The Centre for Internet and Society
https://cis-india.org
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No Civil Society Members in the Cyber Regulations Advisory Committee
https://cis-india.org/internet-governance/blog/cyber-regulations-advisory-committee-no-civil-society
<b>The Government of India has taken our advice and reconstituted the Cyber Regulations Advisory Commitee. But there is no representation of Internet users, citizens, and consumers — only government and industry interests.</b>
<p>In multiple op-eds (<a href="http://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism">Indian Express</a> and <a href="http://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act">Mint</a>), I have pointed out the need for the government to reconstitute the "Cyber Regulations Advisory Committee" (CRAC) under section 88 of the Information Technology Act. That it be reconstituted along the model of the Brazilian Internet Steering Committee was also <a href="http://docs.google.com/viewer?url=www.iigc.in%2Fhtm%2F2.pdf">part of the suggestions that CIS sent to the government</a> after a <a href="http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/government-to-hold-talks-with-stakeholders-on-internet-censorship/article3860393.ece">meeting FICCI had convened along with the government on September 4, 2012</a>.</p>
<p>Section 88 requires that people "representing the interests principally affected" by Internet policy or "having special knowledge of the subject matter" be present in this advisory body. The main function of the CRAC is to advise the the Central Government "either generally as regards any rules or for any other purpose connected with this Act".</p>
<p>Despite this important function, the CRAC had — till November 2012 — only ever met twice, <a href="http://cis-india.org/internet-governance/resources/deity-response-to-rti-on-decisions-of-crac">both times in 2001</a>. The response to an RTI informed us that the body had never provided any advice to the government.</p>
<h2 id="government-not-serious">Government Not Serious</h2>
<p>The increasing pressure on the government for botching up Internet regulations has led it to reconstitute the CRAC. However, the list of members of the committee shows that the government is not serious about this committee representing "the interests primarily affected" by Internet policy.</p>
<p>Importantly, this goes against the express wish of the Shri Kapil Sibal, the Union Minister for Communications and IT, who has repeatedly stated that he believes that Internet-related policymaking should be an inclusive process. Most recently, at the 2012 Internet Governance Forum he stated that we need systems that are:</p>
<blockquote>
"collaborative, consultative, inclusive and consensual, for dealing with all public policies involving the Internet"
</blockquote>
<p>Interestingly, despite the Hon'ble Minster verbally inviting civil society organizations (on November 23, 2012) for a meeting of the CRAC that happened on November 25, 2012, the Department of Electronics and Information Technology refused to send us invitations for the meeting. This hints at a disconnect between the political and bureaucratic wings of the government, at least at some levels.</p>
<p>Interestingly, this isn't the first time this has been pointed out. Na. Vijayashankar was levelling similar criticisms against the CRAC <a href="http://www.naavi.org/cl_editorial/edit_18aug00_1.html">way back in August 2000</a> when the original CRAC was constituted.</p>
<h2 id="breakdown-by-stakeholder-groupings">Breakdown by Stakeholder Groupings</h2>
<p>While there is no one universal division of stakeholders in Internet governance, but four goups are widely recognized: governments (national and intergovernmental), industry, technical community, and civil society. Using that division, we get:</p>
<ul>
<li>Government - 15 out of 22 members</li>
<li>Industry bodies - 6 out of 22 members</li>
<li>Technical community / Academia - 1 out of 22 members</li>
<li>Civil society - 0 out of 22 members.</li>
</ul>
<h2 id="list-of-members-of-cyber-regulatory-advisory-committee">List of Members of Cyber Regulatory Advisory Committee</h2>
<p>The official notification <a href="http://deity.gov.in/sites/upload_files/dit/files/gazzate(1).pdf">(G.S.R. 827(E)) is available on the DEIT website</a> and came into force on November 16, 2012.</p>
<p>(Note: Names with <del>strikethroughs</del> have been removed from the CRAC since 2000, and those with <i>emphasis</i> have been added.)</p>
<ol>
<li>Minister, Ministry of Communication and Information Technology - Chairman</li>
<li><i>Minister of State, Ministry of Communications and Information Technology - Member</i></li>
<li>Secretary, Ministry of Communication and Information Technology, Department of Electronics and Information Technology - Member</li>
<li>Secretary, Department of Telecommunications - Member <br /><del>Finance Secretary - Member</del></li>
<li>Secretary, Legislative Department - Member</li>
<li><i>Secretary, Department of Legal Affairs - Member</i> <br /><del>Shri T.K. Vishwanathan, Presently Member Secretary, Law Commission - Member</del></li>
<li>Secretary, Ministry of Commerce - Member</li>
<li>Secretary, Ministry of Home Affairs - Member</li>
<li>Secretary, Ministry of Defence - Member</li>
<li>Deputy Governor, Reserve Bank of India - Member</li>
<li>Information Technology Secretary from the states by rotation - Member</li>
<li>Director, IIT by rotation from the IITs - Member</li>
<li>Director General of Police from the States by rotation - Member</li>
<li>President, NASSCOM - Member</li>
<li>President, Internet Service Provider Association - Member</li>
<li>Director, Central Bureau of Investigation - Member</li>
<li>Controller of Certifying Authority - Member</li>
<li>Representative of CII - Member</li>
<li>Representative of FICCI - Member</li>
<li>Representative of ASSOCHAM - Member</li>
<li><i>President, Computer Society of India - Member</i></li>
<li>Group Coordinator, Department of Electronic and Information Technology - Member Secretary</li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cyber-regulations-advisory-committee-no-civil-society'>https://cis-india.org/internet-governance/blog/cyber-regulations-advisory-committee-no-civil-society</a>
</p>
No publisherpraneshIT ActInternet GovernancePublic Accountability2013-01-09T17:56:57ZBlog EntryGovt likely to issue guidelines to clarify IT rules soon
https://cis-india.org/news/livemint-december-16-2012-surabhi-agarwal-govt-likely-to-issue-guidelines-to-clarify-it-rules-soon
<b>Norms relate to the role of intermediaries such as telcos, Web service providers, others on hosting content online, writes Surabhi Agarwal. </b>
<hr />
<p>The article was first <a class="external-link" href="http://www.livemint.com/Home-Page/Nh4Bh1zyFjiCRPyTAilR3L/Govt-likely-to-issue-guidelines-to-clarify-IT-rules-soon.html">published</a> in LiveMint on December 16, 2012.</p>
<hr />
<p style="text-align: justify; ">After the government issued guidelines on the controversial Section 66A of the Information Technology Act, it is expected to soon come out with similar guidelines to clarify the Information Technology (Intermediaries Guidelines) Rules, 2011, that have also been heavily criticised.</p>
<p style="text-align: justify; ">A senior official of the department of electronics and information technology said that even though the government is not looking at amending the overall Act as the legislative process for that would be time consuming, it is hoping to issue guidelines within a week.</p>
<p style="text-align: justify; ">The rules were notified in April 2011 with the aim of clearly defining the role of intermediaries—including telcos, Internet and web-hosting service providers and search engines—while hosting content on their networks and websites along with ensuring some level of due diligence by them.</p>
<p style="text-align: justify; ">However, this led to outrage among the Internet community as the rules mandated hosts or owners of the websites to take action against “objectionable content” within 36 hours of receiving a complaint. Experts argued that the rules could lead to censorship attempts with some intermediaries complying with illegitimate requests to remove content from websites in a bid to avoid litigation.</p>
<p>The government official said that there had been some confusion about what it meant to take action within 36 hours.</p>
<p class="p" id="U1904108412963yXG" style="text-align: justify; ">“While the intent was to ensure that intermediaries take cognizance of the request and initiate some proceeding on it, it has been misconstrued as removing content within 36 hours in some cases,” this person said.</p>
<p class="p" style="text-align: justify; ">The official added that the government was looking at clarifying issues such as this. “We are currently studying the representations sent by different stakeholders on the rules.”<span class="person"></span><span class="person"><a href="http://www.livemint.com/Search/Link/Keyword/Subho%20Ray"></a></span></p>
<p class="p" style="text-align: justify; "><span class="person"><a href="http://www.livemint.com/Search/Link/Keyword/Subho%20Ray">Subho Ray</a></span>, president, Internet and Mobile Association of India (IAMAI), said that the term “act” should be replaced by “acknowledge” to ensure that it is not wrongly interpreted as removing content within 36 hours.</p>
<p class="p" style="text-align: justify; ">“We have also requested the time period to be extended to 72 hours as 36 hours is sometimes too short a period if it falls during the weekend,” he said.</p>
