what is annoyance and inconvenience – gives a tremendous handle in the hands of the complainant and the police to target anyone. Further, if you send any information through email or SMS, which aims to mislead the addressee about such mail or message is a crime. All this suddenly opens a Pandora box of offences,” he said.

“So, when you look at case of Mamta Banerjee or latest case of those two girls getting arrested in Mumbai, it shows that Section 66(A) becomes an effective tool in the hands of ingenious complainants to gag free speech. And, that is why there is so much noise,” Duggal said.

To Use, Not Abuse

Sighting the recent case of the two girls from Mumbai, he said the law was abused and all they need to do is just exploit – whether clicking a ‘Like’ button on Facebook could involve Section 66(A) – and this case is setting a precedence that ‘liking’ a comment can be an offensive of Section 66(A).

“When you click a ‘Like’ button, you do not send any information that is defined under Section 66(A). You only send information of ‘liking’ that information or message,” he said.

However, it has become a code of misuse in its own sense. Parameters given there in the Act are extremely wide and can be interpreted.

“It has only one good thing – it makes the offence bailable, which means bail as a matter of right. But, once you get stuck under Section 66(A), along with that invites a long period of mental agony and trauma because the trial will take five-six years and you will have to undergo the trial,” he added.

So does it mean the Government should scrap or completely abolish this Section from the IT Act, 2000 or should the people of India file a petition against this Section?

Sunil Abraham, Executive Director, Centre for Internet and Society says there are laws specifically dealing with cyber stalking and communications and therefore, there we do not need an additional law.

“Either scrap or retain narrow parameters, which could be made defamatory. Otherwise, more such cases would be seen in future under this section. It has not done anything significant and has an impact on basic free online speech to public,” says Duggal.

A better approach would be to strike down the provision and include separate well defined anti-stalking and anti-spamming provision, said Ghosh of Centre for Internet and Society.

However, Mahesh Uppal, Director, ComFirst India (consultancy firm on regulatory issues) said it would be premature, in these circumstances, for any litigation against this Section.

“The issue is serious. However, this is as much to do with policing in general as it is to do with Section 66(A) which needs an amendment and clarification to remove any scope for abuse,” he said.

But, is the Government ready for any change?

Minister of Communications and IT, Kapil Sibal recently said, “Just because some people do not follow it properly, we cannot entirely scrap the law. Can we do away with penal code? We cannot.”

So, does that mean we, as citizens, have to consult legal notes before posting a message online or sending an SMS? And, even if we do, are all laws, sections and under-sections comprehendible by the common man? If not, how big a risk are we, and the person who ‘Likes’ what we say is taking?

The answers to these questions determine the future of freedom of speech.