Yesterday, one of our commentators brought to my attention the arrest of a businessman from Pondicherry, Mr.S.Ravi, for purportedly “offensive” tweets against the Union Home Minister, Mr.P.Chidambaram’s son, Mr.Karti Chidambaram. Section 66A of the Information Technology Act appears to have been invoked against Mr.Ravi.
In an earlier post, I had discussed in detail the scope of applicability of the provision drawing a distinction between “publication”, and “sending messages” through a communication device or a computer resource. The relevant portions of the post are 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."
As regards the application of Section 66A to tweets, to my mind, Twitter as a micro-blogging site is a platform for communication through publication, as opposed to communication by “sending messages”.
It must be borne that the purpose of the provision is to deter and frown upon messages sent via emails/SMS, which though amount to communication, do not necessarily translate to publication always (unless it is a group message). Even when offensive or insulting information is sent as a group message via emails or group texts, the provision’s scope is limited to the act of “sending messages”, with the issue of defamation being covered by Section 499 of the Indian Penal Code.
Therefore, I don’t think Section 66A applies to tweets or status updates on Facebook.
Comments and corrections are welcome!