Analysis of Section 66A of the Information Technology Act

Introduction

Digital technology and new communication technologies have had a significant impact on our day-to-day life. People and companies are increasingly relying on computers rather than paper documents to produce, distribute, and save information since it is less costly, and simpler to keep, retrieve, and interact with.

Finally, it is totally up to us whether we take enough security steps to prevent being victimised or whether we wait to be hurt before seeking legal remedies since it is entirely reliant on our actions. There are a variety of technology, a variety of users, and a variety of crimes in the cyber realm.

In today’s world, everyone has access to the internet. Many financial transactions are carried out on our smartphones and computers. There are a number of people that keep a careful eye on our every move and don’t miss a single opportunity.

Even while you can limit cyber-crime activity and large losses against you, arguing that being a technology expert and using proper security measures would keep us completely and always secure from being victimised is not fully correct.

Due to a lack of legal structure, many people are reluctant to do business or conclude transactions in electronic form. As e-commerce removed the requirement for paper-based transactions, there was a need for legal processes to be established so that e-commerce could be recognised.

The IT Act[1] is India’s most important law governing the internet. The IT Act does not address all the challenges that have arisen in the area of internet governance during the last several decades. Delivering inflammatory messages using communication devices is punishable by Section 66A of the 2000 Information Technology Act.

This might include any information created, sent, or received on the computer system or device, including attachments in the form of text, images, or audio files. Article 19 of the Indian Constitution guarantees the right to freedom of speech as a fundamental right.

It was first passed in 2000, and subsequent amendments included new sections to deal with new crimes. Outrage about the Act’s shortcomings and misuse by the authorities has been growing since its passage.

Supreme Court of India revoked section 66A on March 24, 2015, after Shreya Singhal filed a PIL challenging the section’s legitimacy, in order to protect the right to free speech and expression. The Supreme Court of India emphasised the importance of free speech and expression in its judgement in Shreya Singhal v. Union of India[2] (2015).

Court decisions and Section 66A are in conflict because of a climate in which free speech, opposition, and legitimate criticism are seen as being utilised in a dishonest manner.

Main Body

Legalizing electronic data, avoiding cybercrime, and assuring security measures were the goals of the Information Technology Act of 2000. The recent rise in cybercrime has led to an increase in the importance of data security. This led to the passage of a new law on October 27, 2009: the Information Technology (Amendment) Act of 2008.

In order to fight terrorism via electronic and digital media, the Amendment Act includes a number of regulations relating to data protection and privacy. The “E Commerce Act of 1998” was the first draught of the legislation and was prepared by the Indian government. A new Ministry of Information and Technology was created as additional advancements in the field necessitated its creation.

The Information Technology Act of 1999 was the name given to the new law that was passed in 1999. In December 1999, the draught legislation was proposed to Parliament and passed in May 2000. The law was proclaimed on June 9, 2000, with the President’s approval.

Internet commerce was the primary focus of the 2000 Act. Digital signatures, e-filings, electronic data security, and other issues were addressed in the report. The idea was to make online trading safer and more transparent.

Additionally, the regulation was created to prohibit the misuse of electronic information. Only a few years before to its enactment, India’s IT sector had only begun to take off. Within five years, towns, villages, and cities throughout India were engulfed in a conflagration that no one could have predicted.

As expected, the 2000 Act didn’t address the issue of cybercrime fully. A few short references to cybercrime were made. Amendments to the Act were made in 2008 after public criticism about the lack of coverage of a wide variety of cybercrimes. This modification was passed in reaction to the terrorist attack on Mumbai on November 26, 2008 and should be noted.

To put it mildly, the amendment’s text was controversial and poorly thought through. The act’s applicability and meaning were uncertain[3]. There is a perception among experts that the laws in place to fight cybercrime is inadequate to the task at hand.

At Lok Sabha on December 15, 2006, the Information Technology Amendment Bill, 2006 was introduced. Legislators have recommended a wide range of changes to cope with new forms of offences such sending abusive emails and multimedia communications; child pornography; cyber terrorism; publication of sexually explicit materials in electronic form; and so on.

