Let's Build a Responsible Cyber Society



 Section 66A in Karti Vs Ravi incident

(Continued from Part I)

Further to the discussions in the earlier part, I add some additional thoughts.

Mr Ravichandran of CySi has brought to my attention the English case of Paul Chambers. This case discusses the provisions of the Section 127 of the Communications Act 2003 the words of which are echoed in Section 66A of ITA 2008.

In particular,  the lower Court in this case found a person guilty for having posted a "Grossly offensive" and "Menacing" message on Twitter. In the post he had used the words "I'm blowing the airport". The message was held "Menacing per-se".

However the appeal Court in its judgment  delivered in July 2012 reversed the decision and allowed the appeal of Mr Paul Chambers. It held that the message was not "menacing", it was a joke and not meant to be taken seriously.

During the discussions there was a brief discussion on the nature of "Content" Vs "Message" as well as "Public Communication Device" and a "Private Communication Device".

The appeal Court did not go into the detailed discussion of these factors since it was not relevant once it came to the conclusion that the message or content was not "menacing".

However the Courts observed that there are two types of information namely "Content" and "Message". In this case it was relevant to distinguish this because the act was specific to the messages sent through a "Public communication device".

Further though the Courts agreed that Twitter is a "Private Entity", it said that the service rode on a "Public Communication Network" and therefore came within the definition of "Public Communication Device".

I disagree with this part of the judgment. Though the Internet in general is funded from public funds to some or great extent, the service of Twitter is still a private service. Occurrences within the Twitter are to be considered as within a "Privately owned facility" and not a publicly owned facility.

For example we can take the case of an offense that takes place in a company which has rented its place from a public authority.

Should we say that this is a "Public Infrastructure"?

If a communication device within this building is used for an offense will it be considered as an offense committed with a "Public Communication Device"?. 

Unless the person used an internet service which was not paid by him but was paid by the Government such as say a free kiosk in a Railway station or in a Government office, the communication device should be considered as privately owned, privately financed and privately paid for though at some part of the network or a router end there might have been a publicly owned gateway.

If we accept that "Twitter" is a "Public Service", by anology, e-Bay should be considered as a "Government owned Stores". All copyright and patents on web assets become properties of the Governments. I am sure that this cannot be accepted as the intention of any legislation unless we are nationalizing the entire Internet assets of a country.

As regards the "Content" Vs "Message", I continue to hold the view that the two are different. Indian law recognizes them as different. Section 66 addresses content and Section 66A addresses "Message". Content is published. "Message" is sent from one person to another. There is a source and destination both of which represent individual legal entities in the case of a message. It is a C2C transaction. Content is "Posted" from an individual to a service provider. It is a C2B communication.

The only way the definition of "Content" and "Message" can be merged is to consider the protocol under which the Internet is based on. Transaction on the internet uses the TCP/IP and http protocols where data packets are sent and received from one device to another. If this technical aspect of Internet is considered then everything on the internet is a "message". The "Content" is constructed by combining a series of messages in the form of data packets. However  this technical view cannot be accepted as the "Legal Intention" at this point of time. If so there was no need to recognize "Content" and "Message" differently".

I therefore continue to hold the opinion that the legislative intention behind the introduction of Section 66A was to bring E mails and SMS/MMS messages within the ambit of control which Section 66 failed to do under ITA 2000.

While the Section adequately addresses "Threat" messages including "terrorist threats", "Extortion threats" etc under Section 66A (a), it adequately addresses "spoofed", "impersonated" communications under Section 66A(c), it tries to address "Cyber Stalking" and "Cyber Bullying" under Section 66A(b).

It is not the legislative intent of Section 66A(b) to modify or add to or otherwise alter the provisions of "Defamation" as prevalent in the IPC. Any such offense could be dealt with by IPC along with Section 4 of ITA 2000/8 which declared the equivalence of an electronic document with a written document.

In the event "Defamation law" is read into Section 66A(b), we are introducing a needless and unintended conflict with IPC.

Section 66A(b) clearly indicates that it wants to address deliberate mischievous acts where a person knowing that some information is false still bombards the recipient repeatedly with it and causes "Annoyance" etc. There could not have been a better description of  "Cyber Bullying".

We know that a communication sent directly to a person cannot constitute "Defamation". An utterance which is loud and made in public alone constitutes "Defamation". An e-mail or an SMS/MMS is always sent by one and meant for another and even if it is abusive it cannot be defamatory. When a message is sent to multiple recipients, if the recipients constitute a closed group, then also it is difficult to imply "Defamation". Only when the message is sent to a large number of unconnected persons it can be equated to "shouting in the public" and constitute a defamation (subject to it not being true etc).

A "Twitter" is a publication and not an one to one message. Even the followers get the message because they have become members of the close community. Distribution of tweets to them is a service they have subscribed to.  Those who view the message through browsing and search engine entry are "pulling" the information on their own volition. Hence it is not a "message sent".

In view of the above, Twitter related offenses need to be treated as content related offenses and Section 66A is not to be applied to them.

The view of the Australian department of prosecution also supports this view.

[P.S: The above is the opinion of Naavi as a Techno legal consultant and not to be treated as a legal opinion. Also I declare that this as well as Part I of the article has been written for academic debate and I declare that I am not a member of any political party and no special motivation can be attributed to the references made in the articles]


November 3, 2012

Related Article:

Pat I of this article

Twitter joke trial: Do “offensive” tweeters have freedom of expression rights?

Judgement Paul Chambers

House of Lords opionion

July 2012: Report in Guardian

27th Hune 2012: High Court Judgment

Australian view

[Comments welcome]