S Ve Shekar and Forwarding of Social media Messages: Shreya Singhal Judgement over looked

I refer to the recent judgement from High Court of Madras which was quoted in the media with headlines such as “Forwarding social media posts equals endorsement, says Madras HC “.

The judgement was in relation to an “Anticipatory Bail Application” by the well known Tamil Artist S.Ve. Shekar, on whom one Mithar Maideen A, State General Secretary, TN Journalist Protection and Welfare Association, Chennai registered a complaint. The FIR was registered on 21st April 2018 at CCB-1, Chennai under Sections 504, 505(1)c) and 509 of IPC and Section 4 of The prohibition of Harassment of woman Act 2002. The FIR was only against S.V.Shekar and there were no other respondents. However, in the judgement, the Court considered several other petitions (Nine petitions) all of which made S V Shekar the accused as the main person who has committed the offences under IPC and sought him to be jailed for upto 6 years.

To any unbiased observer, it was prima facie evident that the Complaints were motivated by the fact that Mr S V Shekar was a BJP leader. Mention of the old Shankar Raman murder case which is considered as one of the false cases instituted by some religious, opponents of the Hindu faith in the complaint was a definite give away for any body looking at the genuineness of the complaint.

The fact that the petitions were only against Mr S V Shekar and not against the others also indicated that the motive of the complainants was prompted by political considerations.

Despite these indications that the complainants had not come to the Court with clean hands, the Court did not dismiss the petitions forthwith and went ahead to pronounce a judgement against Mr S V Shekar. In the process the Court vindicated the complaints and provided it legitimacy.

The decision is now under appeal with the Supreme Court and we need to wait for further developments.

The political and religious issues involved in the case are a subject matter of debate in a different forum in which the Court’s failure to recognize possible ulterior motives of the petitioners is a matter that cannot be ignored.

However, it is necessary to point out that in the judgement, the Court made some comments which has attracted attention of the Social Media observers. As one can observe from the various media reports, the net effect of the judgement has been to create a fear amongst the Social Media users that “Forwarding of Messages would be considered as an endorsement”. This will also affect the WhatsApp users besides Twitter and other FaceBook users.

In a bid to harass a person solely for his political affiliation petitioners had sought to justify their case with an incorrect interpretation of the status of Social Media postings. These should have been rejected by the Court if it had made an independent assessment of the contentions made by the petitioners.

On the other hand, it is unfortunate that the Madras High Court has played along with petitioners and passed an order which incidentally is directly confronting the Supreme Court judgement in the Shreya Singhal Case (Scrapping of Section 66A of ITA 2008).

We have earlier discussed the Shreya Singhal Case in detail in these columns. We had indicated that the Shreya Singhal Judgement was prompted by the right reasons but was technically incorrect for the fact that it considered “Posting of Messages in Face Book and Liking a Message on the Facebook” as equivalent to “Sending messages through a communication device”.

At that time we had pointed out that the Police had made a mistake of booking the Palghar case under Section 66A and where as there was no cause of action under any sections of ITA 2008, instead of dismissing the case forthwith, different Courts presumed that the filing of the case under Section 66A was correct but the problem was with the Section 66A.

The Supreme Court in its judgement stated that Section 66A had created a “Chilling Effect” on the freedom of expression and had no place in the statute. It was so angry that it did not even read down the section but went ahead and scrapped it.

Now this judgement of  Judge (Mrs) Ramathilagam essentially denying anticipatory bail as requested has indirectly concurred with the views of the petitioner that “Forwarding of a Message is equivalent to Endorsement”.

The Judgement does not independently analyze the reasons to agree with such a contention nor clarified that it does not agree with such a contention and allowed the judgement to be interpreted wrongly. The judgement has simply reiterated the arguments of the petitioners and proceeded to give its judgement leading to a conclusion that the judgement endorses the arguments made in toto.

The instant case is one of “Alleged Defamation of the Women Journalistic Community” through the use of electronic documents. The cause of action under different sections of IPC are fine but they have to be backed by admissible evidence and proving of the mens-rea. Under ITA 2000/8 sections 67, 67A and 67B speak of offences involved in  publishing and transmission of electronic documents. In the absence of Section 66A, sending messages through communication devices is out of ITA 2008 list of offences.

If we go with the Shreya Singhal Judgement which is the current precedent, posting on Facebook, Twitter, Liking, (Retweeting) etc form part of the constitutional right to freedom of expression and cannot be objected on flimsy grounds.

Only in instance of “Child Pornography” under Section 67B, offences can be made out on issues such as forwarding.

The subject complaint is therefore completely out of ITA 2008 and completely against the spirit of the Supreme Court judgement on Section 66A.

If the complaint is sought to be sustained on the basis of IPC, then one has to ask the question if there was any Section 65B certified copy of the electronic document as admissible evidence?. If not, why did the Court proceed arbitrarily without admissible evidence?

If the Court wants to exercise its own discretion in the matter of evidence, questions should be asked about whether the Court considered the antecedents of the Complainants.

It would have  been appropriate if the case had been heard by a larger bench taking into account the implications of allowing arguments such as “Forwarding is equivalent to Endorsement” remaining unchallenged.

It would have been prudent for the Judge to have pointed out that she might have come to the conclusion of rejecting the anticipatory bail application for reasons other than the reason that “Forwarding of an Electronic Document in Facebook is equivalent to Endorsement”.

