Unless
the person used an internet service which was not paid by him but was
paid by the Government such as say a free kiosk in a Railway station or
in a Government office, the communication device should be considered
as privately owned, privately financed and privately paid for though at
some part of the network or a router end there might have been a
publicly owned gateway.
If
we accept that "Twitter" is a "Public Service", by anology, e-Bay
should be considered as a "Government owned Stores". All copyright and
patents on web assets become properties of the Governments. I am sure
that this cannot be accepted as the intention of any legislation unless
we are nationalizing the entire Internet assets of a country.
As
regards the "Content" Vs "Message", I continue to hold the view that
the two are different. Indian law recognizes them as different. Section
66 addresses content and Section 66A addresses "Message". Content is
published. "Message" is sent from one person to another. There is a
source and destination both of which represent individual legal
entities in the case of a message. It is a C2C transaction. Content is
"Posted" from an individual to a service provider. It is a C2B
communication.
The
only way the definition of "Content" and "Message" can be merged is to
consider the protocol under which the Internet is based on. Transaction
on the internet uses the TCP/IP and http protocols where data packets
are sent and received from one device to another. If this technical
aspect of Internet is considered then everything on the internet is a
"message". The "Content" is constructed by combining a series of
messages in the form of data packets. However this technical view
cannot be accepted as the "Legal Intention" at this point of time. If
so there was no need to recognize "Content" and "Message" differently".
I
therefore continue to hold the opinion that the legislative intention
behind the introduction of Section 66A was to bring E mails and SMS/MMS
messages within the ambit of control which Section 66 failed to do
under ITA 2000.
While
the Section adequately addresses "Threat" messages including "terrorist
threats", "Extortion threats" etc under Section 66A (a), it adequately
addresses "spoofed", "impersonated" communications under Section
66A(c), it tries to address "Cyber Stalking" and "Cyber Bullying" under
Section 66A(b).
It
is not the legislative intent of Section 66A(b) to modify or add to or
otherwise alter the provisions of "Defamation" as prevalent in the IPC.
Any such offense could be dealt with by IPC along with Section 4 of ITA
2000/8 which declared the equivalence of an electronic document with a
written document.
In the event "Defamation law" is read into Section 66A(b), we are introducing a needless and unintended conflict with IPC.
Section
66A(b) clearly indicates that it wants to address deliberate
mischievous acts where a person knowing that some information is false
still bombards the recipient repeatedly with it and causes "Annoyance"
etc. There could not have been a better description of "Cyber
Bullying".
We
know that a communication sent directly to a person cannot constitute
"Defamation". An utterance which is loud and made in public alone
constitutes "Defamation". An e-mail or an SMS/MMS is always sent by one
and meant for another and even if it is abusive it cannot be
defamatory. When a message is sent to multiple recipients, if the
recipients constitute a closed group, then also it is difficult to
imply "Defamation". Only when the message is sent to a large number of
unconnected persons it can be equated to "shouting in the public" and
constitute a defamation (subject to it not being true etc).
A
"Twitter" is a publication and not an one to one message. Even the
followers get the message because they have become members of the close
community. Distribution of tweets to them is a service they have
subscribed to. Those who view the message through browsing and
search engine entry are "pulling" the information on their own
volition. Hence it is not a "message sent".
In
view of the above, Twitter related offenses need to be treated as
content related offenses and Section 66A is not to be applied to them.
The view of the Australian department of prosecution also supports this view.
[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 I 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]
