Section 66A is Dead. Long Lives its Abuse
No one is above the law. This indeed is apparent when you see action being taken even against a former High Court Judge for circulating a video recording containing ‘obscene defamatory remarks’ against ‘former and serving male judges, their wives and against lady judges’ and also ‘threatening sexual violence’.
However, it is imperative that the action instituted is pursuant to a subsisting law. If a provision is no longer law, prosecuting a person under such repealed or struck down provisions is unconstitutional and bound to be struck down. Section 66A of the Information Technology Act, 2000 (as amended) (“IT Act”) unfortunately suffers from this ignominy.
This provision, which was in any event not intended to combat online defamation but was subjected to rampant abuse resulted in its strike down by the Supreme Court in Shreya Singhal v. Union of India in 2015. Despite this, it continues to be misapplied wrongfully till date.
Section 66A IT Act made sending of offensive messages through a computer or communication device punishable with three years imprisonment. It was drafted in an open-ended fashion covering multifarious acts such as making sending of offensive or menacing messages; or of false information to annoy, inconvenience, endanger, obstruct, insult injure, criminally intimidate or to cause enmity, hatred, ill will; or sending by email messages intended to cause annoyance or inconvenience or to deceive or mislead addressees, and criminalized each such act, as an offence.
Read More On Online Safety with NS Nappinai here.
A lot of the heads covered in Section 66A IT Act will be evocative and lead to nostalgia. For it may appear to be the panacea for all things that ail online or digital domains. This section covered offences such as cyber bullying, cyber stalking, dissemination of fake news, spreading hate speech and that which would have been most relevant during Coronavirus lockdown times, it provided a criminal provision against financial frauds committed through cheating and impersonation using computers or communication devices. Significantly, despite this section casting its net wide, it did not encompass ‘harming reputation’. There is no overlap between this provision (Section 66A IT Act) and the criminal provisions to combat defamation, which are Sections 499 to 502 of the Indian Penal Code, 1860 (“IPC”). Yet Section 66A IT Act ended up being abused mostly for alleged ‘online defamation’.
Tweet by a businessman, ‘got reports that Karti Chidambaram has amassed more wealth than Vadra’; cartoons by Aseem Trivedi ‘mocking Parliament’ and adverting to corruption; emails by a University Professor Ambikesh Mahapatra against then chief minister of West Bengal; and remarks online by even a class XII student against a politician are just some illustrations of abuse of this provision. The last straw was of its abuse through the wrongful arrests of two girls in Maharashtra, one for a Facebook post about and a ‘like’ of it led to the ultimate strike down of Section 66A IT Act.
As of March 2015, Section 66A IT Act is no longer law. It was struck down by the Supreme Court as being unconstitutional. The open-ended provision, which defies basic tenets of criminal jurisprudence and was perceived as a grave threat to free speech was struck down.
Yet till date, there are continuing reports of this provision being invoked including for social media posts, tweets and alleged online defamation. This despite the Supreme Court directing in 2018 (PUCL v. UOI) that every District Court, State Government / Union Territories and police station is appraised and aware of its decision striking down Section 66A IT Act. Recently, in Sharadha v. State of Karnataka (2019), the Karnataka High Court directed costs of Rs.10,000/- to be paid by the police who wrongfully registered a criminal case under Section 66A IT Act. This will hopefully stop its abuse.
The reason for continued abuse of this provision, which is no longer law is apparent when we evaluate the scope and extent of defamation provisions under Indian laws.
Section 118A, Kerala Police Act & Reasons for its Withdrawal
Recently, in an attempt that was akin to reviving Section 66A IT Act, the Kerala Government introduced Section 118A in its Kerala Police Act, 2011, through an ordinance, which criminalised false, abusive, defamatory, intimidating or humiliating communications, which harmed the mind or reputation of a person and provided for three years imprisonment or fine. This provision again gives the weapon of police complaints and arrests to combat defamation. With protests manifesting in public interest litigations, the Kerala Government withdrew this ordinance.
The inclusion of the above provision was purportedly to combat cyber bullying and offences against women. News reports of September 2019 for instance point to the arrests of persons for alleged defamatory posts against political personalities but refusal to register a complaint by a woman of defamation through Whatsapp messages claiming that she had eloped with her former colleague.