This statement made by the petitioners is short sighted and mischievous and should have been categorically rejected.

Whatever be the political and ideological affiliation of the petitioners, the Court should have avoided passing an erroneous judgement against the Supreme Court’s prevailing order.

If in the process S V Shekar would have got the anticipatory bail which the Court did not like, it could have satisfied it’s urge to express its emotional feelings about the effect of the Facebook post/endorsement by passing strictures on him and warned him in severe terms.

I remember that in one of the past judgements, the Judge stated to the effect… “I know that the accused is guilty but the evidence unfortunately is not sufficient to declare him guilty. I therefore acquit him”. The Judge in this case was clear of his conviction but stuck to the established system of Criminal Jurisprudence.

A similar approach could have been adopted by the Court in this case of S V Shekar’s petition and chastised Mr Shekar in strong terms without endorsing arguments such as “Forwarding is equivalent to endorsement”.

I wish Supreme Court corrects this erroneous judgement.

If Supreme Court is committed to its judgement on Section 66A and Freedom of Expression, it should call this judgement as having  “Double Chilling Effect on the Society” and scrap it forthwith. …Unless it is also swayed by the political and religious undertones in the case.

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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3 Responses to S Ve Shekar and Forwarding of Social media Messages: Shreya Singhal Judgement over looked

  1. One of the readers has communicated to me some comments which are reproduced here for the information of others also along with my response.

    1. This is not a judgement. It is just a decision on anticipatory bail petition. Rulings cannot be compared with final judgements.

    Response: Agreed. I am more concerned with the public perception created by such orders which the media report as judicial verdicts.
    In this order, the Judge in the final order may not even have concurred with the view that “Forwarding a Facebook post is equivalent to endorsing the content”. But this is the inference drawn by the media and would prevail in the society.
    But repeating what one of the counsel has argued in the body of the order without countering it and then giving an order in favour of that counsel leaves an impression that the Court agrees with the views or atleast want it to be read in that manner. We are aware that in the adversarial system of jurisprudence, one of the counsel is most probably wrong always and the other is right since truth is only one. Hence repeating the argument of one of the counsel alone and arriving at an order (or judgement) is not an acceptable writing of judicial orders.
    It would most certainly be quoted by other lawyers in other courts creating a false impression. Perhaps the Judges need to therefore be more responsible in drafting their orders which have to be clear and unambiguous. (I had similar objection with the Shafhi Mohammad Order regarding Section 65B also)

    2. The catch word in the ruling is ‘presumed knowledge’ and ‘influential status in the society’. There is a difference between a common man and a CM making a statement ‘our government is corrupt’. It’s not a simple forward message, the accused is aware.

    Response: This could be a valid presumption. But the Shreya Singhal judgement precisely addresses the need to avoid creating a “Chilling Effect” of interpreting musings on the social media (in that case it was likes on facebook by the Palghar girl Twitter posting in Karti Chidambaram case, Cartoon by Aseem Trivedi etc), as if they are signed affidavits and initiating legal proceedings.
    We must understand the psychological frame of mind of a person clicking a re-tweet or like button or forward button from typing down a message himself . And even such typing down of a message on a social media needs to be distinguished from taking a letter head and pen and writing down the views on paper, signing it, posting it by post for a cost of Rs 5 or by speed post costing Rs 30.
    A talk amongst friends on a coffee table or a family discussion cannot be considered as equivalent to a speech made in a public platform.
    Hence connecting the “Intention” with “Action” needs to be more robust and the Court is wrong in equating the forward with a “Responsible Expressed Opinion”.
    The complainants can take such views because they have political reasons. But the Court has to show better maturity than a common man and be circumspect. It is in this context that I said that the Court could have vented out its anger in chastising the respondent taken cognizance of the fact that he had expressed regret and removed the comment to have allowed the anticipatory bail…. even if the comment might have hit a raw nerve of the Court.
    We know that Bail is the rule and jail is an exception. Since in this case, there was no further “Investigation” that could have helped in a custodial enquiry, Jail was an excessive demand and the Court ought to have also pointed out that Bail is the normal response. By taking an extraordinary decision to refuse the Bail, Court displayed a sense of outrage disproportionate to the incident.

    3. Defamation. The forward should be seen in the light of recent happenings. The accused criticized a woman journalist for expressing her views on Governor’s action. Subsequently the accused posts such a message raises suspicion.

    Response: The remedy for defamation lies with the person who has been defamed bringing action for damage under the relevant sections. In this case 9 other petitions were rushed by people other than the victim. They targeted only the respondent for forwarding the message and not the person who might have made the comment itself. It had false insinuations that the account might be fake. (The insinuation has been disproved in the demonstrations that have occurred in US).
    Clearly, the petitioners moves indicated other motives. Media highlighted that he was a BJP leader. Petition made a reference to Shankar Raman case. These indicate that the complainants were more interested in making political capital than making a defamatory point.
    Have these people taken similar action when MP Renuka Choudhary responding to some Bollywood actress’s comment agreed that sexual exploitation does occur in many other fields also?.
    Fighting against the social evil is some thing and converting it to a political issue is another. Courts should be above this.

    4. The bail was rejected so that the police can fairly investigate the case.

    Response: I donot understand if any fruitful Cyber Investigation is possible in custody other than extracting admissions under duress.

  2. Pingback: How To Respond to Rogue elements on the Social Media? - Naavi.org

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