Section 66A
in Karti Vs Ravi incident-(Part
I)
Click
Here for Part II
Section
66A of ITA
2008 has been receiving lot of
attention presently because of the
arrest of one
Twitter user by name Ravi
Srinivasan. There is widespread
criticism of
the section warranting a need for
an academic debate on
whether there is anything wrong in
the section itself or in its
interpretation
and if so who is responsible for
the interpretation which lead to
the
arrest of Mr Ravi Srinivasan, a 45
year old small time businessman
who
incidentally was
also an IAC worker.
Facts of
the case as
reported in the media are as
follows.
It is alleged that Mr
Ravi Srinivasan had posted a
message on Twitter stating
“got reports that
Karti chidambaram has amassed
more wealth than vadra.”
This
message would
have been present on the twitter
page of Mr Ravi and would be
available for a
search engine to identify if any
other person searched for a
message say for
words such as “Karti” or “vadra”.
It
would have been distributed as a
notification to 16 followers of Mr
Ravi.
Mr Karti
Chidambaram
s/o Union Finance Minister and
eminent advocate Mr P Chidambaram,
then sent an
email to Police
at Puducherry raising
some objection to the message.
We
may presume that
the email alleged
that he was being
“defamed” by the posting.
Puducherry Police then
sent a fax to Tamil Nadu Police
which
caused Tamil Nadu police to call
on Mr Ravi Srinivasan’s house at
5.00 am and
arrest him under Section 66A of
iTA 2008.
Mr
Ravi Srinivasan
was then
produced before a magistrate was
then released on bail.
Now the proceedings
will
continue and if Mr Ravi Srinivasan
is found guilty he may be punished
under Section
66A which carries a possible
imprisonment of upto 3 years besides
fine.
Considering
the importance of this incident to
"Netizens Right to Freedom of
Speech and Personal Liberty", it
is therefore
essential for us to analyse the
whether the incident reflects the
offence for whcih the accused has
been charged.
Section
66A states as
under:
66–A. Punishment
for sending offensive messages
through communication service,
etc.
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
makes by making use of such
computer resource or a
communication device;
(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
title of the
section indicates the legislative
intention that this section should
address
offences committed with the use of
e-mails and messages sent through
communication devices
meaning SMS/MMS messages.
This supplements
Section 66 which applies to
publishing and distribution of
"Obscene messages".
Publishing of "Defamatory
Messages" are
covered under IPC where
electronic document can be
admitted as an
evidence.
Sec 66A
has three sub sections.
The first relates to information
that can be classified as “Grossly
Offensive”
or “Menacing”. The second
addresses to “False information”
and third to
“Impersonated messages”.
Under
section 66A(a),
sending of messages which are
grossly offensive or menacing is
an offence.While what
is
“menacing” can be inferred as
something
which
is
designed
to
harm
a person
or
property,
what
is
“Grossly offensive” can
be
a
matter
of
judicial interpretation.
What
can be offensive to one may not be
so to another.
What can be
grossly offensive to a person in
one age
group or political affiliation or
religion may not be so to a person
of another
age group or political affiliation
or religion.
“Obscenity”
can be
offensive to some. A Cartoon can
be offensive to another. Cruelty
can be
offensive to some while a picture
of a bomb blast can be offensive
to another.
Also what
is
“Offensive”
may
not
always
be “Grossly Offensive”.
This section
will therefore be
tested repeatedly in Courts
in the coming days.
Sub
section (b)
relates to “information known to
be false by the person sending it”
andhence is not
applicable for information that
the sender believes to be true.
We may
note that
“Grossly Offensive” or “Menacing”
messages under sub section (a)
will be
punishable even if the person
sending it believes it to be true.
The
distinction of whether a message
is “Grossly Offensive” or not
becomes
irrelevant if it can be proved
that the
sender
knew that
the information
was false.
Second
condition to be
fulfilled for invoking Sec 66A(b)
which is not present in 66A (a) is
that the
information has
to be sent
“persistently”.