<p class="p" style="text-align: justify; ">While only some clauses address issues such as national interest, public order and security restrictions under which content can be removed, “the remainder of grounds includes private claims such as content which ‘belongs to another person’, or otherwise infringes proprietary rights, or is ‘defamatory’,” said Bangalore-based think tank Centre for Internet and Society (CIS) in its representation, of which <i>Mint</i> has a copy. Moreover, other terms, such as ‘grossly harmful’, ‘harassing’ and ‘disparaging’, are “terminologically indeterminate and purely subjective”, the representation said. It also said that “the intermediary guidelines create a two-track system by which private censorship is legitimized online”.</p>
<p class="p" style="text-align: justify; ">IAMAI’s recommendations include clearly defining who can qualify as the ‘affected person’ eligible to post a complaint on content, which has currently been left to the discretion and determination of the intermediary.</p>
<p class="p" style="text-align: justify; ">Ray’s representation also said the rules put the burden of interpretation and acting upon third-party content on the intermediary. “This, we believe is the function of the judiciary and not the intermediaries,” it said.</p>
<p class="p" style="text-align: justify; ">Guidelines, while bringing some initial clarity, may not be enough, said an executive at a top technology firm who did not want to be identified. “To ensure long-term solutions to some of the issues highlighted, the Act needs to be amended eventually,” he said.</p>
<p class="p" style="text-align: justify; ">Late last month, the government promised to issue guidelines to the states that complaints under the controversial Section 66A of the IT Act, which criminalizes “causing annoyance or inconvenience” online or electronically, can be registered only with the permission of an officer at or above the rank of deputy commissioner of police, and inspector general in metro cities. However, even in the case of Section 66A, it did not amend the terms in the Section that are said to be vague and subject to interpretation.</p>
<p>
For more details visit <a href='https://cis-india.org/news/livemint-december-16-2012-surabhi-agarwal-govt-likely-to-issue-guidelines-to-clarify-it-rules-soon'>https://cis-india.org/news/livemint-december-16-2012-surabhi-agarwal-govt-likely-to-issue-guidelines-to-clarify-it-rules-soon</a>
</p>
No publisherpraskrishnaIT ActInternet Governance2012-12-20T05:24:14ZNews ItemHacktivists deface BSNL website
https://cis-india.org/news/times-of-india-india-times-december-13-2012-kim-arora-hacktivists-deface-bsnl-website
<b>The Bharat Sanchar Nigam Limited (BSNL) website, www.bsnl.co.in, was hacked and defaced on Thursday afternoon.</b>
<hr />
<p style="text-align: justify; ">The article by Kim Arora was <a class="external-link" href="http://timesofindia.indiatimes.com/tech/tech-news/telecom/Hacktivists-deface-BSNL-website/articleshow/17603936.cms">published</a> in the Times of India on December 13, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">A message on the home page said the attack was carried out by the hacktivist group, Anonymous India, as a protest against section 66 A of the <a href="http://timesofindia.indiatimes.com/topic/IT-Act">IT Act</a> and in support of cartoonist Aseem Trivedi, on an indefinite hunger strike at Jantar Mantar since Dec 8 for the same. The website was restored around 7 pm.</p>
<p style="text-align: justify; ">Trivedi said he had received a call from Anonymous around 1.30 in the afternoon informing him that the website has been defaced. On being asked if such a form of protest was valid, Trivedi said, "When the government doesn't pay heed to people's protests against its laws and arrests innocent people for Facebook posts, then such a protest is absolutely valid."</p>
<p style="text-align: justify; ">For most of the afternoon and early evening, the BSNL website wasn't available directly. A cached version of the BSNL home page showed an image of cartoonist Trivedi with text that read "Hacked by Anonymous India. support <a href="http://timesofindia.indiatimes.com/topic/Aseem-trivedi">Aseem trivedi</a> (cartoonist) and alok dixit on the hunger strike. remove IT Act 66a databases of all 250 bsnl site has been d Hacked by Anonymous India (sic)". While this message was repeated over and over on the page, it ended with the line "Proof are (sic) here" followed by a link to a page containing the passwords to BSNL databases. BSNL officials were unaware of the attack until Thursday evening.</p>
<p style="text-align: justify; ">Late in the evening, Anonymous India tweeted from their account @opindia_revenge: "BSNL Websites hacked, passwords and database leaked... Anonymous India demands withdrawal of Sec 66A of IT Act." <br /><br /> In an open letter to the Government of India posted on alternate media website Kafila in June this year, Anonymous had explained they only carried out <a href="http://timesofindia.indiatimes.com/topic/Distributed-Denial-of-Service">Distributed Denial of Service</a> (DDoS) attacks on Indian government websites, which is different from the act of hacking per se.</p>
<p class="callout" style="text-align: justify; ">Contrary views too exist. Sunil Abraham, executive director, <a href="http://timesofindia.indiatimes.com/topic/Centre-for-Internet-and-Society">Centre for Internet and Society</a>, says the attack was unwarranted. "Speech regulation in India is not a lost cause, the Minister is holding consultations, MPs are raising the issue in Parliament, courts have been approached and there is massive public outcry on social media. Therefore I would request Anonymous India to desist from defacing websites," said Abraham. A group of MPs, including Baijayant Jay Panda from Odisha, are scheduled to present a motion in Parliament on Friday morning for the amendment of section 66A of the IT Act.</p>
<p style="text-align: justify; ">Last month, two young girls were arrested in Palghar, Maharashtra, for criticizing on Facebook the bandh that followed the death of Shiv Sena supremo Balasaheb Thackeray. Before that, Karti Chidambaram, son of finance minister P Chidambaram, took a man to court for commenting on his financial assets on Twitter. In both cases, the complainant 'used' section 66 A of the IT Act. The section and the Act have since come in for wide debate regarding freedom of speech.</p>
<p>
For more details visit <a href='https://cis-india.org/news/times-of-india-india-times-december-13-2012-kim-arora-hacktivists-deface-bsnl-website'>https://cis-india.org/news/times-of-india-india-times-december-13-2012-kim-arora-hacktivists-deface-bsnl-website</a>
</p>
No publisherpraskrishnaIT ActSocial MediaFreedom of Speech and ExpressionPublic AccountabilityCensorship2012-12-14T05:20:56ZNews Item66A ‘cut & paste job’
https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job
<b>The controversial Section 66A of the Information Technology Act has borrowed words out of context from British and American laws, according to lawyers here who are calling it a “poor cut-and-paste job”.</b>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">GS Mudur's article was <a class="external-link" href="http://www.telegraphindia.com/1121203/jsp/frontpage/story_16268138.jsp#.UMbCXaxWGZR">published in the Telegraph</a> on December 3, 2012. Pranesh Prakash and Snehashish Ghosh are quoted.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">Section 66A, passed by Parliament in December 2008, draws on laws passed in the UK in 1988 and 2003 and the US in 1996. But some lawyers say that, unlike 66A, those foreign laws impose only reasonable restrictions on freedom of speech.<br /><br />"The text of 66A seems to be the result of a cut-and-paste job done without applying the mind," said Snehashish Ghosh, a lawyer with the Centre for Internet and Society (CIS), a non-government organisation in Bangalore.<br /><br />Some of the language in Section 66A is taken from Britain’s Malicious Communications Act (MCA) of 1988, which begins with the words: "Any person who sends to another person...."<br /><br />This provision in MCA 1988, Ghosh said, is intended to curb malicious messages from one person to another. "It does not cover a post on a social website or an electronic communication broadcast to the world."<br /><br />Section 66A has also borrowed words from Britain’s Communications Act of 2003 which, Ghosh said, is intended to prevent abuse of public communication services and does not directly deal with messages sent by individuals.<br /><br />Government officials have said that 66A has also plucked language from the US Telecommunications Act of 1996.<br /><br />This was a landmark legislation that overhauled America’s telecommunication law by taking into account the emergence of the Internet and changing communications technologies. Among other things, it made illegal the transmission of obscene or indecent material to minors via computers.<br /><br />"Section 66A in its current form fails to define a specific category (context) as defined in the laws from where it has borrowed words," Ghosh said. "This is what has led to its inconsistent and arbitrary applications."<br /><br />Ghosh and his colleagues say that 66A, through an "absurd" combination of borrowed and ambiguous language, curbs freedom of expression and threatens people with three years’ imprisonment for certain offences that would otherwise, under existing Indian Penal Code (IPC) provisions, draw a fine of only Rs 200.<br /><br />Section 66A(b), for example, clubs together the offences of persistently repeated communications that might lead to "annoyance", "inconvenience", "danger", "insult", "injury", "criminal intimidation", "enmity", "hatred", and "ill-will".<br /><br />This is "astounding and unparalleled", said Pranesh Prakash, policy director at the CIS, who has posted an analysis of Section 66A on the NGO’s institutional blog.<br /><br />"We do not have such a provision anywhere but in India’s information technology law."<br /><br />This is “akin to... providing equal punishment for calling someone a moron (insult) and threatening to kill someone (criminal intimidation),” Prakash wrote in the blog, where he has listed existing IPC provisions that can deal with the offences that 66A seeks to cover.<br /><br />Lawyers have also questioned 66A’s effect of criminalising what the existing IPC would label as civil offences. For example, Prakash said, while the punishment under IPC for criminal nuisance is Rs 200, the penalty imposed by 66A is jail for up to three years.<br /><br />Several sections in the IPC, they said, can effectively address offences that 66A attempts to address exclusively for electronic communications. For example, the IPC has sections for defamation (499 and 500), outraging religious sentiments (295) and obscenity (292).<br /><br />"We do not require extraordinary laws when existing laws suffice," Ghosh said.</p>
