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01 April, 2015

Securing cyber freedom

BRP Bhaskar
Gulf Today

India’s Internet community, now believed to be 300 million strong, heaved a sigh of relief last week as the Supreme Court struck down a notorious legal provision which was hanging over their heads like the sword of Damocles.

The provision, Section 66A of the Information Technology Act, made electronic transmission of messages which are grossly offensive or menacing or aimed at causing annoyance or inconvenience an offence punishable with imprisonment of up to three years and a fine. It was smuggled into the 2000 Act through an amendment, which Parliament passed without close scrutiny.

It was obnoxious for two reasons. One was that it used vague terms such as ‘grossly offensive’ and ‘causing annoyance or inconvenience,’ which could be stretched to cover almost anything.

The other was that it empowered the police to register a case on receipt of a complaint and arrest the alleged offender without even a preliminary enquiry.

The provision was widely misused by the police under the influence of politicians, including those who were not holding any office. At the instance of the Shiv Sena, the Maharashtra police arrested two young women for their disapproval of the Mumbai shutdown in mourning for the party’s founder, Bal Thackeray. A small industrialist in Puducherry was held for a tweet which said former Union minister P Chidambaram’s son, Karti, had made more money than Congress President Sonia Gandhi’s son-in-law Robert Vadra. A Keralite working in a Gulf State was enticed home for circulating the photograph of a palatial building falsely claiming it was Communist Party of India-Marxist leader Pinarayi Vijayan’s house.

In response to a Right to Information Act query a newspaper was informed that in a two-year period 137 cases under Sec 66A were registered in five of Delhi state’s 11 police districts. Data relating to the other districts was unavailable.

India’s Constitution guarantees the citizens freedom of speech and expression but allows the state to place reasonable restrictions on all freedoms in the interests of national security, sovereignty and integrity, friendly relations with other countries, public order, decency or morality. The court held that the restrictions imposed by the vaguely worded Section 66A go beyond the limits of reasonableness and had a chilling effect on free speech.

The court verdict elicited contradictory responses. Avid social media users hailed it as a Magna Carta for our times. Self-appointed protectors of the order mourned that the state was no longer in a position to defend itself against the depredations of irresponsible Net users.

Both responses are based on inadequate appreciation of facts. The best part of the judgement is that the police can no longer arrest a person on the basis of a mere complaint. However, the state can still block writings it does not approve of. Section 69A of the IT Act and the rules framed under it give the government the power to itself block or order intermediaries such as Facebook or internet or telecom service providers to block access to any information generated, transmitted, received, stored or hosted in any computer resource.

Also intact are Section 79 and the rules which cast on the intermediaries a duty to remove or disable access to certain kinds of material within 36 hours of being notified by the government or its agencies. These provisions also exempt the intermediaries from liability if they follow stipulated conditions.

The court let these provisions stand even though, like Section 66A, they are couched in vague terms. However, it said, they must be “read down.” Analysts took this to mean that the intermediaries need act on a government directive only if it is backed by a proper notification or court order.

Critics of the IT Act have argued that no separate cyber law is needed as the ordinary laws of the land have enough provisions to protect national sovereignty and integrity, friendly relations with other countries, public order, decency and morality. However, the court said there could be a separate law to deal with cyber crimes.

The problem really is not the intent of the law but the propensity to misuse its provisions. While the court verdict has reduced the scope for police intervention there is still room for politicians to play around.

Cyber freedom inevitably carries with it the threat of misuse by reckless users. But the consequences of such misuse are often exaggerated. Activities by state and non-state agencies possibly pose far greater threats than malicious individuals. -- Gulf Today, Sharjah, March 31, 2015.

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