Have You ever suffered from Harassment over E Mails and SMS?

The recent Supreme Court judgement in the case of Shreya Singhal Vs Union of India which resulted in the scrapping of Section 66A of Information Technology Act 2008 has opened up a debate on whether a specific remedy for E-Mail/SMS/MMS harassment was required in India and going ahead whether the Supreme Court should be requested to review the decision.

The scrapping of Section 66A by the Supreme Court was attributed to the mistaken impression that the section caused the wrongful punishment to persons like the Cartoonist Assem Trivedi, Professor Mahopatra, the Face book users Shaheen and Ritu (Palghar girls), the Twitter user Ravi Srinivasan and infringed on the “Right to Freedom of Expression” guaranteed under our constitution under article 19(1).

When a Court arrives at a judgement based on a mistake of fact, there is a duty  on the Court to correct its erroneous judgement. Such correction can be done by the Court recalling its judgement or a review being undertaken by another larger bench of the Court.

While it is admitted that Section 66A was often used to book cases to harass  Facebook and Twitter users  as well as Bloggers, it must be said that such cases were the result of political interference in law enforcement. In most of these cases, the lower magistrate courts failed to provide immediate relief but the higher courts did provide relief when the cases reached them.

It must however be recognized that there are many other genuine instances when people and specially young girls were harassed by E Mail or SMS messages which resulted in complaints being filed with the Police and relief obtained many times even without further proceedings in a Court.

Presently there is a wrong perception in the Internet world that “Harassing over Twitter and Facebook” and “Trolling” is an acceptable behavior and has the sanction of the Supreme Court of India as a “Freedom of Expression”. If this perception is not corrected, the Internet will continue to become a law less jungle.

After the Supreme Court verdict, the media has vociferously come in support of the decision hailing it as a “Land Mark” etc. Such glorification of the judgement was a result of ignorance on the part of the media anchors besides the general respect and trust one has on the highest Court in the country.

However, one section of the Cyber Law observers in the country including the undersigned have been categorical in coming to the view that the Judgement is doing more harm than good. It is felt that “Scrapping” of the section instead of “Reading it down” or “Guiding the Government” to clarify the section with examples inserted into a notification was an unnecessary excessive reaction from the Court borne out of the mistaken belief that the section 66A indeed hurt the right to freedom of expression.

It is proposed that the discussion and debate in this regard should continue and the truth about Section 66A should be brought out. Though the Government has an option to bring back the legislation through an amendment, it is considered that this is a long drawn process and just as the land bill , it will be mired in all sorts of controversies in the political world and will take a long time to see light. Hence the option of seeking a review of the judgement is considered a plausible solution. After all we are trying to establish certain basic principles of law making such as  “What constitutes vagueness in law” and “Whether vagueness in law” or “misapplication of law by Police” is a sufficient ground for scrapping of a statutory provision, “Whether the Supreme Court came to a wrong conclusion based on a misrepresentation by the petitioners that Section 66A referred to “Internet Speech” instead of “Messaging through electronic documents” etc., and such a decision needs to be examined by a larger bench of the Supreme Court.

In this connection some of the organizations engaged in Cyber Law Advocacy are contemplating a seminar to be held either in Chennai or Bangalore.  In this connection, I seek information from the public on instances of harassment they have come across in recent times with the use of E mails, SMS/MMS/WhatsApp etc. I request even members of the police from different states to inform us about cases filed under Section 66A. (We believe that most of these cases are genuine cases not prompted by political influence). I also seek comments from professionals on the suggestion of a seminar as proposed.

Kindly send your views to the undersigned through e-mail or otherwise.

Naavi

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Bharadwaj’s revelation has derailed BJP’s approach to Section 66A

The statement of H R Bharadwaj that Section 66A was deliberately misused by Congress government has suddenly given a twist to the discussions with BJP becoming more aggressive in defending the current Supreme Court verdict for scrapping Section 66A. BJP spokesperson in Times Now is saying that BJP had opposed the introduction of specific words in Section 66A which has been objected to by the Supreme Court today.

