Scrap a bad law

IN Media Freedom | 01/12/2012
As it stands, section 66(A) of the IT Act has no inherent space for a different approach. One that would allow for counselling or review.
Cyber stalking and free speech offences require different laws, says GEETA SESHU

 The campaign against Sec 66(a) of the Information Technology (IT) Act, 2000, has evoked spontaneous support from a cross-section of society, the latest being the apex court itself. In response to a petition filed by a young law student, the Chief Justice wondered why no one had approached it before and whether suo moto action should be taken!

Indeed, the arrests of the two young women in Palghar, Maharashtra, after a mob reacted violently to the comments one of them posted on Facebook on the shut down in the wake of the death of Shiv Sena leader Bal Thackeray, was probably the last straw in the growing outrage over the continued misuse of the law.

The arrest of an industrialist for his tweet on the alleged corruption of Union minister P Chidambaram’s son, Karti; the Chandigarh police’s umbrage at the  comments posted on its own Facebook page by an aggrieved citizen over their alleged inaction; the arrest of a professor in Kolkata over the email he forwarded of a cartoon poking fun at West Bengal Chief Minister Mamta Banerjee; the arrest of cartoonist AseemTrivedi over his cartoons on corruption and the ‘sale’ of the country - much like a blind hunter, the system  seemed to pick its victims at random.

But not quite. As is obvious in all these cases, the complainant was also an aggrieved person or a group of persons (perhaps with the exception of the Chandigarh police) who either had a political agenda or definitely subscribed to one. Even the horrifying arrest and jail term of two employees of the airline Air India, for their Facebook posts allegedly critical of the Congress-I, seemed to have been inspired by inter-union rivalry.

That the duo were suspended from their employment and remained silent till the protest over the arrests of the young women in the Palghar incident emboldened them to speak, is indicative enough of the incredible promise of intimidation the law carries.

Much has been written about the arbitrary wordings of Sec 66 (a) of the IT Act. The Maharashtra Home minister R R Patil agreed that the law was worded in such a way that police officers would require specialized training in  its application. Union IT minister Kapil Sibal was quick to express his disapproval over the arrests of the young women, though alas, he showed no such emotion over the arrest of industrialist Ravi Srinivasan over the tweet on Karti Chidambaram.

The minister’s subsequent statements in favour of free speech and the qualification that the law, as it stands, was necessary for  internet governance gave no real confidence that better sense will prevail. Even after, selective consultations with some ‘stakeholders’, left one clear that the government is yet to accept that in a democracy, everyone has a stake in freedom of expression!

But let’s not quibble. At least the government has reacted to the campaign and quickly put into motion a set of guidelines that complaints that are lodged under this section would be reviewed by a senior police officer. The moot point is: is this enough?

Enough of a protection on the application of a faulty law? Suppose, for the sake of argument, the senior police officer, in his wisdom, did feel all those Facebook posts and tweets and cartoons and emails were causing annoyance and were inconvenient or insulting and were therefore grossly offensive or menacing. What course does the officer adopt? Turn a blind eye to the complaint, turn it down and therefore open his own action for scrutiny, or act on it?

Now here’s the rub. If the police officer were to act on the complaint, the law is crystal clear. The accused would have been committing an offence that could put her/him behind bars for three years. A law that shies away from defining the terms it lays down for offence, is unambiguous about the punishment it lays down.

Law enforcers have argued that this section was in fact put to good use since it was enacted for the several hundred people who committed crimes like phishing and cyber stalking and persistently harassed women over the internet. The National Crime Registers Bureau has a record of the number of persons who were apprehended under the act.

In crimes such as these, where the threat of menace and injury is strong, the harassment is real and the sending of ‘false’ messages that can mislead several gullible people to part with their money or to riot or stage violent protests, there is no argument that a law must protect victims. However, the jury’s still out on whether existing laws can do so or whether a separate law is needed to tackle cyber crimes.

As it stands, the law has no inherent space for a different approach. One that would allow for counseling or review, where both parties may sit across a table (in both physical form or a cyber platform) and discuss what annoyed or harassed or caused injury and harassment. Facebook has tried unsuccessfully to get users to police content, a move that isn’t free of abuse as trolls can well engineer a clamour of protest and shut down  someone’s expression.

But what of messages that are really the expression of an individual, however reprehensible the views may seem or however one may dispute the idea? What if the views may go contrary to that of a majority and the comments may seem to be expressed emphatically, perhaps even in language that some may find abusive? What of content that expresses dissent about a political party, a political process or a political thought?

Can all such acts be criminalized? Can those accused for these ‘crimes’ be treated in the same manner as the cyber stalkers and bullies, the mischievous people who send spam on lotteries or the decidedly more dangerous folk who sit a computers and morph pictures of victims of violence so as to incite others?

Even in such cases, counter propaganda can work. In the Assam riots, the excessive shut down and blocking of sites by the Indian government, also cut off sites that debunked the propaganda. In the incidents over the circulation of the anti-Islamic videos, that followed barely a couple of months later, saner voices prevailed, though the false propaganda did claim its victims.

Greater awareness and a sustained attempt at media literacy, of all users of the internet about the dangers of phishing and false messages about lotteries or awards, can be effective in reducing their effects on the susceptible.

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