<p>
For more details visit <a href='https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job'>https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job</a>
</p>
No publisherpraskrishnaIT ActInternet Governance2012-12-11T05:43:50ZNews ItemDebate on Section 66A rages on
https://cis-india.org/news/the-hindu-sci-tech-internet-december-10-2012-vasudha-venugopal-debate-on-section-66a
<b>Last week, a reputed BPO in Chennai took down its Facebook page and introduced stricter moderation for posts on its bulletin board. </b>
<hr />
<p style="text-align: justify; ">Vasudha Venugopal's article was <a class="external-link" href="http://www.thehindu.com/sci-tech/internet/debate-on-section-66a-rages-on/article4181938.ece">published in the Hindu</a> on December 10, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">The measure, an official said, was aimed at avoiding any "callous remark by any employee." "We have discussions on many raging topics here, and we are just making sure the content is clean with no intended defamation."</p>
<p style="text-align: justify; ">The need to present only ‘unobjectionable content’ is just one off-shoot of a controversy that has gripped the country after at least five persons were arrested in recent months for posting their views online. But what started as an outcry by a few voices against the IT Act has now turned into a campaign against the constitutional validity of the Act itself. Last week also saw concerted protests to demand the repeal of Section 66A of the IT Act, under which most of the accused were booked. Human chains and protests were conducted in Chennai, Bangalore, Pune, Hyderabad, Guntur, Kakinada, Vijaywada, Visakhapatnam, Pune, Kozhikode and Kannur, among others.</p>
<p class="body" style="text-align: justify; ">In the past few months, the debate on the use of Section 66A in particular, and the Act in general, has gathered momentum. The arrests of Jadavpur University professor Ambikesh Mahapatra for circulating a cartoon lampooning West Bengal Chief Minister Mamata Banerjee; cartoonist Aseem Trivedi; businessman Ravi Srinivasan for tweets against Union Finance Minister P. Chidambaram’s son Karti Chidambaram; and the two girls in Maharashtra for criticising the bandh after Shiv Sena leader Bal Thackeray’s death have sparked popular anger.</p>
<p class="body" style="text-align: justify; ">“Public anger and media attention have been so strong that the government has been forced to retreat, which is a good first step,” says Alagunambi Welkin, president of the Free Software Foundation Tamil Nadu, which organised the protests in Chennai. "The next step would be to plug the loopholes in the IT Act. After all, this same government has declared in various international forums that it is all for promoting openness online."</p>
<p class="body" style="text-align: justify; ">Activists say that along with the increased pressure on the government, collecting information on cases of the misuse of the Act are the tasks that have to be fulfilled immediately. Human rights activist A. Marx, who has filed a public interest litigation petition against Section 66A, says the selective application of the law is very troubling. From a broader perspective though, this is also an issue of global proportions. Recently, a man in the U.K. was jailed for 18 months after he was found guilty of posting abusive messages on an online memorial. In July this year, a young Moroccan was arrested in Casablanca on the charge of posting “insulting caricatures of the Prophet Mohammed on Facebook.”</p>
<p class="body" style="text-align: justify; ">As recently as Tuesday, a Shenzen resident was arrested for posting a letter online, accusing a senior village official of corruption, and last week, a man in Kent was arrested for posting an image of a burning poppy on a social network site.</p>
<p class="body" style="text-align: justify; ">However, Pranesh Prakash, policy director, Centre For Internet And Society, Bangalore, notes that the more problematic parts in India’s laws are ones that result from adaptation. India’s own adaptation of the U.K. law, for instance, considerably increases punishment from six months to three years. However, if it is any consolation, there are voices worldwide being raised on this issue. Till last week, Google’s search page had a message: "Love the free and open Internet? Tell the world’s governments to keep it that way," and a link for comments directed to the Dubai conference, which will see a wide-ranging discussions and key decisions on global internet governance.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-sci-tech-internet-december-10-2012-vasudha-venugopal-debate-on-section-66a'>https://cis-india.org/news/the-hindu-sci-tech-internet-december-10-2012-vasudha-venugopal-debate-on-section-66a</a>
</p>
No publisherpraskrishnaIT ActInternet GovernancePublic Accountability2012-12-10T09:44:31ZNews ItemSection 66-A, Information Technology Act, 2000: Cases
https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases
<b>In this blog post Snehashish Ghosh summarizes the facts of a few cases where Section 66-A, Information Technology Act, 2000, has been mentioned or discussed.</b>
<p></p>
<p></p>
<p>There has been numerous instances application of the Section 66-A, Information Technology Act, 2000 (“ITA”) in the lower courts. Currently, there are six High Court decisions, in which the section has been mentioned or discussed. In this blog post, I will be summarizing facts of a few cases insofar as they can be gathered from the orders of the Court and are pertinent to the application of 66-A, ITA. </p>
<p><strong> Sajeesh Krishnan v. State of Kerala (Kerala High Court, Decided on June 5, 2012)</strong></p>
<p> Petition before High Court for release of passport seized by investigating agency during arrest</p>
<p> In the case of Sajeesh Krishnan v. State of Kerala (Decided on June 5, 2012), a petition was filed before the Kerala High Court for release of passport seized at the time of arrest from the custody of the investigating agency. The Court accordingly passed an order for release of the passport of the petitioner.</p>
<p>The Court, while deciding the case, briefly mentioned the facts of the case which were relevant to the petition. It stated that the “gist of the accusation is that the accused pursuant to a criminal conspiracy hatched by them made attempts to extort money by black mailing a Minister of the State and for that purpose they have forged some CD as if it contained statements purported to have been made by the Minister.” The Court also noted the provisions under which the accused was charged. They are Sections 66-A(b) and 66D of the Information Technology Act, 2000 along with a host of sections under the Indian Penal Code, 1860 (120B – Criminal Conspiracy, 419 – Cheating by personation, 511- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, 420 – Cheating and dishonestly inducing delivery of property, 468 – Forgery for purpose of cheating, 469 – Forgery for purpose of harming and 201 – Causing disappearance of evidence of offence, or giving false information to screen offender read with 34 of Indian Penal Code, 1860)</p>
<strong>Nikhil Chacko Sam v. State of Kerala (Kerala High Court, Decided on July 9, 2012)<br /><br /></strong>
<p>Order of the Kerala High Court on issuing of the summons to the petitioner</p>
<p> In another case, the Kerala High Court while passing an order with respect to summons issued to the accused, also mentioned the charge sheet laid by the police against the accused in its order. The accused was charged under section 66-A, ITA. The brief facts which can be extracted from the order of the Court read: “that the complainant and the accused (petitioner) were together at Chennai. It is stated that on 04.09.2009, the petitioner has transmitted photos of the de facto complainant and another person depicting them in bad light through internet and thus the petitioner has committed the offence as mentioned above.”</p>
<p><strong> J.R. Gangwani and Another v. State of Haryana and Others (Punjab and Haryana High Court, Decided on October 15, 2012)</strong></p>
<p> Petition for quashing of criminal proceedings under section 482 of the Criminal Procedure Code, 1973</p>
<p> In the Punjab and Haryana High Court, an application for quashing of criminal proceeding draws attention to a complaint which was filed under Section 66-A(c). This complaint was filed under Section 66-A(c) on the ground of sending e-mails under assumed e-mail addresses to customers of the Company which contained material which maligned the name of the Company which was to be sold as per the orders of the Company Law Board. The Complainant in the case received the e-mails which were redirected from the customers. According to the accused and the petitioner in the current hearing, the e-mail was not directed to the complainant or the company as is required under Section 66-A (c).</p>
<p>The High Court held that, “the petitioners are sending these messages to the purchasers of cranes from the company and those purchasers cannot be considered to be the possible buyers of the company. Sending of such e-mails, therefore, is not promoting the sale of the company which is the purpose of the advertisement given in the Economic Times. Such advertisements are, therefore, for the purpose of causing annoyance or inconvenience to the company or to deceive or mislead the addressee about the origin of such messages. These facts, therefore, clearly bring the acts of the petitioners within the purview of section 66A(c) of the Act.”</p>