Times Now has also been stating without knowing the facts that the authors of the section 66A were perhaps interested in protecting the interests of Sonia Gandhi and Congress leaders.

But as a continuing observer of the developments of ITA 2008 right from 2005 when Mr ManMohan Singh agreed to order a review of ITA 2000 after the Baazee.com issue, I consider that it is not correct to say that Section 66A was introduced to protect any body in Congress/UPA. However once the law was available, Mr Kapil Sibal perhaps thought of using it to take control of Social Media at different points of time leading to the last elections.

The law itself was credited to the standing committee and we have appreciated the law as drafted at that time for the security intentions it displayed. The exact wordings were of course a matter for drafting experts to take care and they did refer to other countries and picked up the required clauses.

Wordings for Section 66A itself was taken from the UK law and was verbatim lifted. The passage was done in a few minutes without discussion which was also the case when ITA 2000 was passed earlier. At the time ITA 2000 was passed, Kapil Sibal was in the opposition and said section 80 was draconian. When ITA 2008 was passed, A Raja was the IT Minister and Kapil Sibal was defending it. At both times he might be doing it as a politician and not as a lawyer who understood the provisions. Let’s neither give the politicians credit or discredit for the section 66A.

I wish politicians who donot know the legislative history of Section 66A donot make statements on TV and look to collect brownie points as champions of freedom of speech. I request Mr Sambit Patra not to make wrong statements and also drag Mr Arun Jaitely to say some thing in support of the squashing of Section 66A.

The fact is that the law was misused for political reasons and Section 66A was only an excuse. It worked because Police, Politicians and as we now know even the Judiciary did not understand Section 66A and thought that it could be applied for the kind of cases they came across in Palghar etc. In the bargain they tainted the section so much that today everybody believes that it is  “Draconian”. Reality is that in comparison, there are more draconian clauses both in ITA 2008 as well as IPC. If Police and Politicians want to misuse them, they can very well do so. What the current Supreme Court  decision has done is that a genuine deterrant to be used in genuine cases has been removed and this will cause more problems in the society in future.

If BJP does not want to complicate things further, it must shed it’s reservations and ask for a review of the Section 66A squashing decision by a larger bench of Supreme Court. They must be prepared to listen to the experts who are confident that Section 66A was not meant to curtail freedom of speech and was to be addressed only in cases of “Messages” and not for publishing of content. Perhaps T.K.Vishwanathan and Gulshan Rai will be having a good knowledge about the legislative intent behind the section and should be brought in as witnesses in this regard.

The entire decision of the J Chelameshwar-R F Nariman verdict was based on the presumption that Section 66A was applicable for publishing of content which was wrong. Since the premise itself was wrong, the verdict deserves to be over turned.

Passing an amended law is a long drawn affair and the void created by the removal of Section 66A needs to be bridged at the earliest.

I therefore request BJP to take suitable steps in this regard to file a review petition and not try to hide behind the myth that this Supreme Court decision is in support of freedom of speech and any move to oppose it, will have adverse public opinion. At best some TV channels who  does not understand Cyber Laws will keep shouting for a few days and it has to be ignored.

Naavi

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SEBI to introduce Fraud Disclosure Norms

In a long awaited move, SEBI is in the process of introducing norms for disclosure of fraud information for listed companies.

According to the guidelines likely to be announced by the Securities and Exchange Board of India (Sebi) on Monday, companies will have to make public any fraud committed by directors and employees, litigation against them and the impact of this on financials, reveal details about shareholders and loan agreements besides providing estimates of losses caused by natural calamities.

Refer Article

While the move is welcome, it appears to fall short of the requirements of the share holders since the information now available appears to require only frauds committed by insiders and those which result in litigation.

There is a need for companies to also share information on their losses arising out of security breaches so that shareholders are aware of the IT risks that the organizations face as part of their operational risks.

