What the Supreme Court’s order means for the way forward
Manoj Kumar | March 25, 2015
In a landmark judgment, the Supreme Court of India struck down Section 66A of the Information Technology Act as being unconstitutional and violative of Articles 19(1)(a) and 19(2) of the Constitution of India.
The now defunct Section.66A of the IT Act, read as follows:
“Punishment for sending offensive messages through communication service, etc.66A. 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; or
(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 purposes 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, image, audio, video and any other electronic record, which may be transmitted with the message.”
The very language of the provisions of Section.66A makes it clear what the legislative object, focus and rationale was behind the law. Section.66A had sought to address the difficulties faced by private individuals as well as by public authorities due to lack of oversight and regulation in cyber governance particularly in the social networks area. The offenses under Section.66A included spreading of information which was offensive or annoying to an individual as well as that which could create enmity or hatred.
Did we, or, for that matter do we not need such oversight and cyber governance particularly in the Social Networks?
The possible answers may lie in looking to see some of the dimensions of the digital era we live in every moment of our lives and where to we stand on cyber governance.
The digital era
The modern urban experience all over the world is defined, it can be said - thanks to the democratization engendered by technology in its various avatars - by the fact of our almost complete symbiosis with electronic gadgets of individual preference.
This is evident if one considers that we usually generate at least ten different types of electronic data from the moment of waking on any given morning to before even our second cup of coffee. It continues as we use a card key to gain access to our office, respond to that first e-mail and so on. Most of these actions are just minutiae, about as memorable as where we ate lunch two weeks ago. Nor are these actions widely visible the way they once were, when office workers spent most of their days interacting directly rather than over their keyboards. Yet, paradoxically, the ‘digital breadcrumbs’ these actions leave behind can accurately capture individual behavior in more detail than ever before - not to mention permanently.
Historically, most corporations have cared much more about measuring the results of professional workers than analyzing the behavior that led to those results. However, as both individuals and the content they create become increasingly intertwined, it becomes nearly impossible to separate the understanding of results from the understanding of behavior. In fact, understanding why things happen is becoming more and more important in society in general.
In our increasingly litigious culture, humongous quantities of assorted resources can hang on the “why” – on whether something appears to be a tragic mistake on our isolated exception as opposed to a cynical, routine circumvention of decency or accepted practice.
The trail doesn’t stop when the workday is over. It is commonly acknowledged that activity on the internet increases, by far, after office hours, due mostly to increased and unfiltered presence on social networks.
Do we therefore need a regulation to prevent any misuse by any person of the plethora of information generated all around us all the time?
Social network: Popularity and challenges
The World Wide Web has undergone a profound shift since its inception: from being merely an information sharing medium, it has made the transition to becoming a more inclusive, communication-based social medium. The ways to communicate, propagate and consume information with the latest collaborative technologies have made the web more user-centric.
The result has been that more people than ever from all over the world have embraced this revolution in generating and sharing content; users have started communicating with peers in collaborating, socializing and creating new content; vocalizing and participating in likeminded groups, and finding global voice for them.
Cyberspace has seen a significant growth in the scale and richness of online communities and social media, and this process is facilitated by the ever-expanding ambit of the web, and the various technologies that provide access to it, thereby creating a vast chain of human interaction.
A social network is graph of relationships and interactions within a group of individuals, which plays a fundamental role as a medium for the spread of information, ideas and influence among members. The outreach of the more well known amongst these, such as Facebook, Twitter and the recently defunct Orkut, has resulted in putting together millions of people from around the globe who share contents, video, articles, etc. from all over the world, with many new users signing up daily.
Their popularity is evident in India, where out of the 38% of the total population that uses the internet, around 63% make use of social networks. The majority of these users are in the age bracket of 18 to 26 years, them also being the most active amongst age groups on social networking sites.
As with other aspects of the web, there is a negative side to this phenomenon, and cases of misuse are on rise. Since social networking websites can be accessed by anyone, intrusion of privacy has become a big issue with many users knowingly or unknowingly compromising their personal information, and disclosing the same to unverifiable sources.
Fake profiles are on rise; cases of profile impersonation intended towards maligning the reputation of an individual are becoming a commonly reported offence. Another cause for concern is that cyberspace is becoming a haven for spammers and purveyors of porn – viable solutions to filter this kind of noise out of social conversation has been the need of the hour.
Was then, Section 66A the answer to instilling some best practices in cyber governance and cyber behavior? Was a straight 3 years jail term sufficient answer to the problem.
The answer seems to be that the Government overstepped a bit by resorting to a draconian legal regime and thus seeking to instill governance by threat and duress. Considering the wide number and variety of stake-holders involved, the answer to instilling cyber governance and best practices in cyber behavior lies in ‘cyber advocacy’ – to educate the stakeholders and users on best practices and encourage self discipline and self regulation.
Any draconian provision should only be used against the most deserving deviants who refuse to come on the right side of law thus leaving no option. Such cases would come under the exceptions and thus jail would not be the rule but the exception.
While there is no dispute that cyber governance and best practices in cyber behavior is the need of the hour, the Government needs to rework the legal regime to give priority to the fundamental rights enshrined in Article 19(1)(a) and 19(2) of the Constitution of India, provide for applying any draconian provision only against the most deserving deviants who refuse to come on the right side of law and thus respecting the vast majority of others who are ready to exercise self restrain required for maintaining the best practices and best behavior in cyber governance.
(Kumar is the founder and managing partner of Hammurabi & Solomon & Visiting fellow with the Observer Research Foundation at New Delhi.)
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