<strong>Mohammad Amjad v. Sharad Sagar Singh and Ors. (Criminal Revision no. 72/2011 filed before the Court of Sh. Vinay Kumar Khana Additional Sessions Judge – 04 South East: Saket Courts Delhi)<br /><br /></strong>
<p> Revision petition against the order of the metropolitan magistrate</p>
<p> In a revision petition came up before the Additional Sessions Judge on the grounds that the metropolitan magistrate has dismissed a criminal complaint under Section 156(3) of the Criminal Procedure Code without discussing the ingredients of section 295-A, IPC and 66-A, IT Act.</p>
<p>In this case, the judge observed that, “...section 66A of Information Technology Act (IT Act) does not refer at all to any 'group' or 'class' of people. The only requirement of Section 66A IT Act is that the message which is communicated is grossly offensive in nature or has menacing character.” He also observed that the previous order “not at all considered the allegations from this angle and the applicability of Section 66A Information Technology Act, 2000 to the factual matrix of the instant case.” </p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases'>https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases</a>
</p>
No publishersnehashishIT ActInternet GovernanceInformation Technology2012-12-06T09:20:51ZBlog EntryList of Chairman and Members of CRAC
https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac
<b>Notification on the constitution of the "Cyber Regulation Advisory Committee"</b>
<p align="center">LIST OF CHAIRMAN AND MEMBERS OF CYBER REGULATION ADVISORY COMMITTEE</p>
<p align="center">NOTIFICATION<a href="#_ftn1">[1]</a></p>
<p align="right">17th October, 2000</p>
<p><i>In exercise of the powers conferred by section 88 of the Information Technology Act, 2000 (21 of 2000) the Central Government hereby constitute the “Cyber Regulation Advisory Committee”, consisting of the following, namely: – </i></p>
<p>1. <a href="#_ftn2">[2]</a>[Minister, Communication and Information Technology] - Chairman</p>
<p>2. Secretary, Legislative Department - Member</p>
<p>3. Secretary, <a href="#_ftn3">[3]</a>[Ministry of Communication and Information Technology, Department of Information Technology] - Member</p>
<p>4. Secretary, Department of Telecommunications - Member</p>
<p>5. Finance Secretary - Member</p>
<p>6. Secretary, Ministry of Defence - Member</p>
<p>7. Secretary, Ministry of Home Affairs - Member</p>
<p>8. Secretary, Ministry of Commerce - Member</p>
<p>9. Deputy Governor, Reserve Bank of India - Member</p>
<p>10. Shri T.K. Vishwanathan, Presently Member Secretary, Law Commission - Member [<i>sic</i>]</p>
<p>11. President, NASSCOM - Member</p>
<p>12. President, Internet Service Provider Association - Member</p>
<p>13. Director, Central Bureau of Investigation - Member</p>
<p>14. Controller of Certifying Authority - Member</p>
<p>15. Information Technology Secretary by rotation from the States - Member</p>
<p>16. Director General of Police by rotation from the States - Member</p>
<p>17. Director, IIT by rotation from the IITs - Member</p>
<p>18. Representative of CII - Member</p>
<p>19. Representative of FICCI - Member</p>
<p>20. Representative of ASSOCHAM - Member</p>
<p>21. <a href="#_ftn4">[4]</a>[Scientist “6”, Department of Information Technology] - Member Secretary</p>
<p> </p>
<p>2. Travelling Allowance/Dear Allowance, as per the Central Government rules, for non-official members shall be borne by the Ministry of Communication and Information Technology, Department of Information Technology.</p>
<p>3. The Committee may co-opt any person as member based on specific meetings</p>
<p align="center">_______________________</p>
<p><br clear="all" /></p>
<hr align="left" size="1" width="33%" />
<p><a href="#_ftnref1">[1]</a> <i>Vide </i>G.S.R. 790(E), dated 17th October, 2000</p>
<p><a href="#_ftnref2">[2]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.</p>
<p><a href="#_ftnref3">[3]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.</p>
<p><a href="#_ftnref4">[4]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Senior Director, Ministry of Information Technology”</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac'>https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac</a>
</p>
No publishersnehashishIT ActInternet GovernanceInformation Technology2012-12-02T06:22:25ZPageThe real Sibal’s law: Resisting Section 66A is futile
https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile
<b>The Information Technology Act is “substantially the same” as laws instituted in other democracies like UK and the United States. What’s more, the language that is employed in various sections is exactly the same. Thus was the thrust of Kapil Sibal’s defense of Section 66A on NDTV last night.</b>
<hr />
<p style="text-align: justify; ">The article by Lakshmi Chaudhry was <a class="external-link" href="http://www.firstpost.com/politics/the-real-sibals-law-resisting-section-66a-is-futile-541045.html">published in FirstPost on November 30</a>. Pranesh Prakash's blog post on section 66A which was also carried in Outlook is quoted.</p>
<hr />
<p style="text-align: justify; ">The problem therefore lies not in the law but in its interpretation: “It’s very difficult to interpret the act on the ground. If you give this power to a sub-inspector of police, it is more than likely to be misused.” Sibal is hence “open” to putting in place guidelines that may prevent such abuse, whether it involves requiring a senior police officer to make the call or specifying the “circumstances” in which the law is applicable.</p>
<p style="text-align: justify; ">Now, there are many ways to tear apart Sibal’s logic. In <i>Outlook</i>, for example, Centre for Internet and Society’s Pranesh Prakash offers a <a href="http://www.outlookindia.com/article.aspx?283149" target="_blank">detailed comparison</a> with the UK law to show that: one, the UK courts have “read down” the “broad wording” of the law; two, they remain subject to EU human rights provisions; and three, UK law may well be unconstitutional under the Indian Constitution which offers stronger free speech protection.</p>
<p style="text-align: justify; ">Prakash’s legal arguments are worthy, meticulously argued and — in my view — somewhat moot.</p>
<p style="text-align: justify; ">Here’s why. Would discarding or amending Section 66A prevent the MNS goons from hauling Sunil Vishwakarma to the police station for a Facebook update? Would it prevent the Palghar policemen from filing a case against Shaheen and Rinu under pressure from the local Sainiks? Would that Jadhavpur professor then be immune from Trinamool harrassment for offending <a href="http://www.firstpost.com/topic/person/mamata-banerjee-profile-16017.html" target="_self">Mamata</a>?</p>
<p align="LEFT">The answer is a big fat N-O.</p>
<p style="text-align: justify; ">Sibal is right. In India, the actual law is often irrelevant. Interpretation is all. And that interpretation in the real world of the police <i>thana</i> is determined not by legal standards but according to political power. So we have wonderfully progressive statutes on the book — as we do in the matter of women’s rights — that exist only in theory. More effective and employed are the draconian, colonial-era laws that are routinely used to punish the innocent. The IT act is just one of them.</p>
<p style="text-align: justify; ">In India, law is a weapon, a <i>brahmastra</i> of the powerful. The Sainiks were looking to make an example of someone, to exercise their political brawn. Shaheen and Rinu were convenient targets, and once selected, no law could have saved them from Shiv Sena wrath. The legal threshold for “offensive” content is irrelevant to NCP Kiran Pawaskar who put pressure on the police to <a href="http://www.ndtv.com/article/cities/two-air-india-employees-arrested-for-facebook-posts-spend-12-days-in-custody-297118?fb" target="_blank">arrest</a> two Air India employees because they “shared lewd jokes about politicians, made derogatory comments against the Prime Minister and insulted the national flag in their posts.”</p>
<p style="text-align: justify; ">The <i>goonda raj</i> of politicians on the Internet merely reflects the reality offline. All that our online activity does is make the<i> aam aadmi</i> more visible, and therefore easier to target and victimise. They can’t put in spy cameras in every living room, but now they can monitor our conversations on Facebook and Twitter instead. In a sense, the Internet has allowed Big Brother into our homes</p>
<p style="text-align: justify; ">This is why comparisons to UK or US — which enjoy the rule of law — are irrelevant. And why upgrading the rank of the policeman — DCP or Inspector-general — making the call will not change the outcome in most cases. The political pressures on a DCP or IG are not different than on a lowly sub-inspector who takes action not because he doesn’t understand the law, but because he understands all too well the costs of non-compliance. As for putting a magistrate in charge, well, it was a magistrate who authorised the arrests of Shaheen and Rinu.</p>
<p style="text-align: justify; ">The only reason the policemen who arrested the girls may be punished is that the Congress party is in power in Maharashtra, as in not the Shiv Sena or the BJP. In Kolkata, for example, <a href="http://www.firstpost.com/topic/person/mamata-banerjee-profile-16017.html" target="_self">Mamata</a>-<i>di</i> has no intention of taking action against those who arrested Ambikesh Mahapatra. ‘<i>Raja chale bazaar to kutta bhonke hazaar</i>‘ (the king walks to market, though a thousand dogs bark),” <a href="http://www.business-standard.com/generalnews/ians/news/mend-your-ways-or-lose-power-katju-tells-mamata/85648/" target="_blank">declared<i> Didi</i></a> when pressed on Justice Katju’s criticism of her anti-free speech stance.</p>
