Mumbai High Court on Section 66A

The Mumbai High Court has in a judgement opined that Section 66A can be applied even in the case of Websites.

According to this report in TOI, the High Court held

“Creating a website that may contain false or offensive information and facilitating its access to others would fall under the definition of ‘sending messages’ under section 66A of the IT Act ‘Inconvenience’ cannot be read in isolation and must be read as a whole under the definition of an offence under the section It is only false information that causes inconvenience”

The view however is open for debate and questioning since it does create certain conflicts.

Firstly, ITA 2000 addressed the issue of “Publishing” and “Transmitting” through Section 67. This section was restricted to obscenity issues and did not extend to “Defamation” or “Causing annoyance in general”.

At this time, “Defamation” was being addressed with IPC and even when “Defamation” occurred with electronic documents, they could still be covered under IPC.

However when offences such as “Cyber Stalking” and “Cyber bullying” started occuring, it was noticed that “Sending repeated messages/emails” was creating  a new situation which was not similar to “Static form of annoyance that could be alleged for a website publication”. A website could be ignored but a direct message could not since it intruded into the personal space of the addressee. Hence it had more capability to create annoyance of the addressee. At the same time “Website” was open to public view while email or SMS was not. Hence the “Publishing” activity on the website and the “Messaging” had to be considered as two different kinds of activities. The “Message” could not be considered as “Publishing” not “Distribution”.

The IPC laws of defamation was insufficient to tackle situations where the content of the message itself was not defamatory or threatening etc but the act of messaging was still causing annoyance. An example would be a message which states  “I hope all is well” sent to a girl at say midnight repeatedly when she is perhaps with her husband and sent in the name of a boy. This is sufficient to create annoyance of the level that could lead to disasters. Sec 66A was meant to address such situations.

The website activity can however be considered as “Publishing” and if any content is false and defamatory and also obscene, it can be taken up under the present Section 67/67A/67B. If it is not obscene but is defamatory, it can be considered under IPC.

Twitter and Facebook are also “Publishing” and not “Messages” though the term “message” is often used in such context. The main difference between a “message” and “what is not a message” is that “message” is pushed by the sender to the addressee. A published content reaches the destination only when he decides to pu;; it from cyber space to his attention.

It appears that the Mumbai High Court has failed to appreciate this vital distinction .

It is surprising that repeated mis-interpretations are occurring in Maharashtra about the implications of Section 66A. This judgement appears to support the contention of the Maharashtra police in the instances such as at Palghar when they invoked Section 66A on Facebook postings.

It would be necessary for this judgement to be reviewed and mis interpretation corrected.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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