This method resulted in the inclusion of Section 66A of the IT Act. According to the law, people who sent ‘vulgar mobile phone SMSs to females’ were specifically targeted. Shri Nikhil Kumar led the committee that received the bill on December 19, 2006, and it was passed. There was no mention of Section 66A’s possible misuse by the standing committee in its unanimous report on recommended changes to the original statute.

On December 22, 2008, the Lok Sabha voted unanimously to pass eight new legislations. “Offensive texts” were defined in the 2006 Amendment Bill, passed as the IT Amendment Act, 2008 (referred to as the “Amendment”), which made it illegal to send “offensive texts” to anybody under the age of 18.

The Rajya Sabha passed the Amendment Act the next day. Immediately after the November 26, 2008, Mumbai attacks, the Parliament prioritised legislations that seemed to be intended to investigate and punish conduct that harmed India’s security.

There were changes to the National Investigation Agency Act, the Unlawful Activities Prevention Act, and the Information Technology Act. A major goal of the Information Technology (Measures) Act of 2008, passed in 2008, was to avoid future terrorist attacks like the November 26, 2008, Mumbai terror attacks.

Aiming to combat terrorism and cybercrime, the Amendment Act gives law enforcement the ability to monitor and restrict websites for the sake of national security by intercepting communications sent via mobile phones, computers, and other electronic communication devices Opposition members interrupted both houses on both days because of comments made by then minority affairs minister A.R. Antulay criticising the circumstances of a police officer’s death in the 2008 Mumbai terrorist attacks.

The Amendment Act was approved in the Rajya Sabha after only 21 minutes of discussion in the Lok Sabha.  On October 27, 2009, the Amendment Act entered into force. Additionally, Section 66A of the Internet and Information Technology Act of 2000 was updated in 2008 to control a variety of online offences such as cyber-terrorist activities (such as disclosing personal information), cyberbullying, and so on[4].

For the aim of irritating, inconvenience, and so on, this Section empowers police to make arrests based on their subjective judgement.

When Mumbai’s renowned leader Bal Thackrey passed away in November of that year, the whole city was in grief. Almost the whole city was shut down because many people came to pay their respects to their leader.

Traders were unable to do business in the Indian financial capital. Thane district students questioned the city’s shutdown to mourn a political leader’s death, as two other students in the area did[5]. A criminal investigation was not something that had crossed their minds. Section 66A of the Information Technology Act of 2000 was used by the authorities to charge them with violating public order.

In light of the girls’ innocuous statements, the police’s action was completely inappropriate. Considering section 66A’s vague language, it was decided to take the necessary steps. Only Section 66A will be discussed. Since the beginning of time, legislators have sought to protect the public from criminal activities by passing laws.

But some of the laws passed by the legislative body are likely to be misused by certain individuals for their own financial gain Legal gaps may be used by criminals to thwart punishment and harass victims.

Therefore, the court must interpret the provision in a manner that furthers the legislative aim or even provides guidance to the administration in order to prevent its misuse. Section 66A is an example of a misapplied law.

Instead of providing direction, the Supreme Court ruled that the section was unconstitutional right away. Statute Section 66A covered a wide range of offences, from cyberbullying and trolling to harassment and intimidation.

The section

Computer resources and communication devices are covered under Section 66A, which deals with offensive messages made through these mediums. According to the law, anybody who publishes anything that is threatening or very offensive with the intention of inflicting pain or distress on another person will be punished by imprisonment and a fine.

No more evidence is necessary to show that the action is wrong if the message is insulting or threatening. To put it another way, an action might be taken only because the statements are viewed as offensive or intimidating by the enforcers.

An extra motive or purpose must be proven, such as the offender disseminating the information to promote ill will, anger, enmity and so on, where the information is wrong Expanding the IT Act’s jurisdiction from E-commerce-related crimes, Section 66A was passed.

People-friendly, intelligible by the average person, and least dependent on other laws were legislative goals for the IT Act of 2000 amendments, according to the standing committee report. It is impossible to argue with the legislative goal.

Because there was no discussion in Parliament, Section 66A came out as ambiguous as it did. After the terrorist attack on November 26, 2008, there was a clear need for fundamental change in cyber law reform.