<p style="text-align: justify; ">It succinctly embodies the attitude of our leaders. Sibal may be saddened by the Palghar case but he was every bit as unruffled as Mamata when Ravi Srinivasan was arrested for an innocuous tweet accusing Karti Chidambaram of corruption. There are naturally no plans to drop the case against him. So it matters little if the IT act is amended or who is tasked with interpreting Section 66A. Who is punished, who receives justice, however delayed, is determined by politics not law.</p>
<p style="text-align: justify; ">In his <i>NDTV</i> interview, Sibal chided Barkha for bringing up “5-10 instances” of unlawful arrests when “there must be millions of [abusive] comments that have been put on the internet.” It’s a familiar Sibal strategy that he has employed in the past. Pressed on Ravi Srinivasan’s arrest, he <a href="http://articles.timesofindia.indiatimes.com/2012-11-09/internet/35015347_1_cyber-law-kapil-sibal-rules-bailable-offence" target="_blank">told reporters</a>, “There are 500 things by the name of Kapil Sibal and there are some things which I really don’t like. But I have not taken action.”</p>
<p style="text-align: justify; ">What he’s really saying is that each time we update, tweet or comment, we enter an online version of russian roulette, the kind you play with a gun. You never know which chamber is loaded, or when a politician is likely to pull the trigger. We survive not by the mercy of the law but at the whim of the powerful. In India, law isn’t an ass; it’s our dear <i>netaji’s chaprasi.</i></p>
<p>
For more details visit <a href='https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile'>https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile</a>
</p>
No publisherpraskrishnaIT ActInternet Governance2012-12-03T05:16:11ZNews ItemThe flaw in cyber law
https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law
<b>Legal experts and netizens want the controversial clause in the IT Act to be scrapped after two Mumbai girls were arrested for a post on Facebook.</b>
<hr />
<p style="text-align: justify; ">This article by S Ronendra Singh was <a class="external-link" href="http://www.thehindubusinessline.com/features/eworld/the-flaw-in-cyber-law/article4143509.ece?homepage=true&ref=wl_home">published in the Hindu BusinessLine</a> on November 29, 2012. Sunil Abraham and Snehashish Ghosh are quoted.</p>
<hr />
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">So, should we consider the law draconian now?</p>
<h3 style="text-align: justify; ">Assess Ambiguity</h3>
<p style="text-align: justify; "><span><span>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. </span></span></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">“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.</p>
<h3 style="text-align: justify; ">To Use, Not Abuse</h3>
<p style="text-align: justify; "><span><span>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). </span></span></p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">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?</p>
<p style="text-align: justify; ">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.</p>
<p>“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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">“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.</p>
<p style="text-align: justify; ">But, is the Government ready for any change?</p>
<p style="text-align: justify; ">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.”</p>
<p style="text-align: justify; ">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?</p>
<p>The answers to these questions determine the future of freedom of speech.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law'>https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionIT ActInternet Governance2012-11-30T09:06:25ZNews ItemBreaking Down Section 66A of the IT Act
https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act
<b>Section 66A of the Information Technology Act, which prescribes 'punishment for sending offensive messages through communication service, etc.' is widely held by lawyers and legal academics to be unconstitutional. In this post Pranesh Prakash explores why that section is unconstitutional, how it came to be, the state of the law elsewhere, and how we can move forward.</b>
<p style="text-align: justify; ">Back in February 2009 (after the IT Amendment Act, 2008 was hurriedly passed on December 22, 2008 by the Lok Sabha, and a day after by the Rajya Sabha<a href="#fn1" name="fr1">[1]</a> but before it was <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/act301009.pdf">notified on October 27, 2009</a>) I had written that <a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act" class="external-link">s.66A</a> is "patently in <a href="https://cis-india.org/internet-governance/publications/it-act/short-note-on-amendment-act-2008/" class="external-link">violation of Art. 19(1)(a) of the Constitution of India</a>":</p>
<p class="visualClear" style="text-align: justify; ">Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different from the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.</p>
<p class="visualClear" style="text-align: justify; ">I stand by that analysis. But given that it is quite sparse, in this post I will examine s.66A in detail.</p>
<p class="visualClear" style="text-align: justify; ">Here's what s. 66A of the IT (Amendment) Act, 2008 states:</p>
<p class="callout" style="text-align: justify; "><b>66A. Punishment for sending offensive messages through communication service, etc.,<br /></b>Any person who sends, by means of a computer resource or a communication device,—<br />(a) any information that is grossly offensive or has menacing character;<br />(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,<br />(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<br /><br />shall be punishable with imprisonment for a term which may extend to three years and with fine.<br /><br />Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.<a href="#fn2" name="fr2">[2]</a></p>
<p align="JUSTIFY">A large part of s.66A can be traced back to s.10(2) of the UK's Post Office (Amendment) Act, 1935:</p>
<p align="JUSTIFY" class="callout">If any person —<br />(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or<br />(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or<br />(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;<br />he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.</p>
<p align="JUSTIFY">Section 66A bears a striking resemblance to the three parts of this law from 1935, with clauses (b) and (c) being merged in the Indian law into a single clause (b) of s.66A, with a whole bunch of new "purposes" added. Interestingly, the Indian Post Office Act, 1898, was never amended to add this provision.</p>
<p align="JUSTIFY">The differences between the two are worth exploring.</p>
<h3 align="JUSTIFY">Term of Punishment</h3>
<p style="text-align: justify; ">The first major difference is that the maximum term of imprisonment in the 1935 Act is only one month, compared to three years in s.66A of the IT Act. It seems the Indian government decided to subject the prison term to hyper-inflation to cover for the time. If this had happened for the punishment for, say, criminal defamation, then that would have a jail term of up to 72 years! The current equivalent laws in the UK are the Communications Act, 2003 (s. 127) and the <a class="external-link" href="http://www.legislation.gov.uk/ukpga/1988/27/section/1">Malicious Communications Act</a> 1988 (s.1) for both of which the penalty is up to 6 months' imprisonment or to a maximum fine of £5000 or both. What's surprising is that in the Information Technology (Amendment) Bill of 2006, the penalty for section 66A was up to 2 years, and it was changed on December 16, 2008 through an amendment moved by Mr. A. Raja (the erstwhile Minister of Communications and IT) to 3 years. Given that parts of s.66A(c) resemble nuisance, it is instructive to note the term of punishment in the Indian Penal Code (IPC) for criminal nuisance: a fine of Rs. 200 with no prison term.</p>
<h3 style="text-align: justify; ">"Sending" vs. "Publishing"</h3>
<p align="JUSTIFY">J. Sai Deepak, a lawyer, has made an interesting point that <a class="external-link" href="http://thedemandingmistress.blogspot.in/2012/11/does-section-66a-of-information.html">the IT Act uses "send" as part of its wording, and not "publish"</a>. Given that, only messages specifically directed at another would be included. While this is an interesting proposition, it cannot be accepted because: (1) even blog posts are "sent", albeit to the blog servers — s.66A doesn't say who it has to be sent to; (2) in the UK the Communications Act 2003 uses similar language and that, unlike the Malicious Communication Act 1988 which says "sends to another person", has been applied to public posts to Twitter, etc.; (3) The explanation to s.66A(c) explicitly uses the word "transmitted", which is far broader than "send", and it would be difficult to reconcile them unless "send" can encompass sending to the publishing intermediary like Twitter.</p>
<p align="JUSTIFY">Part of the narrowing down of s.66A should definitely focus on making it applicable only to directed communication (as is the case with telephones, and with the UK's Malicious Communication Act), and not be applicable to publishing.</p>
<h3 align="JUSTIFY">Section 66A(c)</h3>