Presently, under  Clause 49 in India, a declaration to the effect that necessary controls are in place is required. May be this can be extended to the declaration of “Estimated Financial Risk arising out of Information Security Risks”. In the case of Banking institutions here is already a fraud report being submitted to RBI and an NPA figure is also declared which indicates the financial risks in respect of loan assets. However presently there is no information available on the financial risks that are quantified from the information security risks. If SEBI gives a thought to this it should be useful.

Naavi

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“The Judgement is unfortunate” ..says Cyber Expert from Chennai

Reflecting on the Supreme Court judgement in Shreya Singhal Vs Union of India, Mr Rajendran, a cyber expert from Chennai wrote as follows:

“No doubt it is a landmark judgement. But we in Cyber Society of India (and myself personally) consciously feel that the judgement is ‘unfortunate’ . In the enthusiasm to protect the freedom of expression, and laying more emphasis on it, we miss one vital point that the police (and the victims, potential victims, women in particular) lost a powerful weapon in our arsenal. In future, if a girl is harassed repeatedly (remember the phrases ‘grossly offensive’ or ‘menacing character’) by sms or emails, can any one successfully bring conviction under under our IPC?

Even the present NDA government is playing to the gallery in showcasing itself as the saviour of human rights to express, Press-friendly and media-friendly and in the process failed to stoutly defend the power that the IT Amendment Act 2008 thoughtfully gave. The government could have (and should have) submitted that the phrases like ‘grossly offensive’, ‘menacing character’ etc are sometimes misued and more clarity will be given by way of framing Rules, like it was done for blocking of websites and definition of ‘sensitive and personal information’.

The misuse of Section 66A was itself a Press hype. The Press failed to report the genuine cases filed by the Police resulting in well deserved conviction and always spoke about the high profile cases of Bal thackerey, Pondicherry case, Mamta Banerjea government cartoonist, Chinmayee case etc all of which were obvious misuses of power only.

Vagueness in interpretation, ambiguity in definition and reported misuse does not justify repealing of the Act or any section.

Perhaps, after a few years from now, the police, the press and all others who express jubilation now will repent that cyber stalking and misuse of the Internet cannot be curbed in this country (especially when a girl in the family is harassed in the Internet or by email or an offensive message).

Regards

V. Rajendran
Advocate and Cyber Law Consultant
President, Cyber Society of India
URL : venkrajen.in

 

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“Forgive them Because they donot know what they are celebrating”..

Mr Mahendra Limaye, a practicing advocate from Nagpur who has been active in Cyber Law related litigation as well as many PILs in the domain has reacted to the way journalists have been hailing the recent Supreme Court verdict with these words…

Quote:

The hysteria shown by activists after the verdict is yet to settle down. Everybody is celebrating it as day of independence of internet. I can only PREY TO GOD “FORGIVE THEM BECAUSE THEY ARE NOT KNOWING WHAT THEY ARE CELEBRATING”.

UnQuote

Mr Limaye has also analysed the Supreme Court judgement in his blog ( Refer here) where he has made many critical observations some of which are reproduced here.

On Informed Citizeny

“Hon. SC has reposed more faith in wisdom of citizens than law makers. Indeed Time will upset the current faith and belief of SC that Free Trade of Ideas on Social platforms is according to the true spirit of Freedom of Speech and Expression. Informed citizeny is indeed a pre condition but Are our citizen really well informed and Digital Literate? Are our young netizens really bothered about whatever is available through this medium? When preferred site for downloading songs is hosted from outside India and due to which huge quantum of revenue is lost by Film Industry, are these citizen be called as Informed? When most of the traffic on internet is related to Pornographic search, are these citizen be called well informed? When Cyber crimes are increasing at rapid pace and in geometric progression Are these citizen be called well informed? Does our informed citizens believe POWER CORRUPTS AND ABSOLUTE POWER ABSOLUTELY? Now as the 66A is repealed these informed citizens will have Absolute Power of expression which hopefully will be utilized with restrain.”

