Naavi.org

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

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

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

The summary of the judgement of the Supreme Court bench consisting of Justice J.Chelameswar and Justice R.F. Nariman dated March 24, 2015 is as follows:

(a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
(b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
(c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.
Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
(d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).

Detailed discussions on the judgement are available on other articles on the site (Naavi.org) around this date.

Naavi

March 26, 2015

The former Law Minister and Karnataka Governor Mr H R Bharadwaj has confirmed what everybody knew that Section 66A was misused wantonly by UPA.

However, the Supreme Court which gave its judgement scrapping the section did not even give a hint that the arrests of the petitioners who had brought the case on constitutionality of the section was caused not by the content of the section but by the mis-interpretation of the content.

In the end the judgement appeared an indictment of the current BJP led Government since they had submitted the latest affidavit trying to save the section. The media which is only interested in stoking up the controversies also was happy that the current Government which they dislike for other reasons was shown in bad light.

The truth however is that Section 66A was drafted to cover offences committed with the use of E Mails and SMS messages which was not clearly covered under ITA 2000. The standing committee which cleared ITA Amendment Bill 2008 had no idea that the section would be misused by politicians and heap blame on the drafting team. In fact the persons who drafted the section had actually lifted the clause from the UK statute where it has even been tested in the Courts.

The famous Paul Chambers case in which UK Police had launched action on a person who had expressed his frustration on the closure of the airport because of weather with the words ” “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!”, examined in detail the interpretation of the words such as “Offensive” vs “Grossly offensive” etc.

Refer Paul Chamber Judgement details here

 It also concluded that words such as “Menacing” should be seen in the relative context of the impact it causes on the audience. The final verdict on this case was delivered after two appeals and finally the Court quashed the conviction and brought not only justice but also clarity to law. Similar provisions which require the law to be interpreted based on the facts and circumstances of the case and not merely on the literal meaning of the words are there in both ITA 2000/8 under Section 67 and also Section 292 of IPC. If Indian law is capable of interpreting such vagueness as available under other sections, it is strange that the Court came to a conclusion that only Section 66A is not to be allowed to exist because it is “Vague”.

The honourable Judiciary in India must note that definitely the content of law on the basis of which the Paul Chamber case was decided was in fact as vague as what our Courts were confronted with in the Shreya Singhal petition but the interpretation given by a competent court after due consideration of all circumstances including the words used in the statute and the practice of the community brought clarity to law.

Though the facts of this case appear to have been brought to the notice of the Court, the Court decided to reject the argument and proceed with its decision to scrap the section.

The Paul Chamber  is the real land mark judgement which all of us had to refer to in the case of the Section 66A. Even the Judges should have given due credit to the findings of this case.

The current judgement which has been hailed by many as a “Land Mark Judgement protecting the democratic principles” is actually a judgement that reflects a lack of desire by the judiciary to discharge its responsibility to read down a new law. Yes it would be considered as a precedent for some time. Hopefully there will be other occasions when this case law would be over turned.

Naavi

Also Refer: The following article tries to capture how law is evolving in UK because of a series of Court decisions. : Refer: Twitter Users: A Guide to the Law”

Also See: Experts stress need to relook….