This article is written by Geeta Sajjanshetty, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from LawSikho.
Table of Contents
Introduction
Digital technology has become part of our lives; internet usage and particularly, the use of social media has amplified in recent years. As a society, we have become more communicative on social media. Statistics show that there are around 1.6 billion people using Facebook and 1.2 billion are visiting Youtube[1]. Many of us spend at least 10 minutes each day on social media liking, sharing, forwarding messages. We are not mindful of what could be the consequences of such forwarding or liking any message; however, communications made on social media or any online medium have to be careful of not being disrespectful, causing annoyance, hurting or offending anyone. Though in the Shreya Singhal case[2] Sec 66A of the IT Act has been held to be unconstitutional and no person can be arrested by the Police under Sec 66 of the IT Act, however, that does not mean that any kind of content can be posted online disregarding the outcome and the effect of such post.
Laws regulating offensive/derogatory messages
The Information Technology Act, 2000(IT Act) stipulates certain provisions and punishments for cybercrimes. The Act of sending images of nude women or girls, sharing of morphed photos would constitute offences under the IT Act. The offence would be publishing obscene contents online. Sec 67 of the IT Act prescribes punishment of imprisonment up to 5 years and with fine of rupees one lakh for publishing obscene information in electronic form. As per the considerations listed in section Sec 67, the material should be lewd/lustful or appeals to the indecent interest or tend to deprave and corrupt persons. Publishing obscene images, photos, videos or messages attracts criminal prosecution and punishment.
The IT Act further provides punishment for putting online sexually explicit materials for which the punishment is imprisonment upto 5 years along with fine which may be upto ten lakhs.
Sec 67 B of the IT Act stipulates a punishment of imprisonment upto 5 years along with fine which may be upto ten lakhs for publishing materials online containing children engaged sexually explicit act or conduct, or indecent representation of children or facilitating online abuse of children etc.
The IT Act also specifies the Information Technology (Intermediaries Guidelines) Rules, 2011 to be followed and complied with by the intermediaries. The Rules[3] require that the online portals/platforms such as payment portals, online auction sites, e-commerce websites, internet search engines etc., to inform the users of their policies, rules, regulations, terms and conditions to not to host or publish, transmit or display any content that could be harmful, harassing, obscene, defamatory, pornographic etc., harming minor in any manner, infringing patent or trademark, violates any law in force, impersonate another person; or threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order. The intermediaries have to inform the users about the consequences of the non-compliance of the user agreement /terms of use, privacy policy etc.
The provisions in other laws that come into play when any offensive or derogatory messages are liked, shared or commented are the following:
Sec 295 A of the Indian Penal Code (IPC) which defines as “Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with a fine and/or imprisonment.” Many times, we come across loaded statements made about religion or religious practises on social networking sites intending to incite a war of words or violence, such statements may invite arrest, so we have to be extra cautious of what kind of messages that we are forwarding, liking or sharing. The anticipatory bail application moved by S Ve Shekhar was rejected on the ground that forwarding the message equals endorsing it.
Messages posted on a Whatsapp group or on Facebook, other social networking sites containing words meant to harm or knowing that such imputation will harm the reputation of a person, such actions may end up inviting arrest under sec 500 of IPC as publications of such words could amount to defamation. The offence as defined in section 499 Defamation, “Whoever, by words either spoken or intended to be read, or by signs or by visible, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” The punishment prescribed for defamation is of imprisonment for 2 years or with fine or with both.
Other sections of IPC that could be attracted if contents of the post/messages shared, liked or forwarded containing offensive or derogatory in nature are Sec 505(1)(C) for statements made to intent to incite any class or community against other class or community is punishable with imprisonment upto three years or fine or both. The said sections of IPC may be attracted individually or in combination with other sections may be attracted depending upon the facts of respective cases.
The right of freedom of speech and expression guaranteed under Article 19(1)(a) is not an unfettered right, it comes with its reasonable restrictions. The right of speech cannot be used in an unrestricted manner to offend, defame, cause harm to other persons, communities etc. Reasonable restrictions have been imposed to prevent misuse and abuse of the right to freedom of speech.