<p style="text-align: justify; ">Section 66A(c) was also inserted through an amendment moved by Mr. Raja on December 16, 2008, which was passed by the Lok Sabha on December 22, 2008, and a day after by the Rajya Sabha. (The version introduced in Parliament in 2006 had only 66A(a) and (b).) This was done in response to the observation by the Standing Committee on Information Technology that there was no provision for spam. Hence it is clear that this is meant as an anti-spam provision. However, the careless phrasing makes it anything but an anti-spam provision. If instead of "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages" it was "for the purpose of causing annoyance and inconvenience and to deceive and to mislead the addressee or recipient about the origin of such messages", it would have been slightly closer to an anti-spam provision, but even then doesn't have the two core characteristics of spam: that it be unsolicited and that it be sent in bulk. (Whether only commercial messages should be regarded as spam is an open question.) That it arise from a duplicitous origin is not a requirement of spam (and in the UK, for instance, that is only an aggravating factor for what is already a fine-able activity).<br /><br />Curiously, the definitional problems do not stop there, but extend to the definitions of "electronic mail" and "electronic mail message" in the 'explanation' as well. Those are so vast that more or less anything communicated electronically is counted as an e-mail, including forms of communication that aren't aimed at particular recipients the way e-mail is.<br /><br />Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.</p>
<h3 class="visualClear" style="text-align: justify; ">Section 66A(b)</h3>
<p style="text-align: justify; ">Section 66A(b) has three main elements: (1) that the communication be known to be false; (2) that it be for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (3) that it be communicated persistently. The main problem here is, of course, (2). "Annoyance" and "inconvenience", "insult", "ill will" and "hatred" are very different from "injury", "danger", and "criminal intimidation". That a lawmaker could feel that punishment for purposes this disparate belonged together in a single clause is quite astounding and without parallel (except in the rest of the IT Act). That's akin to having a single provision providing equal punishment for calling someone a moron ("insult") and threatening to kill someone ("criminal intimidation"). While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalised (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. However, the question arises whether you need a separate provision in the IT Act for that. Criminal intimidation is already covered by ss. 503 and 506 of the IPC. Similarly, different kinds of causing danger are taken care of in ss.188, 268, 283, 285, 289, and other provisions. Similarly with the other "purposes" listed there, if, for instance, a provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like "annoyance", and should not be made "persistent". (At any rate, s. 505(1) of the IPC suffices for hoax bomb threats, so you don't need a separate provision in the IT Act).</p>
<p style="text-align: justify; ">I would argue that in its current form this provision is unconstitutional, since there is no countervailing interest in criminalising false and persistent "insults", etc., that will allow those parts of this provision to survive the test of 'reasonableness' under Art.19(2). Furthermore, even bits that survive are largely redundant. While this unconstitutionality could be cured by better, narrower wording, even then one would need to ensure that there is no redundancy due to other provisions in other laws.</p>
<h3>Section 66A(a)</h3>
<p style="text-align: justify; ">In s.66A(a), the question immediately arises whether the information that is "grossly offensive" or "menacing" need to be addressed at someone specific and be seen as "grossly offensive" or "menacing" by that person, or be seen by a 'reasonable man' test.</p>
<p style="text-align: justify; ">Additionally, the term "grossly offensive" will have to be read in such a heightened manner as to not include merely causing offence. The one other place where this phrase is used in Indian law is in s.20(b) of the Indian Post Office Act (prohibiting the sending by post of materials of an indecent, obscene, seditious, scurrilous, threatening, or grossly offensive character). The big difference between s.20(b) of the IPO Act and s.66A of the IT Act is that the former is clearly restricted to one-to-one communication (the way the UK's Malicious Communication Act 1988 is). Reducing the scope of s.66A to direct communications would make it less prone to challenge.<br /><br />Additionally, in order to ensure constitutionality, courts will have to ensure that "grossly offensive" does not simply end up meaning "offensive", and that the maximum punishment is not disproportionately high as it currently is. Even laws specifically aimed at online bullying, such as the UK's Protection from Harassment Act 1997, can have unintended effects. As George Monbiot notes, the "first three people to be prosecuted under [the Protection from Harassment Act] were all peaceful protesters".</p>
<h3 style="text-align: justify; ">Constitutional Arguments in Importing Laws from the UK</h3>
<p style="text-align: justify; ">The plain fact is that the Indian Constitution is stronger on free speech grounds than the (unwritten) UK Constitution, and the judiciary has wide powers of judicial review of statutes (i.e., the ability of a court to strike down a law passed by Parliament as 'unconstitutional'). Judicial review of statutes does not exist in the UK (with review under its EU obligations being the exception) as they believe that Parliament is supreme, unlike India. Putting those two aspects together, a law that is valid in the UK might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Art.19(2). That raises the question of how they deal with such broad wording in the UK.</p>
<h3 style="text-align: justify; ">Genealogy of UK Law on Sending 'Indecent', 'Menacing', 'Grossly Offensive' Messages</h3>
<p style="text-align: justify; ">Quoting from the case of DPP v. Collins [2006] UKHL 40 [6]:</p>
<p style="text-align: justify; ">The genealogy of [s. 127(1) of the Communication Act] may be traced back to s.10(2)(a) of the Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character. That subsection was reproduced with no change save of punctuation in s.66(a) of the Post Office Act 1953. It was again reproduced in s.78 of the Post Office Act 1969, save that "by means of a public telecommunication service" was substituted for "by telephone" and "any message" was changed to "a message or other matter". Section 78 was elaborated but substantially repeated in s.49(1)(a) of the British Telecommunications Act 1981 and was re-enacted (save for the substitution of "system" for "service") in s.43(1)(a) of the Telecommunications Act 1984. Section 43(1)(a) was in the same terms as s.127(1)(a) of the 2003 Act, save that it referred to "a public telecommunication system" and not (as in s.127(1)(a)) to a "public electronic communications network". Sections 11(1)(b) of the Post Office Act 1953 and 85(3) of the Postal Services Act 2000 made it an offence to send certain proscribed articles by post.</p>
<p style="text-align: justify; ">While the above quotation talks about s.127(1) it is equally true about s.127(2) as well. In addition to that, in 1988, the <a class="external-link" href="http://www.legislation.gov.uk/ukpga/1988/27/section/1">Malicious Communications Act</a><a class="external-link" href="http://www.legislation.gov.uk/ukpga/1988/27/section/1"></a> (s.1) was passed to prohibit one-to-one harassment along similar lines.</p>
<p style="text-align: justify; ">The UK's Post Office Act was eclipsed by the Telecommunications Act in 1984, which in turn was replaced in 2003 by the Communications Act. (By contrast, we still stick on to the colonial Indian Post Office Act, 1898.) Provisions from the 1935 Post Office Act were carried forward into the Telecommunications Act (s.43 on the "improper use of public telecommunication system"), and subsequently into s.127 of the Communications Act ("improper use of public electronic communications network"). Section 127 of the Communications Act states:</p>
<p class="callout" style="text-align: justify; ">127. Improper use of public electronic communications network<br />(1) A person is guilty of an offence if he — <br />(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or<br />(b) causes any such message or matter to be so sent.<br />(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he —<br />(a) sends by means of a public electronic communications network, a message that he knows to be false,<br />(b) causes such a message to be sent; or<br />(c) persistently makes use of a public electronic communications network.<br />(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.<br />(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).</p>
<p style="text-align: justify; ">Currently in the UK there are calls for repeal of s.127. In a separate blog post I will look at how the UK courts have 'read down' the provisions of s.127 and other similar laws in order to be compliant with the European Convention on Human Rights.</p>
<h3 style="text-align: justify; ">Comparison between S. 66A and Other Statutes</h3>
<p>Section 144, IPC, 1860</p>
<p style="text-align: justify; ">Power to issue order in urgent cases of nuisance or apprehended danger</p>
<ol>
<li style="text-align: justify; ">...<b>obstruction, annoyance or injury</b> to any person lawfully employed, or <b>danger </b>to human life, health or safety, or a disturbance of the public tranquillity</li>
</ol>
<p style="text-align: justify; ">Babulal Parate v. State of Maharastra and Ors. [1961 AIR SC 884] (Magistrates order under s. 144 of the Cr. PC, 1973 was in violation of Art.19(1)(a) of the Constitution).</p>
<p style="text-align: justify; "><i>A special thanks is due to Snehashish Ghosh for compiling the below table.<br /></i></p>
<table class="grid listing">
<tbody>
<tr>
<th>Section</th><th>Term(s)/phrase(s) used in 66A</th><th>Term(s)/ phrase(s) used in similar sections</th>
</tr>
<tr>
<td>Section 66A (heading)</td>
<td style="text-align: justify; ">Punishment for sending offensive messages through communication service, etc</td>
