Section 66A and Section 79 of ITA 2008 at Supreme Court

Hindustan Times has reported (Refer: Article  “SC warns govt over gagging social media” in Hindustan Times ) that the Supreme Court has demanded that the Government submits its views to the Court within one week and threatened that it may otherwise keep the section under suspension.

The main issue under consideration by Supreme Court is whether Section 66A is “Un-Constitutional” and interferes with the “Freedom of Speech”.  If SC is satisfied that the section does interfere with the freedom of speech since it criminalizes posting of comments on Face Book and Twitter as in the Palghar Case, it may come to the conclusion that Section 66A needs to be scrapped. Simultaneously the indication is that SC may also take a view on the responsibility of intermediaries under Section 79 in similar cases.

Naavi.org has expressed its views on this issue several times and would like to reiterate its views for immediate reference.

1. The current complaint before the SC is based on the action of Police in some of the cases such as the Palghar case. The most recent is a case filed on Mr N.Chandra Babu Naidu by TRS Chief Chandrashekar. In our opinion, all these cases have been filed by an error of judgement on the part of the Police and hence are not relevant to the issue whether Section 66A is unconstitutional or not. Postings in Face Book and Twitter should be considered as “Publishing” and is not within the provisions of Section 66A which should be restricted to “Messages” and “E Mails”. Restrictions on “Publishing” under ITA 2008 is restricted to what is “Obscene” and is covered under Section 67. All other defamation issues must be considered as outside the purview of ITA 2008 and should be considered as falling under IPC. A relevant “Explanation” under Section 66A would be a sufficient relief in the present case.

2.The reason why scrapping of Section 66A is not recommended is that this section addresses issues such as Cyber Bullying, Cyber Stalking, Phishing and Spamming. Hence there is a need to retain the section.

3.There is also a question on whether “Annoying” can be a sufficient ground to be equated with “Defamatory”.  Feeling “annoyed” is a personal reaction and is not the same as “being Defamed” in the presence of others. A person can get annoyed for nothing and cannot be a ground for removal of any content under Section 79.  An intermediary cannot also sit in judgement of whether there is a defamationary element in any content as this is the responsibility of the judiciary….unless the defamation is primafacie evident.  Intermediary can only put up a counter view and start a process of grievance redressal.

Let’s wait for further developments.

Naavi

Related Article by Pranesh Prakash

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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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