“Cyber Flashing” exposes the Error of Judgement on scrapping of Section 66A

The new cyber crime reported from UK where a women has complained of unsolicited obscene image being flashed on her iPhone has once again highlighted why the scrapping of Section 66A was an erroneous judgement of the Supreme Court of India.

The case reported here by BBC may still come under Section 67 of ITA 2008 since the image can be considered as “Obscene”. However if the same technology is used for any sending any image which is not considered “obscene”, it would be considered as “Free Speech”, thanks to the judgement in the Shreya Singal case. Despite whatever adverse impact the image may have on the recipient including he or she going into depression and committing suicide, it would still be defendable as “Free Speech”.

The Supreme Court may say that they have no responsibility on the after effects of any of their decisions and it is for the Government to take corrective action. Perhaps they are right in legal terms but the fact that the Court was not in a position to understand the impact of their decision and why Section 66A was not required to be scrapped to provide justice against its misuse by Police on several occasions cannot be denied.

Instead of the Court waiting for the Government to bring back Sec 66A in a re drafted form, it would be good if the Supreme Court suo moto admits its mistake and recalls its own order and modify it suitably.

But will any Court have the courage to admit its mistake? on its own?..

Naavi

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Case of Blind leading the Blind-Cyber Crime Statistics from NCRB

Yesterday, there were preliminary reports about the Cyber Crime statistics released by NCRB for 2014. This is a set of statistics gathered by collating the data from different state level police. Today some enthusiastic journalists have started writing their analytical articles commenting on what the statistics indicate.

Yesterday we briefly indicated that the statistics are misleading but dismissed it as indicative of the ignorance of police in classifying complaints based on whatever suggestions they receive from the public prosecutors. Today when we see media doing its bit to add their ignorance, it is time to once again remind the public that the inferences suggested by some of the media today are like the blind leading the blind. It is directing the society to complete untruth.

Our experience earlier indicates that such misdirections affect even Supreme Court judges and erroneous judgement are delivered because even judges tend to believe what the ignorant media flashes in big head lines particularly in Delhi.

I therefore pick up the report of Hindustan Times today which is titled “Stats from 2014 reveal horror of scrapped section 66A of IT Act”The article is credited to Mr Aloke Tikku of Hindustan Times and I would like to address this article directly to him. Those of you who know him personally ensure that this article is forwarded to him so that he can publish a rejoinder if he should not cause further damage with wrong analysis.

The article quotes Shreya Singhal as saying “These statistics are shocking. I had assumed there may be a few hundred cases, at worst……It validates the judgment even more than when it was delivered,”

I completely disagree with this view which further highlights the fact that Ms Shreya Singhal supported by some high profile advocates of Delhi created a web of misperception that Section 66A was used repeatedly to curb the right to freedom of expression guaranteed by the Indian Constitution and needed to be scrapped. The honourable judges lapped up the argument and scrapped the section and cried “Victory for Democracy”. Now the same band wagon is quoting the NCRB statistics to say ” How good it was that the section 66A was scrapped”.

There have been a detailed discussion of Section 66A in these columns earlier and there is no need to reiterate the views once again. However, it is necessary to remind the Section 66A baiters that the section was meant to address the harmful effects of messages sent through e-mail and SMS/MMS systems and not for face book, twitter or other social media publications. Police made the mistake of adding this section to book political opponents of ruling party. They would have added any other section if necessary as long as they could please their political masters. Scrapping of the section 66A solely based on such cases booked by police under the section was a betrayal of ignorance all round.

Now, let us look at the NCRB statistics. What excites the Scrap 66A lobby is that 1196 cases were pending under Sec 66A and 4192 more added in 2014. Obviously this looks alarming if it is a true reflection of offences under the section. The same statistics indicates that no cases were booked under Section 66. To any body who is familiar with ITA 2008, Section 66 is an omnibus section which can bring any offence involving a computer under its ambit. If police report zero cases under this section and book 4192 cases under Section 66A, it appears that they consider Section 66A is a sub section of Section 66. There are 1294 cases booked under Section 66B, 66C and 66D which should have automatically attracted section 66 as well.  The statistics donot therefore add up.

Similarly I can see other inconsistencies in booking of cases under Section 67C or 68 and “others”. Without going into individual case facts it is difficult to understand how the cases were booked under the specific sections as indicated.

I want the journalists to take a relook at how they report Section 66A issues since it has been flogged for all the wrong reasons.

Naavi

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Bangalore is the Cyber Crime Capital of India?

According to the recent NCRB data on cyber crimes released, Bangalore is reported to be the leading metro with 675 cases being registered under ITA 2008.

Refer article in Hindu

Hyderabad stood second with 386 cases followed by Jaipur and Lucknow.