Case laws relating to forwarding/sharing of offensive or derogatory messages on social media
In MC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra[4], the Delhi HC granted an injunction restraining the discontented employee from sending derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world so as to harm the reputation of the company,
In order to defame the Petitioner, a fake online account was created in the name of the victim for sending obscene messages to the victim’s friends to tarnish her reputation. The offender also stalked the victim online in the case of Kalandi Charan Lenka v. State of Odisha[5], the High Court of Orissa held the accused guilty of cyber defamation.
The direction was issued by the Delhi High Court in the case of Swamy Ramdev v. Facebook and Ors to remove all defamatory content posted online against yoga guru Baba Ramdev, without any territorial limit, stating that if the content is uploaded from India or such content is located in India on a computer resource.[6]
S Ve Shekhar v. The Inspector of Police Cyber[7] is a very recent example of getting caught for forwarding an annoying, offensive and obscene message. The local BJP leader shared a post on his Facebook account that women journalists who sleep with their bosses become anchors and newsreaders. The ground taken by the Petitioner was that he had only forwarded the message and was not the creator/author of the message, therefore not liable for prosecution. The Madras HC observed that this would send a wrong message to the society at a time when we are talking of women empowerment. The language and words used (in the Facebook post) are not indirect but a direct abusive foul language which is not expected from a person of his calibre and age.”
Tips to be safe and secure online
A considerable time is spent every day online and social networking sites in liking, forwarding and sharing messages unmindful of the consequences. It is better to be safe than sorry, herein are few tips to be secure and prevent unwarranted circumstances:
- Use politically appropriate language and diplomacy while commenting on a controversial issue.
- Don’t be offensive just because somebody does not agree with your viewpoint.
- Don’t share messages which may raise controversy.
- Divergent views arise as the perception, thinking varies with people from varied socioeconomic and cultural backgrounds and one must be aware of this.
- Check the appropriateness of the message before sending it to others or liking and forwarding.
- Don’t indulge in unmindful forwarding of messages.
- Constructive criticism which is beneficial may be posted.
How is this dealt with in other countries
In the year 2018, Germany came up Network Enforcement Act (NetzDG )[8] law to provide procedures and regulatory mechanisms for online platforms for the contents. It provides fines for individuals and the online companies who fail to comply with the procedures.
The European Union (EU) has put the General Data Protection Regulation (GDPR) to put in place the regulations for the online companies, including the social networking sites to receive, store and use the data.
Australia[9] has come up with the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 to regulate the contents online.
It is very surprising to know that in China sites such as Google, Whatsapp and Twitter are blocked and they have their own version such as Webio, Bidu and WeChat, they have huge online cyber Police.[10]
Conclusion
Words are free, it’s how you use them may cost you, therefore watch your words. Online-contents are regulated and monitored, with the virtual world it is not difficult to trace the creator of the content, therefore it is essential to take utmost care of what kind of information is put online; is it for informative, educative, motivating or entertainment. Avoiding offensive and abusive posts/messages/information will help in maintaining peace. Be safe online.
References
[1] https://sannams4.com/digital-and-social-media-landscape-in-india/
[2] Shreya Singhal v. Union of India, Writ Petition (Crim.) No. 167 of 2012 (Mar. 24, 2015) judgment available at https://indiankanoon.org/doc/110813550/
[3] Rule 3(2) Information Technology (Intermediaries Guidelines) Rules, 2011
[4] https://indiankanoon.org/doc/31110930/
[5] https://indiankanoon.org/doc/73866393/
[6] https://indiankanoon.org/doc/80844707/
[7] https://www.barandbench.com/news/forwarded-message-equal-accepting-endorsing-message-madras-hc-denies-s-ve-shekhar-anticipatory-bail-read-order
[8] https://www.bbc.com/news/technology-47135058
[9] https://www.dentons.com/en/insights/alerts/2019/april/15/australia-suddenly-passes-new-laws-regulating-streaming-of-abhorrent-violent-material
[10] https://www.bbc.com/news/technology-47135058
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