<td>Section 127, CA, 2003, "Improper use of public electronic communications network"</td>
</tr>
<tr>
<td>Section 66A(a)</td>
<td style="text-align: justify; ">Any person who sends, by means of a computer resource or a communication device</td>
<td>Section 1(1), MCA 1988, "Any person who sends to another person..."</td>
</tr>
<tr>
<td>Section 66A(a)</td>
<td>Grossly offensive</td>
<td style="text-align: justify; ">Section 1(1)(a)(i), MCA 1988; <br />Section 127(1)(a),CA, 2003; <br />Section 10(2)(a), Post Office (Amendment) Act, 1935*; <br />Section 43(1)(a), Telecommunications Act 1984*;<br /> Section 20, India Post Act 1898</td>
</tr>
<tr>
<td>Section 66A(a)</td>
<td>Menacing character</td>
<td>Section127(1)(a),CA, 2003</td>
</tr>
<tr>
<td>Section 66A(b)</td>
<td>Any information which he knows to be false</td>
<td style="text-align: justify; ">Section 1(1)(a)(iii), MCA 1988 "information which is false and known or believed to be false by the sender"; <br />Section 127(2)(a), CA, 2003, "a message that he knows to be false"<br /></td>
</tr>
<tr style="text-align: justify; ">
<td>Section 66A(b) “purpose of...” <br /></td>
<td>Causing annoyance</td>
<td>Section127(2), CA, 2003</td>
</tr>
<tr>
<td></td>
<td>
<p>Inconvenience</p>
</td>
<td style="text-align: justify; ">Section 127 (2), CA, 2003</td>
</tr>
<tr>
<td></td>
<td>Danger</td>
<td></td>
</tr>
<tr>
<td></td>
<td>Insult</td>
<td>Section 504, IPC, 1860</td>
</tr>
<tr>
<td></td>
<td>Injury</td>
<td style="text-align: justify; ">Section 44 IPC, 1860, "The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property."<br /></td>
</tr>
<tr>
<td></td>
<td>Criminal intimidation</td>
<td>Sections 503 and 505 (2), IPC, 1860</td>
</tr>
<tr>
<td></td>
<td>Enmity, hatred or ill-will</td>
<td>Section 153A(1)(a), IPC, 1860</td>
</tr>
<tr>
<td></td>
<td>Persistently by making use of such computer resource or a communication device</td>
<td>Section 127(2)(c), CA, 2003, "persistently makes use of a public electronic communications network."</td>
</tr>
<tr>
<td>Section 66A(c)</td>
<td>
<p>Deceive or to mislead</p>
</td>
<td>-</td>
</tr>
</tbody>
</table>
<hr />
<p><b>Notes</b><br />MCA 1988: <a class="external-link" href="http://www.legislation.gov.uk/ukpga/1988/27/section/1">Malicious Communications Act</a> (s.1)<br />CA: <a class="external-link" href="http://www.legislation.gov.uk/ukpga/2003/21/section/127">Communications Act 2003</a> (s.127)<br />*Replaced by Communications Act 2003</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. The Information Technology (Amendment) Bill, 2008, was one amongst the eight bills that were passed in fifteen minutes on December 16, 2008.<br />[<a href="#fr2" name="fn2">2</a>]. Inserted vide Information Technology Amendment Act, 2008.</p>
<p style="text-align: justify; ">This was re-posted in <a class="external-link" href="http://www.outlookindia.com/article.aspx?283149">Outlook </a>(November 28, 2012)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act'>https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act</a>
</p>
No publisherpraneshIT ActFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceFeaturedHomepage2012-12-14T09:51:17ZBlog EntryDraft nonsense
https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense
<b>Seriously flawed and dodgily drafted provisions in the IT Act provide the state a stick to beat its citizens with.</b>
<hr />
<p style="text-align: justify; ">Pranesh Prakash's <a class="external-link" href="http://www.timescrest.com/opinion/draft-nonsense-9274">op-ed was published in the Times of India</a> on November 24, 2012.</p>
<hr />
<p style="text-align: justify; ">Section 66A of the Information Technology Act once again finds itself in the middle of a brewing storm. It has been used in cases ranging from the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti Chidambaram case, the Chinmayi case, to the current Bal Thackeray-Facebook comments case. In all except the Karti Chidambaram case (which is actually a case of defamation where 's. 66A' is inapplicable), it was used in conjunction with another penal provision, showing that existing laws are more than adequate for regulation of online speech. That everything from online threats wishing sexual assault (the Chinmayi case) to harmless cartoons are sought to be covered under this should give one cause for concern. Importantly, this provision is cognisable (though bailable), meaning an arrest warrant isn't required. This makes it a favourite for those wishing to harass others into not speaking.</p>
<p style="text-align: justify; ">Section 66A prohibits the sending "by means of a computer resource or a communication device" certain kinds of messages. These messages are divided into three sub-parts : (a) anything that is "grossly offensive or has menacing character";(b) information known to be false for the purposes of "causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" and is sent persistently;or (c) "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages". This carries with it a punishment of up to three years in jail and a fine without an upper limit. As even non-lawyers can see, these are very broadly worded, with use of 'or' everywhere instead of 'and', and the punishment is excessive. The lawyers amongst the readers will note that while some of the words used are familiar from other laws (such as the Indian Penal Code), they are never used this loosely. And all should hopefully be able to conclude that large parts of section 66A are plainly unconstitutional.</p>
<p style="text-align: justify; ">If that is so obvious, how did we end up getting this law? We copied (and badly at that) from the UK. The sad part is that the modifications that were introduced while copying are the bits that cause the most trouble. The most noteworthy of these changes are the increase in term of punishment to 3 years (in the UK it's 6 months); the late introduction (on December 16, 2008 by A Raja) of sub-section (c), meant as an anti-spam provision, but covering everything in the world except spam;and the mangling up of sub-section (b) to become a witches brew of all the evil intentions in this world.</p>
<p style="text-align: justify; ">Further, we must recognise that our Constitution is much stronger when it comes to issues like free speech than the UK's unwritten constitution, and our high courts and Supreme Court have the power to strike down laws for being unconstitutional, unlike in the UK where Parliament reigns supreme. The most the courts can do there is accommodate the European Convention on Human Rights by 'reading down' laws rather than striking them down.<br /><br />Lastly, even if we do decide to engage in policy-laundering, we need to do so intelligently. The way the government messed up section 66A should serve as a fine lesson on how not to do so. While one should fault the ministry of communications and IT for messing up the IT Act so badly, it is apparent that the law ministry deserves equal blame as well for being the sleeping partner in this deplorable joint venture. For instance, wrongfully accessing a computer to remove material which one believes can be used for defamation can be considered 'cyber-terrorism'. Where have all our fine legal drafters gone? In a meeting, former SEBI chairman M Damodaran noted how bad drafters make our policies seem far dumber than they are. We wouldn't be in this soup if we had good drafters who clearly understand the fundamental rights guaranteed by our constitution.</p>
<p style="text-align: justify; ">There are a great many things flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the 2008 winter session of Parliament. For far too long the Indian government has spoken about "multi-stakeholder" governance of the internet at international fora (meaning that civil society and industry must be seen as equal to governments when it comes to policymaking for the governance of the internet). It is about time we implemented multi-stakeholder internet governance domestically. The way to go forward in changing this would be to set up a multi-stakeholder body (including civil society and industry) which can remedy this and other ridiculously unconstitutional provisions of our IT Act.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense'>https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense</a>
</p>
No publisherpraneshIT ActSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet Governance2012-12-03T09:08:10ZBlog EntrySection 66F of the Information Technology Act, 2000
https://cis-india.org/internet-governance/resources/section-66f-of-the-i-t-act-2000
<b>Section 66F: Punishment for cyber terrorism.</b>
<p>1<b>[66-F. Punishment for cyber terrorism</b>.—(1) Whoever,—</p>
<p class="p3" style="text-align: justify; ">(A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by—</p>
<p class="p4" style="text-align: justify; ">(<i>i</i>) denying or cause the denial of access to any person authorised to access computer resource; or</p>
<p class="p4" style="text-align: justify; ">(<i>ii</i>) attempting to penetrate or access a computer resource without authorisation or exceeding authorised access; or</p>
<p class="p4" style="text-align: justify; ">(<i>iii</i>) introducing or causing to introduce any computer contaminant,</p>
<p class="j1" style="text-align: justify; ">and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under Section 70; or</p>
<p class="p3" style="text-align: justify; ">(B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise,</p>
<p class="j1">commits the offence of cyber terrorism.</p>
<p style="text-align: justify; ">(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life.]</p>
<p>1<i>. Inserted </i>by Act 10 of 2009, Section 32 (w.e.f. 27-10-2009)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/resources/section-66f-of-the-i-t-act-2000'>https://cis-india.org/internet-governance/resources/section-66f-of-the-i-t-act-2000</a>
</p>
No publishersnehashishIT ActInternet Governance2012-12-02T09:39:01ZPageThe Last Word: Is there a need to review Information Technology Act?