In other
words, only
false messages sent repeatedly
qualify
as an offense
under
this sub section.
Under
these
pre-conditions, the purpose of
sending
the message can be argued as
either to cause annoyance,
criminal intimidation,
ill will etc.
The
subsection 66A(c)
refers to cases where a message is
sent to “deceive or mislead the
addressee or recipient
about
the origin
of such messages”. As a
result of this provision many spam
messages and
all Phishing messages will come
under this section.
Sending of messages
through SMS or E mail for what is
called “Cyber Stalking” or “Cyber
Bullying” will
also be offences
under this section.
A
question may
arise if content posted on
a website or a
blog can be called as “message”
under this section. If one goes by
“legislative
intent” it appears that
section 66A is to be applied in
cases of E Mails,
SMS/MMS or messages and not for
content posted on a website.
Twitter is
a “Micro
Blogging” website where the
account holder is provided a page
where his “tweets”
are published. These will be
available for reading and for
search engines to pick up. If any
person uses a search engine he may
pull the information. He may also
stumble
upon the page if he knows the URL
of the tweeter.
A few
persons may
register themselves as “Followers”
and at their request the website
sends them
copies of the tweets
automatically.
In the
instant case Mr
Ravi Srinivasan has only mentioned
that he “Got reports” and the
report was
that “Mr Karti had amassed more
wealth than Vadra”.
The message is not
“Grossly offensive” or “Menacing”
and hence cannot fall under
Section 66A(a).
There is no hiding of source
identity and hence it cannot come
under Section
66A(c).
For the
offence to be
considered as falling under 66A(b)
apart from it being annoying etc.,
it has to
meet two more tests namely “it
should have been sent
persistently” and “the
sender should not know that it is
false”.
Based purely on this
message, it is difficult to
imply defamation by any
ordinary person either on Mr Karti
or on Mr Vadra.
However it
appears
that Mr Karti has interpreted the
message as defamatory to himself
for whatever reason he
may feel right and lodged a
complaint.
Psychologically,
this
possibility
reflects a combination of
“Persecution Complex” or a
“Guilty mind”
and “Prejudice on Mr Vadra” by the
complainant. He might have felt
that
mere comparison to Mr Vaadra was
defamatory. Such a tendency is
seen in
many cases of “Pseudo
Cyber Stalking” where a victim
goes through an imaginative
experience
in his
mind and reacts on the basis of
such feeling. I have personally
come
across two
such instances both in Chennai. I
therefore consider that filing of
a
complaint by Mr Karti
cannot be objected to. It is his
right and he has exercised it.
However,
Police need
to have been more professional in
their approach and rather than
blindly acting
on the complaint, ought to have
examined the incident
ignoring the political
affiliation of Mr Karti.
If
Police
consider that Mr Ravi had
committed a “Prima Facie” offence
under
Section 66A,
they need to prove that Mr Ravi
knew that the information (that
there
was a report...) was false and
still he sent messages
persistently to
Mr Karti to cause annoyance etc.
Since such
evidence was unlikely to have
been available with the
Police at 5.00 am when they went
for
arrest, it is clear that they had
no prima facie evidence to
consider that
Section 66A was applicable.
At
best they could have only invited
him for
further enquiry and collection of
his statement during normal hours
of
the day. This would have been more
civil and would have also
satisfied
Mr Karti. By acting in the manner
they have done they have
brought Mr Karti to disrepute and
caused more harm to him than what
Mr
Ravi Srinivasan could ever
do with his tweet.
In view of the above,
it appears that the Police
officers involved in the arrest
were grossly
ignorant of the provisions under
Section 66A of ITA 2008 .
Click
Here for Part II
[P.S:
The above is the opinion of Naavi
as a Techno legal consultant and
not
to be treated as a legal opinion.
Also I declare that this as well
as
Part II of the article has been
written for academic debate and I
declare that I am not a member of
any political party and no special
motivation can be attributed to
the references made in the
articles]
