Laws on objectionable posts

Laws on objectionable posts

Author: Mr. Harshal Sreen, Institute of Law, Nirma University.

Introduction

Today it’s an era of development that has to lead to the emergence of the cyber world and there is a massive expansion in the growth of technology. As Information Technology evolved it gave birth to the cyberspace where the internet provides unrestricted access and opportunities to many people to have access to any information, data storage at any time with the help of high technology. With the development of technology it has led to the inevitable misuse of technology in the cyber world and as a result, giving rise to various “cyber crimes” at the domestic as well as at the international level. As each coin has two sides alongside the development it is also causing serious legal issues across the world. As popularly known as “social networking” is the new fad in India and very few people could escape from its clutch. Consequently, this has also given rise to many legal issues as well. Most of these legal issues pertain to online acts or omissions that are resulting in giving rise to civil and criminal liabilities.

The constitution of India provides freedom of speech and expression under Article 19 of the Indian constitution. However it is not absolute freedom to the citizens, the constitution of India imposes reasonable restrictions. It is always subject to certain reasonable restrictions that the State may impose in the interest of the citizen of the country.

Laws which imposes restrictions

Social media is regulated and restricted by the Information technology Act, which was enacted by the parliament of India in 2000. IT Act by imposing restrictions regulates the content that gets uploaded over several sites and all over the internet. Social networking media is an “intermediary” within the meaning of the Indian information technology act 2000 (IT Act 2000). Thus social networking sites in India are liable for various acts or omissions that are punishable under the laws of India.

IT Act, 2000

• Section 66A of the IT Act has been enacted to regulate the social media law India and assumes importance as it controls and regulates all the legal issues related to social media law India. This section clearly restricts the transmission, posting of messages, emails, comments which can be offensive or unwarranted. The objectionable message can be in many forms like text, image, audio, video or any other electronic record which is capable of being transmitted.

However, in 2015, in a landmark judgment upholding the right to free speech in recent times, the Supreme Court in Shreya Singhal and Ors. v. Union of India,[1] struck down Section 66A of the Information & Technology Act, 2000.

• Section 67 – Punishment for publishing or transmitting obscene material in electronic form. Section 67 of the Information Technology Act, 2000 is a replica of Section 292 of the Indian Penal Code. This section relates to publishing obscene material in “electronic form”. Thus, this section covers online stalking. If the stalker tries to publish any obscene material about the victim on social media i.e., in electronic form so as to bully the victim, he shall be guilty of an offence under Section 67 of the IT Act. Section 67 prohibits and punishes with imprisonment extending up to three years and fine for the first conviction and to five years and fine upon a second conviction
• Section 67–B-Deals with the punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc. in electronic form. In the online world, Section 67 of the IT Act covers similar offences as IPC Section 292. Child Pornography has been exclusively dealt with under Section 67B.

Other provisions

But the repealing of this section doesn’t mean that the people have absolute freedom from posting any content in social media.

The Indian Penal Code will continue to apply to social media online viz. Intentionally Insulting Religion Or Religious Beliefs (S. 295A), Promoting Enmity Between Groups On Grounds Of Religion, Race Etc. (S. 153A), Defamation (S. 499), Statements conducing to Public Mischief (S. 505), Insulting The Modesty Of A Woman (S 509), Criminal Intimidation (S 506), Sedition (S124-A), etc.

Sec 499 IPC – Among these provisions one of the most important provisions is section 499 and 500 under IPC. Under the IPC, the defamatory statement could be oral or written or in sign language or by visible representation and should be made/ published with the intention to harm or with knowledge about its defamatory character. Thus, section 499, IPC is wide enough to encompass the publication and dissemination of defamatory content via electronic means which is punishable under section 500, IPC. It defines the punishment for the defamation.

The traditional law dealing with obscenity (including pornography) in India is contained in sections 292-294 of the IPC. Section 292, IPC prohibits the sale, letting on hire, distribution, public exhibition, and circulation, etc., of obscene material. Section 293 provides enhanced punishment for sale etc. of obscene material to any person under the age of twenty years. Even an offer or attempt to do so is punishable. Publishing as well as circulating obscene photographs of women is also punishable under sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986. These provisions can also be used for punishing people who circulate obscene material in electronic form.

Offensive posts through WhatsApp

The government has given notice to WhatsApp to take immediate steps to contain fake news and misuse of its platform. People don’t have absolute freedom to share and express whatever they want even on the online platform. There have been many instances where the admin of the groups have been arrested by the police for forwarding fake and objectionable messages and posts. 2 admin from UP were got arrested as they shared communal messages in the group. They were charged under section 295 and section 505 which deals with the injury or defiling the place of worship with the intent to insult the religion of any class and publishing any fake news, rumor to create ill-will or enmity respectively.

[1] (2013) 12 S.C.C. 73.