Monday, October 24, 2011

Section 66A of the Information Technology Act: “Sending” Messages


I was reading Section 66A of the Information Technology Act a few days ago because it appears there is some confusion surrounding its interpretation. The provision reads as follows:

66A.Punishment for sending offensive messages through communication service, etc.: Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
'Explanation.- For the purpose of this Section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
The issue is whether the provision applies to publication of defamatory or prohibited content on websites. I am inclined to say no for the following reasons:
1. I do not think publishing information on a website/portal falls within the definition of "sending". According to me, the provision's use of the word "send" along with "communications device" leaves very little room to include "publication".

2. It must be borne that although publication results in communication, there is no attempt on the part of the legislature to include publication within the meaning of "sending". 

3. Legislations are expected and presumed to be consistent in their use of terms. When the Act uses "publication" in one sense in select provisions (Section 67), but does not use "publication" in Section 66A, it means it does not intend to include mere publication by posting. In other words, although "sending" may result in publication, all publication cannot be equated to sending.

4. "Send" envisages a specific recipient(s). Also the provision refers to transmission and addressee/recipient of the message. This means the nature of the transmission is communicatory.

5. Also, it would be a stretch to argue that "communication/send" includes communication between the person who publishes the information and the system on which the information is published. That would amount to hair-splitting.

6. Further, even when the provision refers to use of computer resource, the legislature still makes no room for "publication" using the computer resource on a website. 

7. The limited circumstance when publication on website would amount to "send" is when information published on the portal is "sent" and "received" by subscribers of the site/blog/social networking site. Simply put, we'll have to distinguish between publication simpliciter on a website/an update on Twitter or Facebook and a message which is communicated.

8. Not just that, there's a reason why the IT Act or Section 66A does not provide for defamation by publication on a site. Section 499 of the IPC is broad enough to apply to defamation using any medium, therefore one does not need any provision under the IT Act for it. This applies to obscenity and the like offences as well.

9. Consequently, since the IPC already provides an offence for the end product of the communication i.e. defamation, my take is that Section 66A forbids use of the medium recognized under the IT Act as a medium for defamation. Specifically, it forbids use of the medium as a "conduit" for sending offensive messages. We must distinguish between a "conduit" and a "place/cyberspace". Section 66A alludes to the use of information technology as a channel of communication, as opposed to a space for publication.

10. The equivalent provision in the “real world” is Section 20 of the Indian Post Office Act, 1898, which reads as follows:

20. Transmission by post of anything indecent, etc., prohibited.—No person shall send by post--
(a) any indecent or obscene printing, painting, photograph, lithograph, engraving, book or card, or any other indecent or obscene article, or
(b) any postal article having thereon, or on the cover thereof, any words, marks or designs of an indecent, obscene, seditious, scurrilous, threatening or grossly offensive character.

The emphasis in the Post Office Act is on "transmission by post" of anything forbidden. Therefore, it follows that even Section 66A, which is the “e-equivalent” of Section 20 of the Post Office Act, also frowns upon use of the medium as a "communication medium", and not as a means of "simple publication".

Comments and opinions are welcome! 

17 comments:

  1. I agree with the opinion in this post.
    A well written article. Keep it up.
    Naavi of Naavi.org

    ReplyDelete
  2. Thanks Mr.Vijayashankar

    Warm regards,
    Sai.

    ReplyDelete
  3. Extremely well written and tries to address a very important issue. Hope the Courts take notice.

    Kind Regards,

    ReplyDelete
  4. Thanks a bunch for your kind words Anon!

    Sai.

    ReplyDelete
  5. Very interesting article however section 66A has now been used to arrest someone based on an "offensive tweet". a tweet is more akin to publication than sending a message. What were the law makers trying to protect with this law? Were they trying to protect victims of harassment ?
    Law looks like a very bad idea done at the expense of freedom of speech.
    -- Mandar

    "Ravi was arrested for tweeting offensive messages against karti chudambaram on 31 oct 2012



    ReplyDelete
    Replies
    1. Dear Mandar aka Anon@ 111:04 AM.
      Thanks for the comment. I assume you refer to the article below:
      http://www.ndtv.com/article/south/man-arrested-for-tweet-on-chidambaram-s-son-286405?pfrom=home-topstories

      I am not sure if Section 66A may be applied to tweets or updates on other social networking sites. I really dont expect CID officials to be aware of the true scope of the provision. The incident appears to be an example of abuse of a provision as opposed to a mischief in the provision itself. It is possible to justify the provision as a constitutionally-permissible reasonable restriction, however its application in the case reported in the article may not be correct.

      Best Regards,
      Sai.

      Delete
  6. I agree with the previous comment. I landed here expecting that this act is yet another gimmick to suppress freedom of speech in India.

    ReplyDelete
    Replies
    1. Dear Anon,
      I have just put up another post on applicability or otherwise of Section 66A to tweets.

      Bests,
      Sai.

      Delete
  7. Any time limit for filing a complaint under this section?

    ReplyDelete
    Replies
    1. Dear Anon,
      Unless an until there is a specific provision either under the Limitation Act or the statute which contains a penal provision, the general principle applied to offenses is that a crime never dies. In other words, a criminal complaint is usually not barred by limitation. Please read the judgment available in this link- http://www.indiankanoon.org/doc/1432851/

      To the best of my knowledge, a complaint under Section 66A does not have a limitation period.

      Best Regards,
      Sai.

      Delete
  8. You mention that "Section 499 of the IPC is broad enough to apply to defamation". Still we find that Section 66A is applied instead of Section 499 in many cases. For example a Section 66A case reported at http://www.mumbaimirror.com/printarticle.aspx?sectid=15&contentid=201004152
    01004150444035498c0a203 the alleged defamatory references having been made along side inter alia newspaper reports of a civil protest, http://www.dnaindia.com/world/report_indian-expats-fight-fee-hike-through-blogs_1166668 for which Section 499 would have been adequate (and broad enough) remedy? Yet the action is based on Section 66A at a later date than Section 499 at an earlier date. What is your suggestions or views on evaluating best course of action under similar circumstances. When will such action be sustainable and/or effective or equivalently that is, unsustainable and ineffective ?

    ReplyDelete
  9. Dear Anon,
    I think it would help to move a quashing petition under Section 482 of the CrPC before the High Court since the said offence does not apply to the facts of the case. If you fail in the quashing petition, then the next best option is to move a discharge application before the charges are framed seeking discharge in so far as Section 66A is concerned. Hope this helps.

    Bests,
    Sai.

    ReplyDelete
  10. While the section itself uses the word sending, doesn't the use of the the word 'transmitted' in the explanation make the ambit wider than merely including messages that are sent directly?

    ReplyDelete
    Replies
    1. Amshula,
      Thanks for the comment. I am not sure if the word "transmitted" as used in the explanation helps in understanding whether or not plain and simple online publications are covered by Section 66A. Transmission at best refers to the process of sending, but does not throw light on the nature of the communication. An alternative interpretation of the provision is possible using the section itself, which I shall shortly comment on.

      Bests,
      Sai.

      Delete
  11. Cool stuff thanks for sharing it.

    ReplyDelete
  12. Can a separate complaint be filed under 499 ipc n different complaint under 66A it act for same offence of sending defamatory mail. Please reply.

    ReplyDelete
    Replies
    1. Dear Ujas,
      If the case is one for defamation by publication, as i said, Section 66A of the IT Act does not apply. Only Section 499 applies. If the mail is meant for multiple recipients, both Section 66A (for sending) and Section 499 (for defamation) will apply for obvious reasons.

      Bests,
      Sai.

      Delete