Delinking Cyber Bullying from Defamation
All news reports on the Kerala Ordinance indicate a clear mix up between cyber bullying and defamation. This lack of understanding is perhaps one reason for poor implementation of existing laws to combat offences against women and children online.
Cyber bullying is a virtual attack on victims. It harms them physically, psychologically and financially. It is not just about harming their reputation. It causes alarm, enmity, ill will and could outrage their modesty and demean victims. Aggravated forms of cyber bullying can also involve circulation of sexually explicit content. Each of these acts amount to criminal offences which are beyond defamation.
Defamation – Online or Offline
Defamation is all about reputation. Beware what you say, write, make or publish. If it is intended to harm or you know or have reason to believe it could cause harm the ‘reputation’ of a person; it lowers the ‘moral or intellectual character’ or raises imputation on ‘caste or calling’ or ‘credit’ or imputes loathsomeness or disgrace, whether the content is published on print or online, be it spoken in person or through audio / video dissemination online, it amounts to defamation. And under Indian laws, defamation can give rise to both civil and criminal proceedings.
Defaming someone is an offence in itself and it is independent of other online offences including cyber bullying or stalking. In some instances there may be an overlap.
Defamation is what is termed as a ‘non-cognizable’ offence i.e., an offence for which police cannot register a complaint. It is also a bailable offence and hence police cannot arrest persons for committing the offence of defamation. For non-cognizable offences, the complainant would have to approach a Magistrate’s Court and file a private complaint which if found to be valid will result in summons being issued to the accused and prosecution being initiated.
The unfortunate outcome of Section 66A IT Act is of converting cases of defamation from private complaints to police complaints that result in arrests. This abuse led to an unequivocal strike down of the provision and is also placing restraints on its come back in any other form.
Free Speech & Remedies against Defamation
It was heartening to note that the message of Cyber Saathi® is permeating all corners of India – that there are laws and provisions under existing legislations to combat cyber bullying and there is no reason for victims to believe they do not have remedies. Whilst some acts of cyber bullying may involve defamation, the same is not the only remedy open to victims of cyber bullying.
Online defamation, as with offline or physical acts of defamation attract the same criminal provisions under Sections 499 & 500 IPC.
If, however, the online violation goes beyond just harming reputation and amounts to a vituperative attack on the victim/s, depending on the mode and manner of such attack, other provisions of IPC and / or IT Act may be invoked. For instance, if cyber bullying online outrages modesty of a woman, (S.509 IPC), or is voyeuristic (S.354C IPC), intimidatory (S.506 IPC) or criminal intimidation through anonymous communications (S.507 IPC), these provisions of IPC clearly address the issue. Similarly, cases that amount to violation of privacy by capturing or circulation of private parts of persons or contains obscene or sexually explicit content, Sections 66E, 67 and 67A IT Act will be applicable. Whilst several of the IPC offences set out above are gender specific to protect women, others including those under IT Act are gender neutral.
A separate enactment for cyber bullying would certainly be a welcome move more so from the perspective of deterrence. However, using cyber bullying, as a front for making defamation a cognizable offence permitting police arrests is untenable. The attempts of combining a cyber bullying legislation with defamation are harmful, as each of these are intended to battle different forms of offences. It also harms the fight against cyber bullying and victim rights.
‘Truth rarely catches up with a lie’, the Delhi High Court quotes (Tata Sons Ltd., v. Greenpeace International (2011)), whilst addressing the ‘extraordinary capacity of the internet to replicate almost endlessly any defamatory message’. With one’s reputation being recognized time and again by India’s Supreme Court, as an intrinsic fundamental right, it is imperative that online defamation is suitably dealt with. But the very same Supreme Court also points out that ‘fear of serious injury cannot alone justify suppression of free speech and assembly’ (Shreya Singhal (2015)). Balancing both rights of safety and liberties therefore becomes the imperative be it combatting cyber bullying or defamation.
The writer is an Advocate, Supreme Court of India & Founder – Cyber Saathi Foundation. This column in collaboration with SheThePeople.TV takes forward the initiative to empower victims through knowledge of threats and vulnerabilities on electronic domains and remedies to combat them through laws and remedies. This will be a monthly column that will be published on the first Friday of the month.
 Refer for a more detailed analysis: Nappinai. N. S. (2017). Technology Laws Decoded. LexisNexis.