The Supreme Court has just scrapped Section 66-A, a draconian law that allowed arrests for offensive content online. Free speech campaigners across the country repeatedly abused the law and so the verdict comes as a relief to online users, who will no longer be required to take down content after complaints from any party. At the same time, it has brought cheers to global businesses that operate online and most importantly social media sites such as Twitter, Facebook and LinkedIn as they see the ruling is about encouraging more investment in the Internet sector in India.
What’s so ugly about it?
Incorporated in 2009 into India’s IT Act of 2000, section 66A allowed anyone to be arrested for posting any ‘offensive’ message on social media or sending it via email, and jailed for up to 3 years. . It criminalized ‘offense’ and ‘annoyance’, leaving it to police officials and others to interpret what those meant.
Last month, a 12th class student was arrested and jailed in Uttar Pradesh for two days for a Facebook post about minister Azam Khan. Back in 2012, two girls were arrested in Mumbai for liking a Facebook post criticizing the shut-down of Bombay after Bal Thackeray’s death. In the same year a Puducherry businessman was arrested for tweeting that Congress politician Karti Chidambaram had amassed much wealth. A professor in Kolkata’s Jadavpur University was arrested for forwarding a cartoon on chief minister Mamata Banerjee.
Section 66A was challenged in 2012 by a young law student, Shreya Singhal, then 21. She filed a public-interest litigation in the Supreme Court, shortly after the arrest of the two girls in Mumbai for their Facebook post. Nearly a dozen other petitions followed.
Petitioner Shreya Singhal’s case was argued by India’s former attorney general Soli Sorabjee. Others also filed petitions about 66A and related laws in the same act: these petitions were grouped together and included by the supreme court in its final order of March 24, striking down 66A. Petitioners included the consumer review portals, NGO Common Cause represented by lawyer Prashant Bhushan, NGO People’s Union for Civil Liberties represented by Karuna Nundy, Apar Gupta, and others.
A step up for online freedom?
According to Nasscom, the landmark ruling upholds the fundamental right to freedom of speech and expression given under the Constitution of India. Expressing his views on the development, Mr. R. Chandrashekhar, President, NASSCOM, said, “Internet as a medium is meant to be free and transcend territorial borders with minimal regulation and monitoring. The IT Act has well served the objective to provide the legal framework for data security andinternet laws in the country.”
He believes that the changes enabled by the Supreme Court judgement would provide much needed boost to the citizens of the country and help the objective of a digitally connected India. Chandrashekhar said that Nasscom will continue to work with the government to formulate rules and provisions for effective governance.
Won’t there be ‘Misuse’ of freedom
As posting “offensive” comments online is no longer a punishable crime, there are voices of concerns that the biggest threats may come from social media sites such as Facebook and Twitter, if no measures of control are imposed. However, legal expert Amit Mukherjee states “While contentious social media posts will not attract Section 66A any further, penal provisions relating to defamation, obscenity, mischief, public disorder, etc remain.”
Mukherjee states that the government can still issue orders to block access to websites under 69A rules, which creates a mechanism for blocking.
In fact, there are provisions in other laws for moderating hate speech. For instance, section 295A of the Indian Penal Code provides for a similar jail term for “acts intended to outrage religious feelings”. However, such provisions are less vague and arbitrary, and thus less prone to misuse, than 66A was. Also, 69A remains, which allows the blocking of specific web sites or pages with a government or court order.
In other words, persons aggrieved by social content can approach a nodal officer in the Information Technology Department. The department’s review committee will then examine the posting, call the person who has posted it if he is identifiable, and then take a call on blocking it. Only a designated officer can pass such orders. This, according to him, will reduce liability on intermediaries and will result in a transparent independent ecosystem.
A greater onus now lies with the government to re-examine the issue and strike an appropriate balance by upholding freedom of expression and also deter unbridled defamation in cyberspace, believe experts and also depends on how the social media companies dealing with the same.
Consequently, Communications and IT Minister Ravi Shankar Prasad who believes that India is a democratic country and free flow of ideas should be respected, however, said it is important to have self-regulation and that social media platforms should also practice some self-restraint.
The same rule however will not be applied when dealing with terror groups like ISIS and others as Costolo states that accounts of terror groups like ISIS are against law and serviceterms.
What about cyber bullies?
Post 66A, arbitrary arrests for ‘offensive statements’ should reduce, and online free speech will be easier. However, experts believe that Section 66A also contained legal recourse against a number of other cyber crimes such as stalking, bullying, threatening through SMS and email, phishing and spamming, among others and the Supreme Court seems to have overlooked this aspect. Some experts have reportedly argued that with newer kinds of cyber crimes emerging on a daily basis, the ruling.
The Indian Penal Code’s Section 499 and 500 only takes care of it in the physical world. But Mukherjee states, under Section 4 of the IT Act brings electronic information at par with physical documents, and hence the same provision can be applied.
While freedom of expression has been hailed and celebrated among online users, to help combat instances of cyber stalking, bullying and other natures of cyber crime, the government, along with IT bodies are reportedly working together to bring out guidelines to address some of these areas.