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Websites – Arrested without Bail

Published on Thu, Aug 29,2013 | 22:48, Updated at Thu, Aug 29 at 23:02Source : Moneycontrol.com 

A Bombay High Court decision gives Section 66A a much wider scope than was previously thought which could result in much misuse as has been seen with the harassment of young people posting their opinions on Facebook. Though the High Court did point out that interpreting Section 66A to include websites within its purview would not necessarily make content of every website punishable, the question of whether an offence had been committed within the meaning of Section 66A, still depends on the facts and circumstances of each case and this could be used to harass public spirited citizens and ordinary citizens airing their views on blogs and other websites.

Facts

In the case of Manoj Oswal v State of Maharashtra1, Manoj Oswal (Petitioner) filed a writ in the High Court of Bombay to quash a First Information Report (FIR) lodged by Dhananjay Diwakar (Complainant), an employee of M/s Sakal Papers Private Limited (Respondent). The Petitioner is alleged to have distributed pamphlets that contained defamatory remarks about Mr Prataprao Govindrao Pawar, Chairman of the Respondent and links to two websites that made further defamatory statements about the Respondent, thereby committing offences punishable under Sections 499 (Defamation) and 500 (Punishment for Defamation) of the Indian Penal Code, 1860 (IPC) and Section 66A (Punishment for sending offensive messages through a communication device) of the IT Act. The Complainant received one of these pamphlets and hence lodged an FIR with the police.

Key Issues

 

  1. The FIR registered with the Cyber Crime Cell, Crime Branch, Pune was vague as it did not mention the offences committed.
  2. Do websites containing defamatory text fall within the ambit of Section 66A of the IT Act.
  3. The term 'sends' under Section 66A could be interpreted to mean the same as 'publishes or transmits' for the purposes of this section.
  4. The Petitioner's freedom of free speech and expression under Article 19 of the Constitution is violated if Section 66A is applied to the present facts.

Contentions of the Petitioner

 

  1. The allegations in the FIR were too vague and obscure and did not refer to or allege the essential ingredients of the offences mentioned in the FIR.
  2. There is no statement in the website or the pamphlet that could be attributed exclusively to be defamatory, causing nuisance or fulfilling any other ingredient under Section 66A. Since Section 66A does not refer to 'publication', information or views expressed on a website would not constitute an offence under Section 66A.
  3. The term 'send' should have a narrower ambit than 'publication' because it has been differentiated in other provisions of the IT Act. Therefore the offence under Section 66A would only occur in situations where information has been sent, not merely published.
  4. If Section 66A were read to be wider than "send" to include publication and transmitting information, it would mean that any statement or information that causes annoyance or inconvenience to anyone could be punishable. This would result in violation of freedom of speech and expression under Article 19.

 

Decision

The High Court of Bombay:

  1. did not discuss the factual contentions of the Petitioner on whether the FIR spelt out every offence clearly and if the offences could be attributed exclusively to the Petitioner. However it did hold that the FIR discloses prima facie commission of a cognizable offence;
  2. noted that Section 66A sets out punishment for anyone who sends out any information that is grossly offensive or has menacing character or any false information that causes annoyance, inconvenience, danger, obstruction, insult or injury. The Court considered the definitions of "communication service", "computer", "computer network", "computer resource", "computer system", "data" and "information" and concluded that, when read with the definitions of these terms, Section 66A charges both the act of sending and the device and/or method used to send the information. The Court held that websites would amount to a computer resource and the information on a website would fall within the purview of Section 66A since the legislature intended to include matter or information available on websites within the meaning and scope of this section;
  3. discussed the meaning of 'sends' as used in Section 66A and held that 'send' would not only be confined to mean "to cause to go to a particular destination", but would also include "to make available or ensure access to information using any mode." The Court made specific reference to the explanation to clause (c) of Section 66A to define electronic 'mail' and 'electronic mail message.' It rejected the contention that creation of a website which facilitates access to others would not mean sending. It held that 'sending' for the purposes of the IT Act would include storage of information that can be accessed, transmitted or published; and
  4. gave a threefold reasoning to justify how the Petitioner’s freedom of speech and expression under Article 19 was not being violated. In the Court's opinion, Section 66A provides reasonable qualifications: (a) any information that is grossly offensive or menacing or can cause inconvenience and annoyance would become an offence only if the information sent is false; (b) the IT Act only helps in addressing misuse or abuse of technology and the right to freedom of speech and expression cannot take precedence over any person’s right to reputation; and (c) Article 19(2) allows reasonable restrictions to freedom of speech and expression.

 

Impact of the decision

This decision gives Section 66A a much wider scope than was previously thought which could result in much misuse as has been seen with the harassment of young people posting their opinions on Facebook. Though the High Court did point out that interpreting Section 66A to include websites within its purview would not necessarily make content of every website punishable, the question of whether an offence had been committed within the meaning of Section 66A, still depends on the facts and circumstances of each case and this could be used to harass public spirited citizens and ordinary citizens airing their views on blogs and other websites.

The offence under clause (a) of Section 66A is committed only if any information sent, whether or not true, is grossly offensive or menacing in nature but it does not provide any qualification with respect to how this is to be determined. By interpreting the term 'send' to mean the same as 'publish or transmit' the Court has widened the scope of Section 66A. This interpretation of Section 66A makes redundant Sections 499 and 500 of IPC which punishes any false imputation that is published and harms a person's reputation, provides the defence of justification by truth and cannot be used to harass the innocent since it is non - cognizable and bailable.

The offence being cognizable implies that owners of blogs or websites like Twitter, Facebook and other similar sites that allow their members to post information without censoring content of the posts will be risking arrest without bail. This raises the issue of attribution as the IT Act does not clearly specify whether only the person posting such information or the owner of the website would be liable.

The judgment confirms the fear of many that the IT Act unfairly limits the right to freedom of speech and expression and any opinion published on a website or blog if found annoying, offensive or menacing could result in arrest without bail. We understand that public interest litigation has already been filed in the High Court of Bombay and Supreme Court challenging the constitutionality of Section 66A. With recent instances of misuse of police powers, we should be concerned about how much damage Section 66 A could do.

 
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