On Discussion, Advocacy and Incitement

“Is there any measuring device available which will tell with certainty that now Incitement level is reached? With the magnitude of users and reach internet can cover and also cultural, linguistic, religious diversities will it be really possible to identify whether the expressions are limited to discussions or advocacy or have they crossed to the level of incitement? And who will be proper Judge to decide?”
Para 14 is very unique one wherein SC has made its observations “A word needs to be said about use of American Judgments in context of 19(1). In virtually every judgment of SC reference has been made to judgments across the Atlantic. IS IT SAFE TO DO SO????

On Function of Citizeny Vs Government

So if government is not supposed to prevent and protect its citizen from falling into errors then what is meaning of Welfare State? The government has brought the section 66A with very genuine intention of protecting rights of its citizen in cyberspace and from falling them into various traps laid by this new medium of communication, which is in its very early days, but government machinery failed miserably in its implementation.

On What may be offensive

By applying the same logic SC has accepted that the terms are open-ended and undefined. In my view open ended terms can be very well defined by the authorities as per case to case basis. Judiciary wanted to reestablish its supremacy in interpretation of statues and does not want to delegate it to any other agency. Have we not observed in many cases from our judiciary where one court interprets in one way and other court reverses the interpretation? Can it not be said that when a thing can be offending to one person his right to retaliate is invaded now? The cases which were before SC were the one’s in which SC viewed from one angle and left other angle totally unseen due to its openness and vagueness but not considering True spirit behind the same.

On Ordinary People and Understanding law

So it would have been more appropriate had SC asked to narrow down the scope of open-ended ,under defined and vague words to finality so that people would have understood it more properly. Even in Para 49, SC maintained that wholesale substitution of provisions as suggested by ASG, is not possible for acceptance

So by examining the entire judgment I feel that only due to open-ended words or vagueness of words Hon SC thought the provisions of Section 66A as unconstitutional. Had it not been the CUT COPY PASTE tendency of our lawmakers and a little application of mind so as to at least define the terms in Section 2 of I T Act, rather than leaving then open and for broader interpretation, there was no flaw in Section 66A. SC has only decided on issue brought before it and still there is ample time for government to learn from mistakes of past. The government should define precisely all the words prior to their insertion in any statute and enact new Section 66A in much simplified form but at the earliest.

Cyberspace can not be left to be ruled by whims and fancies of the netizens and their self consciousness, as it has totally changed the rules of game. Governments may come and go but the possible destruction by such lawlessness in Cyberspace may have severe impact on humanity and probably we would not be alive to witness the same. The aftermath of lawlessness in Cyberspace would be very devastating and which we will be witnessing soon.

I thank Mr Limaye for sharing his views.

Naavi

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Bangalore techie arrested ..now under Section 67 instead of Section 66A

The Supreme Court in its judgement on striking down of Section 66A was hailed as a saviour of wrongful arrests under ITA 2008. Now it is reproted that a techie in Chennai has been arrested under Section 67.

Report in TOI

We are not in a position to comment whether the arrest was right or wrong. But we need to make a point that if there is a need to arrest a person under ITA 2008, one cannot rule out other sections being used than the one which was held to be violative of Article 19(1) of the Constitution.

In fact it is amusing to think that the subject judgement on Section 66A hailed other sections including Section 67 as having been drafted in a more precise manner while Section 66A was “Vague”. We would like to draw the attention of the public that section 67 is perhaps more vague than Section 66A.

For example under Section 67 what is punishable is “Publishing or Transmitting” in “Eletronic Form” any material which is “lascivious” or “appeals” to the “prurient” interest or if  its effect is such as to “tend to deprave and corrupt” persons who are “likely”, having regard to all “relevant circumstances”, to read, see or hear the matter contained or embodied in it,

The Nation wants to know if these words used in Section 67 are clear and precise as compared to the words used in Section 66A on which the Supreme Court came down viciously.

The words used in Section 67 have been repeatedly examined by the Courts under ITA 2000/8 as well as IPC where similar words have been used and over a period the Courts have read down some meaning to these words. If this can be accepted for Section 67, what makes Section 66A different?

I request all those journalists and activists who hailed the decision as “Land Mark” and “Saving of Democracy” etc convince me that the striking down of Section 66A was logical.

Naavi

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