We must however not read too much into this city leadership. This only indicates that Police in Bangalore and Hyderabad  are more aware of the Cyber Crimes and hence there will always be more cases filed here under ITA 2008.

Detailed report is available on NCRB site here:

The number of cases under different sections on an all India basis are as follows.

Section Cases pending from previous year Cases reported during the year
Sec 65 26 89
Sec 66
Sec 66A 1196 4192
Sec 66B 31 82
Sec 66C 255 784
Sec 66D 245 428
Se 66E 26 62
Sec 66F 1 5
Sec 67
Sec 67A 196 749
Sec 67B 4 5
Sec 67C 3 4
Sec 68 1 3
Sec 69 0 2
Sec 69A 0  1
Sec 69B 0 0
Sec 70 0 0
Sec 71 1 5
Sec 72 6 16
Sec 72A 0 2
Sec 73 0 0
Sec 74 12 3
Others 243 769
Total 2246 7201

 

It is interesting to observe the motives of criminals as recorded by the Police in the above cases. 2363 cases booked during the year represented financial greed or extortion or fraud as motives. However the value of money involved is not known. Around 808 cases appeared to be related to defamation.

If we take a deeper look at the way the reported offences have been classified, it is clear that even after 15 years of ITA 2000 and 7 years of ITA 2008, the Police are yet to understand the purpose of different sections and keep booking offences under wrong sections.

I am sure that Police think Section 67C is an obscenity related offence. They may not be able to  distinguish Section 66 from Sec 66A.

While statistics are very important for planning  for future, I hope NCRB ensures that Police are trained to classify crimes properly.  Most of the cases, Police are mislead by the PPs and the errors in classification may therefore be attributed to lack of understanding of ITA 2008 by PPs. I hope state governments do address this issue seriously.

Naavi

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How naive can journalists in Hindustan Times get?

Hindustan Times is considered a news paper with a history. With the years of experience should have come certain maturity in journalism and principles of ethics. But one doubts if Hindustan Times editor had any inkling of what the article published today under the title “The Darknet: A secret world of snuff porn, drugs and guns” and “In The shadows of Darknet, a shelter for crusaders and law breakers alike” under credit to two authors Pranav Dixit and Rezaul H Laskar, could mean in legal terms.

The articles also contain some self admissions of illegal drug trafficking and consumption activities which can be probed to logical conclusion.

This article was perhaps aimed at painting the Government of India at present in bad light and to promote usage of pornographic content by internet browsers.

The article contains URLs of several pornographic websites, and one of the print editions contains a step by step guideline of how to use dark net to browse such sites.

Naturally there has been a question raised by many whether Hindustan Times is teaching everybody including children how to access dark net and pornographic content on the web.

This is nothing different from running a terrorist training camp or at least a training camp for thieves on how to commit burglary.

Normally sub editors and editors regulate the content which inexperienced journalists try to post in the news paper. But in this case it appears that Hindustan Times had no controls to prevent such blatant illegal coaching.

In order to teach a lesson in ethics to the two journalists who have authored the article and the editors who have failed to carry out due diligence, I draw the attention of the Police in Delhi, the Press Council and the Government to initiate appropriate actions against the concerned persons.

If Government does not show the resolve to pull up such journalists like they rightly did against some TV channels for their coverage of Yakub Memon’s hanging, the unethical and unscrupulous journalists will defeat the very purpose of law such as Section 67B of ITA 2008.

I also call upon the Narcotics Control division to take note of what is stated in the article and follow up.

The Chief Editor of Hindustan Times needs to apologize to the public for such a blatant error of judgement on the part of his publication.

Naavi

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DomainX 2015 conference in Bangalore and Emerging scenario of “domaineering”

Bangalore saw a congregation of enthusiastic domain investors on August 7th and 8th in the second DomainX conference  in India, held at Taj WestEnd. There were several international participants and also from across the country demonstrating a growing interest in “Domaineering”.

It is a part of internet history that registering of popular domain names in the initial stages created huge wealth for some smart domain registrants in the early days of internet. However, after the emergence of UDRP and a number of consistent decisions upholding the rights of the trademark owners against domain registrants, a view prevailed that physical society money power had prevailed over the Netizens and it was unsafe to register any domain name which had a value.

Over a period however a fine distinction has developed between domain names registered in bad faith and likely to cause “consumer confusion” with popular brands and/or meant to prevent the legitimate brand owner from registering his own domain name which were identified as “Cyber Squatting” and innovatively constructed domain names with a potential to be used for business as products that can be created and also traded for profit which are the subject matter of domaineering.

Understanding this difference between “Cyber Squatting” and “Domaineering” is an important step towards considering any investment in domain names.

