Scrapping Sec 66A Won't Bring Total Freedom To Cyber Space

by Sohini Bagchi    Mar 25, 2015


Supreme Court’s scrapping of Section 66-A, a law that allowed arrests for offensive content online, undoubtedly upholds the right to freedom of speech and expression. The verdict comes as a relief for both social media users, who will no longer be required to take down content after complaints from any party. At the same time, it has brought cheers to global Internet giants like Google, businesses that operate online and most importantly social media sites such as Twitter, Facebook and LinkedIn as they see the ruling is about encouraging more investment in the Internet sector in India.

A step up for online freedom

According to Nasscom, the landmark ruling upholds the fundamental right to freedom of speech and expression given under the Constitution of India. Expressing his views on the development, Mr. R. Chandrashekhar, President, NASSCOM, said, “Internet as a medium is meant to be free and transcend territorial borders with minimal regulation and monitoring. The IT Act has well served the objective to provide the legal framework for data security and internet laws in the country.”

He believes that the changes enabled by the Supreme Court judgement would provide much needed boost to the citizens of the country and help the objective of a digitally connected India. Chandrashekhar said that Nasscom will continue to work with the government to formulate rules and provisions for effective governance.

Misuse of freedom

As posting “offensive” comments online is no longer a punishable crime, there are voices of concerns that the biggest threats may come from social media sites such as Facebook and Twitter, if no measures of control are imposed. However, legal expert Amit Mukherjee states “While contentious social media posts will not attract Section 66A any further, penal provisions relating to defamation, obscenity, mischief, public disorder, etc remain.”

Mukherjee states that the government can still issue orders to block access to websites under 69A rules, which creates a mechanism for blocking. Persons aggrieved by social content can approach a nodal officer in the Information Technology Department. The department’s review committee will then examine the posting, call the person who has posted it if he is identifiable, and then take a call on blocking it. Only a designated officer can pass such orders. This, according to him, will reduce liability on intermediaries and will result in a transparent independent ecosystem.

A greater onus now lies with the government to re-examine the issue and strike an appropriate balance by upholding freedom of expression and also deter unbridled defamation in cyberspace, believe experts and also depends on how the social media companies dealing with the same.

Consequently, Communications and IT Minister Ravi Shankar Prasad who believes that India is a democratic country and free flow of ideas should be respected, however, said it is important to have self-regulation and that social media platforms should also practice some self-restraint.

For example, Twitter said it will make sure that the “voices” of its users are defended at every cost. “India is one of the fastest growing markets for Twitter in terms of users and we have a great reputation as a company for defending and respecting our user voices… We will defend and protect our users interests across the world,” asserts CEO Dick Costolo during his maiden India visit.

The same rule however will not be applied when dealing with terror groups like ISIS and others as Costolo states that accounts of terror groups like ISIS are against law and service terms.

Controlling cyber crime

Despite the decision being praised by most communities, some experts believe that Section 66A also contained legal recourse against a number of other cyber crimes such as stalking, bullying, threatening through SMS and email, phishing and spamming, among others and the Supreme Court seems to have overlooked this aspect. Some experts have reportedly argued that with newer kinds of cyber crimes emerging on a daily basis, the ruling.

The Indian Penal Code’s Section 499 and 500 only takes care of it in the physical world. But Mukherjee states, under Section 4 of the IT Act brings electronic information at par with physical documents, and hence the same provision can be applied.

While freedom of expression has been hailed and celebrated among online users, to help combat instances of cyber stalking, bullying and other natures of cyber crime, the government, along with IT bodies are reportedly working together to bring out guidelines to address some of these areas.