In addition, the interruption in Parliament made it more difficult for the modified bill to be considered. As expected, an amendment with several loopholes was signed into law. Among other things, it was the first of its kind to deal with online hate speech, defamation, criminal intimidation, and the likes.

It was necessary to create a new set of rules for a new manner of criminal activity, even if there were already provisions in the IPC that were similar. In order to deal with online information promptly, this section empowered police officers or cyber cells to do so.

The famous case which held the section unconstitutional

PIL (Public Interest Litigation) petition was initiated in November 2012 to declare Section 66A (IT Act, 2000) of the Information Technology Act, 2000 unconstitutional because of its blatant misuse. One of India’s, if not the world’s, most significant internet law judgements of the modern era were sparked by this.

According to the petitioner in Shreya Singhal v. Union of India (2015), a section in Section 66A of the Information Technology Act, 2000 does not specify particular language and is subject to considerable ambiguity when it comes to defining what constitutes troublesome speech.

There is a provision in this Section that allows police officers to use their right of free speech without having to provide any specific justification for it. The Indian Supreme Court ruled in this landmark judgement that Section 66A of the Act breaches the Indian Constitution’s protection of freedom of speech and expression.

Aside from that, Article 19(2) did not apply, which empowers the government to set reasonable restrictions on people’s freedom of speech and expression. An online discussion can be banned because the court found that Section 66A has the potential to prohibit all forms of online communication because it doesn’t distinguish between an ordinary discussion and the promotion of one particular point of view that has a causal relation to public disorder and the security of the State. The Supreme Court ruled that Section 66A of the Act was unconstitutional.

As a result of Shreya Singhal’s ruling, the Information Technology Act, which oversees people’s internet usage, has been greatly improved. Internet users were relieved by the Supreme Court’s decision, which they considered as a significant victory in expressing their fundamental right to free speech and expression.

There is a reduction in the problem of political pressure resulting in wrongful arrests, as well as the ability to freely express one’s ideas online. People’s fundamental rights were protected by the Supreme Court in this case.

Legislation that is opposed to the Constitution cannot be passed by Parliament, and if an Act is found to be unconstitutional by a court, it must be ruled invalid. The Supreme Court and the High Courts have been given this power in order to strengthen the rule of law across the country.

Because of this, the Court concluded that section 66A was unclear and may be interpreted to penalise even innocent speech, therefore making it unenforceable. No new cases under Section 66A will be allowed to proceed as a consequence of this finding.

The aftermath of the judgement- the 66A zombie still continues to haunt people

In November 2012, a PIL (Public Interest Litigation) petition was filed to declare Section 66A (IT Act, 2000) of the Information Technology Act, 2000 unlawful because of its flagrant abuse. India, if not the whole globe, has had a major impact on internet legislation thanks to this decision.

Information Technology Act 2000 Section 66A, according to Shreya Singhal vs. Union of India (2015), does not define a specific language and is ambiguous in determining what constitutes harmful speech. Police personnel may utilise their right to free speech without providing any explicit reason under this Section.

The Indian Supreme Court decided that Section 66A of the Act violates the Indian Constitution’s guarantee of freedom of speech and expression in this important decision. Also not applicable was Article 19(2), which allows the government to impose reasonable limits on people’s freedom of speech and expression.

Courts have ruled that an online conversation may be restricted because Section 66A doesn’t discriminate between an ordinary talk and the promotion of one specific viewpoint that has a causal link to public disturbance and the security of the State. 66A of the law was declared invalid by the Supreme Court.

Because of Shreya Singhal’s verdict, people’s internet use has been considerably enhanced by a new Information Technology Act. Netizens were relieved by the Supreme Court’s judgement, which they saw as affirming their basic right to free speech and expression.

Additionally, there is less political pressure that leads to false arrests and more freedom to express one’s thoughts online. The Supreme Court upheld the basic rights of the people in this case.[6] As long as a law is pronounced unconstitutional by a court, it cannot be approved by Parliament and must be declared null.

For the sake of strengthening the rule of law, the Supreme Court and the High Courts have been granted this authority. Consequently, the Court decided that section 66A was ambiguous and may be read to punish even harmless speech, rendering it ineffective. In light of this conclusion, no future cases under Section 66A will be permitted to continue.