Naavi was a pioneer in the field of finding solutions to resolving of domain name disputes and came up with two important suggestions way back in 2002 to create

a) Trusted third party disclaimer system (www.lookalikes.in)

b) Economical and legally sustainable online arbitration system (www.arbitration.in)

However the market at that time did not appear to be ripe to accept these suggestions since the concepts remained at pilot stage.

It appears to the credit of some innovative business minds some of whom were present in the DomainX 2015 conference that there is now a growing interest in identifying “Domain Names” as a class of investment which can be traded. Case studies of how some of the participants made money in buying and selling domain names shared during the conference made one sit up and take notice of the opportunities.

At the end of the conference one could recognize that many participants went back with a feeling that they too should start looking at this class of investment.

It was therefore a successful conference which met with its objectives of creating interest in the field of “Domaineering”.

The undersigned participated in the conference as  a Cyber Law Educationist in the legal panel and shared some of his views along with others. The objective of the panel discussion was however limited to the discussion of UDRP and hence all relevant legal issues didnot come for detailed discussion.

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The undersigned who is also  an ex Merchant Banker and a long time Financial products Marketer, did have many interesting observations arising out of the conference on the concept of “Domain Name as a class of investments”, “Trading of Domain Names”, “Need for Government Policy Changes”, “Protection of Domain Name investors in India”, “Foreign Exchange and Tax implications of Domaineering” etc. These will be explored further in future articles.

At a corner of my mind is also a concern that like in the case of “Bitcoins”, the field of domaineering may have to fight the prospect of keeping its activities on the right side of law or face a legal backlash. Another concern is how the changes in technology in the form of increasing influence that Mobiles are having on our internet activity could affect the future prospect of domaineering.

At the same time, the undersigned also sees a better prospect of making services such as lookalikes.in and ceac  fortified  arbitration.in  more relevant if suitable technology partners emerge besides the additional prospects arising for services like Cyber-notice.com.

Also the need for Cyber Insurance industry to be pushed to debate the status of  domain names as an asset class both for the users and investors has emerged.

We will devote some of the next few articles here to discuss these issues for the general information of the public and to create a platform for further debate.

I invite the suggestions of the readers and their comments in this regard.

Naavi

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Supreme Court admits Section 66A is necessary. Naavi.org view vindicated

We refer to the various articles published in this forum (Refer here) on the judgement in the Shreya Singhal Case in which the honourable Supreme Court bench of Justices, F.Nariman and J. Chelmeshwar on 24th March 2015 held that Section 66A of ITA 2008 was not meeting the requirements of constitution and it is so badly drafted that it cannot be “read down”.

The essence of our argument was that the decision was based on a wrong premise that Section 66A was adversely affecting “Free Speech” and was probably guided by a preconceived notion that the arrests made by the Police under Section 66A were all done under the correct interpretation of Section 66A.

On the other hand the facts were different. All the arrests which made the petitioner take up the case to the Court and brought apparently eminent advocates into an argument that the section is unconstitutional were based on “Publishing of content” and not on “Sending of Messages” and hence the entire case was conducted under an erroneous presumption.

As a result the errors of judgement of the police in the field was carried through upto the Supreme Court  and resulted in the quashing of the section.

The Government was incapable of putting up the right argument and let the petition carry through.

The irony was that all those who were supporting Section 66A suddenly turned out as champions of free speech and hailed the decision of the Supreme Court as “Land Mark Judgement”.

Journalists were equally ignorant and in pursuance of a populist opinion praised the decision sky high.

In this entire cacophony, Naavi.org had the conviction to stick its neck out and call the decision a “Mistake” and tried to persuade the Government to apply for a curative petition.

Unfortunately the Government did not share the conviction nor was concerned enough to apply for a revision.

In this background, it is now amusing but satisfying to observe that another bench of the Supreme Court headed by Justice Dipak Misra and Prafulla C Pant seems to have felt the need for  reintroduction of Section 66A  and a need to regulate Social Media.

Refer Article in Times of India

The court’s observation was reportedly made when senior advocate L Nageswara Rao informed the bench that a message was recently circulated on WhatsApp that he was involved in a case of Section 376 of IPC (rape).

Senior advocate K Parasaran, who was assisting the court as amicus curiae, also appears to have cited a recent incident in which wrong information regarding him was widely circulated on the social media.

We are pleased that between March 24 to August 6, the euphoria created by quashing of Section 66A has evaporated and better sense appears to have been restored.

Let’s us hope that at least now the Government of India will draft the revised section to replace Section 66A properly so that uninformed enthusiasts like Shreya Singhal donot rush to Supreme Court and be instruments of creating bad law.

Naavi

Earlier Articles in Naavi.org are available here:

Also here

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