https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act
<b>Does the high-handed arrest of two young girls mean it's time to review and revise the IT Act?</b>
<p style="text-align: justify; ">Aryaman Sundaram, Pavan Duggal, Pranesh Prakash and Ravi Visvesvaraya Prasad took part in a discussion with Karan Thapar on section 66A of the IT Act. This was aired on CNN-IBN on November 20, 2012.</p>
<p style="text-align: justify; ">Pranesh Prakash said that it was just not a history of misuse of section 66A of the IT Act because that presumes that the law is otherwise fine and it has just been applied wrongly. This law is fundamentally flawed. It is unconstitutional. It is like a law in which there is a provision on rape, murder, theft, nuisance, everything put together in a single section with the same punishment being given for all of them. This obviously is not good law making but that is exactly what has been done in this case by taking bits from laws in the UK and from elsewhere and mashing them all up into one omnibust gargantuan monster which is unconstitutional.<br /><br />Pranesh Prakash also added that the fact is that if you have bad laws they will be used to harass people. Having good law is one part of that. Apart from that there has been also other laws which have been misapplied in this case. In all these recent cases, section 66A of the IT Act wasn't the only provision used. This particular section has been used in conjunction with some other laws. So section 66A of the IT Act independently is not required. There are other laws in the Indian Penal Code and elsewhere which are usually enough to cover all the things that section 66A of the IT Act is right now covering. It is just an add on provision that really can't justify its existence unless it is really reduced in scope.</p>
<hr />
<p style="text-align: justify; "><a class="external-link" href="http://ibnlive.in.com/videos/306519/the-last-word-is-there-a-need-to-review-information-technology-act.html">Watch the full video that was aired on CNN-IBN</a></p>
<p>
For more details visit <a href='https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act'>https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act</a>
</p>
No publisherpraskrishnaIT ActFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceVideoCensorship2012-11-21T12:10:15ZNews ItemArbitrary Arrests for Comment on Bal Thackeray's Death
https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A
<b>Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray's death. Pranesh Prakash explores the legal angles to the arrests.</b>
<h2 id="facts-of-the-case">Facts of the case</h2>
<p>This morning, there was <a href="http://www.mumbaimirror.com/article/2/2012111920121119043152921e12f57e1/In-Palghar-cops-book-21yearold-for-FB-post.html">a short report in the Mumbai Mirror</a> about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:</p>
<blockquote>
<p>Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.</p>
<p>The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.</p>
<p>“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.</p>
</blockquote>
<h2 id="what-provisions-of-law-were-used">What provisions of law were used?</h2>
<p>There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"<sup><a class="footnoteRef" href="#fn1" id="fnref1">1</a></sup> in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant <a href="https://cis-india.org/internet-governance/resources/section-295a-indian-penal-code">section 295A of the IPC</a> ("outraging religious feelings of any class") and <a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act">section 66A of the IT Act</a> ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal's Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)</p>
<p>Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.<sup><a class="footnoteRef" href="#fn2" id="fnref2">2</a></sup> Section 66A of the IT Act is cognizable and bailable.</p>
<p>Update: Some news sources claim that <a href="http://www.vakilno1.com/bareacts/indianpenalcode/s505.htm">section 505(2) of the IPC</a> ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.</p>
<h2 id="was-the-law-misapplied">Was the law misapplied?</h2>
<p>This is clearly a case of misapplication of s.295A of the IPC.<sup><a class="footnoteRef" href="#fn3" id="fnref3">3</a></sup> This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book <i>Shivaji: Hindu King in Islamic India</i> happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.</p>
<p>Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).<sup><a class="footnoteRef" href="#fn4" id="fnref4">4</a></sup> That 'liking' is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the 'freedom of speech <b>and expression</b>', so even non-verbal expression is protection.</p>
<h2 id="role-of-bad-law-and-the-police">Role of bad law and the police</h2>
<p>In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who 'liked' her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in <a href="http://www.hindustantimes.com/India-news/NewDelhi/Katju-demands-action-against-Mumbai-cops-for-arresting-woman/Article1-961478.aspx">demanding that such police officers should be punished</a>.</p>
<h2 id="rule-of-law">Rule of law</h2>
<p>Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju's article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?<sup><a class="footnoteRef" href="#fn5" id="fnref5">5</a></sup></p>
<h2 id="social-media-regulation-vs.-suppression-of-freedom-of-speech-and-expression">Social Media Regulation vs. Suppression of Freedom of Speech and Expression</h2>
<p>This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.</p>
<p>This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one's digital signature if one doesn't pay up a penalty that's been imposed.<a href="#fnref1">↩</a></p>
</li>
<li id="fn2">
<p>The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn't an automatic right to be enjoyed by paying a bond-surety amount set by the police.<a href="#fnref2">↩</a></p>
</li>
<li id="fn3">
<p>Section 295A of the IPC has been held not to be unconstitutional. The first case to <a href="http://ibnlive.in.com/generalnewsfeed/news/pil-to-declare-sec-66a-as-unconstitutional-filed/1111666.html">challenge the constitutionality of section 66A of the IT Act</a> was filed recently in front of the Madurai bench the Madras High Court.)<a href="#fnref3">↩</a></p>
</li>
<li id="fn4">
<p>One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.<a href="#fnref4">↩</a></p>
</li>
<li id="fn5">
<p>This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.<a href="#fnref5">↩</a></p>
</li>
</ol>
<hr />
<p>This blog entry has been re-posted in the following places</p>
<ul>
<li><a class="external-link" href="http://www.outlookindia.com/article.aspx?283033">Outlook</a> (November 19, 2012).</li>
<li><a class="external-link" href="http://kafila.org/2012/11/19/social-media-regulation-vs-suppression-of-freedom-of-speech-pranesh-prakash/">KAFILA</a> (November 19, 2012).</li>
</ul>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A'>https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A</a>
</p>
No publisherpraneshIPCIT ActFreedom of Speech and ExpressionFeaturedFacebookCensorship2013-01-02T03:42:37ZBlog Entry Women arrested for Facebook post: Did cops act under Sena pressure?
https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7
<b>After Bal Thackeray's death, during the Mumbai Bandh, a 21-year-old criticised the shutdown on her Facebook page — her friend approved of it — next thing they know, they are facing a case, and this morning they were arrested. </b>
<p style="text-align: justify; ">YP Singh, Alyque Padamsee, Rohan Joshi, Karuna Nundy and Pranesh Prakash took part in a discussion about the arrest of two girls over a Facebook comment. The discussion was aired in NDTV on November 19, 2012.</p>
<p style="text-align: justify; ">The anchor asked Pranesh Prakash:</p>
<p style="text-align: justify; ">Who are these people scrolling through people's Facebook posts and Twitter accounts, finding these comments and taking action?</p>
<p style="text-align: justify; ">Pranesh Prakash said that it could be anyone. The reality is doesn't really matter because the laws are written in such a way that if it is public and stuff that is on Facebook for different purposes can either be public or private, if it is public these laws can very often apply and that is a problem. We haven't quite figured out to what extent these laws apply. The IT Act section 66A for instance, is unconstitutional, section 295 A which has been applied, and section 505 which also seems to have been applied in this case make it a clear case of misappropriation of those provisions. These kind of arrests will happen. It doesn't quite matter if we have right laws at one level and it clearly doesn't help if we have bad laws. What we need to do at least in part to remedy the situation is to amend the IT Act to make it consonant and consistent with civil and political rights and to do so in multi-stakeholder fashion involving civil society, industry and government. Right now it doesn't protect privacy and freedom of speech as much as it should.</p>
<hr />
<p style="text-align: justify; "><a class="external-link" href="http://www.ndtv.com/video/player/ndtv-special-ndtv-24x7/women-arrested-for-facebook-post-did-cops-act-under-sena-pressure/255407?hp&video-featured">Watch the full video aired on NDTV</a></p>
<p>
For more details visit <a href='https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7'>https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7</a>
</p>
No publisherpraskrishnaIT ActFreedom of Speech and ExpressionInternet GovernanceVideoCensorship2012-11-21T11:17:37ZNews Item