Conclusion

Sadly, in many circumstances, cyberbullying, trolling, or even abusive speech has been seen as a minor offence in the internet world. The creation of any law to regulate cyberbullying (including gender bullying) or trolling may be opposed by some researchers on the basis that freedom of speech should not be restricted, especially when it does not harm the victim’s reputation as severely as serious defamation, libel, or slander cases.

Bullying and trolling, on the other hand, have a profoundly negative impact on the minds of those who are subjected to them (especially when the victim is a child). Laws that are too broad in scope may not be successful in curbing improper speech.

However, this is an important consideration. In the digital era, enforcing such laws might result in a wide range of problems. The Philosophy of Law must be used in a restorative approach in order to improve society’s knowledge. In addition, Section 66A of the Telecommunications Act, 2003 was criticised for being eerily similar Section 66 of the UK Post Office Act, of 1953.

A recent international conference on “Social media for good,” which this author was asked to attend, revealed that researchers from across the world are working on laws to prevent hate speech in cyberspace.

Better legislation might be created based on the positive aspects of Section 66 A. by the courts and parliament. In order to accomplish justice, it is necessary to examine the laws in a fresh light and analyse their consequences from every viewpoint. Taking into account the good impacts of Section 66A, it is anticipated that India would have a stronger system in place to avoid the abuse of free expression.

There isn’t a rule in nature that can’t be abused. There should be no justification for repealing a law because of the mere possibility that it would be broken, When writing new law, the legislature keeps the needs of the people it represents front and centre in its thinking.

When a law is passed, it is not intended to be utilised by the government or the general population for their own benefit. Unfortunately, Section 498A as well has been misapplied in the past.

Since the legislature’s goal was to ensure that no woman is subjected to domestic violence for whatever reason, the petition to overturn it cannot be entertained. Since Section 498A was enacted, the courts and the administration have been more civil. However, it was not challenged as unconstitutional.  

As a result of a lack of proper regulations in the area, the police’s discretion often went unchecked. In order to guarantee that the act was properly enforced, the court may have issued specific regulations for arrests by police agencies, as it did with Section 498A.

Typically, the courts are expected to investigate the legislative intent of legislation and interpret it correctly. As jurisprudence advances, the law may be able to adapt to new situations without making significant adjustments. The judge must set the rules for assessing whether or not an action includes the element of offence when the laws are vague or subjective.

An inability to meet this criterion has resulted in a dearth of cyber security. Section 66A has morphed into a monstrous beast. However, there is a real need for Section 66A to be more clearly defined. Section 66A, if redrafted and clarified, might be a powerful tool in the fight against terrible crimes like cyberbullying and harassment.

In order to protect the public against heinous crimes, both the court and the government must ensure that this need is satisfied. Additional measures must be taken to ensure that no one is punished for violating Section 66A.

References:

[1] Information Technology Act, 2000 (IND)

[2] Shreya Singhal V Union of India AIR 2015 SC 1523

[3] Explainer: How the new it rules take away our digital rights. The Wire. (2021, February 26). Retrieved December 21, 2021, from https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights

[4] Halder, D. (2015). A retrospective analysis of Section 66 A: Could section 66 A of the information technology act be reconsidered for regulating ‘bad talk’ in the internet? SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3049541

[5] Mumbai shuts down as Bal Thackeray makes final journey today. Hindustan Times. (2012, November 18). Retrieved December 21, 2021, from https://www.hindustantimes.com/mumbai/mumbai-shuts-down-as-bal-thackeray-makes-final-journey-today/story-Yf5PydUlVlQZd904AbiEJP.html

[6] Zahoor, F. (2020, May 18). How a Bill becomes a Zombie? the journey of section 66A of the information technology act, 2000. Internet Freedom Foundation. Retrieved December 21, 2021, from https://internetfreedom.in/how-a-bill-becomes-a-zombie-the-journey-of-section-66a-of-the-information-technology-act-2000/

This article has been authored by Ashish Abhisek, a student at KIIT School of Law, Bhubaneswar.