CLAUSE AND ACTION
EVEN AS THE SC STRUCK DOWN THE DRACONIAN SECTION 66A OF THE IT ACT, TACKLING HATE SPEECH ON THE INTERNET STILL REMAINS A BIG CHALLENGE
While the nation heaved a sigh of relief after the Supreme Court struck down the draconian Section 66A of the Information Technology Act as violative of the rights to freedom of speech and expression guaranteed in the Constitution, tackling hate speech on the Internet remains a big challenge.
The victims of stalking, threats and intimidation, the recipients of obscene messages, those whose photographs have been morphed and others targeted in cyber crimes are still need of protection. Section 66A was poorly drafted, and its vague wording ended up being misused, letting powerful politicians jail people who were critical of them. But many real victims were all but forgotten, and it is their interests the government needs to protect in any new law, while ensuring that dissent and critical voices are unfettered.
Many say, in fact, that there was no need for Section 66A at all, as most of the offences it intended to tackle were already covered under the Indian Penal Code and the Code of Criminal Procedure. Other socalled “offences” like causing annoyance, inconvenience or obstruction, are not criminal offences offline anywhere. It is these provisions that were misused the most.
Sub-section (a) — which sought to punish anyone who sent “any information that is grossly offensive or has menacing character” through a computer or mobile device — was taken from a British law of 1935, which in Britain was written down several times as judges differed on what exactly was “grossly offensive” as distinct from “offensive” and which threats were “menacing”. Menacing threats anyway are already an offence under the IPC.
Similarly, sub-section (b) — to deter inciting communal hatred, racial, religious and caste violence — was also largely redundant as spreading enmity, hatred or ill-will is also an offence under the Indian Penal Code.
But it was the poorly-drafted sub-section (c) — penalising anyone sending an email or SMS “causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages” — and intended to prevent anonymous cyber stalking and cyber harassment thousands of women face every day — that ended up being the one most misused by politicians to jail people who criticised them.
While sub-section (b) used the qualifier “persistently”, the phrasing of sub-section (c) implied that the sending of even one single message or piece of information could be punishable with a jail term. The use of “or” between phrases made the various clauses stand alone and independent. Thus, Section 66A(c) could be used to punish a single email message, which caused annoyance or inconvenience, even when there was no intention to deceive or mislead the recipient about the origin of such a message.
There were several inconsistencies between this clause and similar actions committed in the physical offline world. For instance, under Section 507 of the Indian Penal Code, “whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment for a term which may extend to two years”. But if the same message is sent by email/SMS, the punishment may extend up to three years.
It is unfortunate that the Supreme Court upheld Section 69A of the Information Technology Act in its entirety. This deals with blocking access to information deemed dangerous by the government. The court held that there were enough safeguards to ensure that this provision would not be misused by the government.
But all legal measures against blocking access to information are of no avail as technical counter measures are easily available, many for free. Indian residents can access content considered objectionable by the Indian government by going via anonymisers or proxy servers, or through peer networks. They can also access mirror sites, or the versions cached by automated search engines as they crawl the Web.
Some recent instances illustrate that it is difficult to prevent Indian residents from accessing hate speech hosted on servers abroad, especially in the United States, where hate speech is protected by the First Amendment. The extreme Hindutva website http:// www. hinduunity. org spreads hatred against Muslims and Christians in India, and against those who advocate secularism. The website, hosted by a Zion supremacist outfit in the US, has called for the assassination of top political leaders. After the Mumbai train attacks of July 2006, India’s Computer Emergency Response Team directed all Indian ISPs to block access to it, but even today recently cached versions are seen on Google, Yahoo, Bing by Indian subscribers. Further, hinduunity.org has an active community on Facebook.
The website http://www.dalitstan.org, also hosted in the US, advocates the secession of Kerala, Tamil Nadu, and Karnataka from the Indian Union. It also spreads hatred against upper-caste Hindus. US human rights groups classify it as a hate group, but its advocacy is protected speech in the US. In July 2006, the CERT issued a direction to Indian ISPs to block access to it, but it is still easily accessible in this country.
French and German courts on one side and American courts on the other have grappled with issues of propagating racial and religious hatred on the Internet. An auction website run by Yahoo! in the United States, hosted on American servers, offers Nazi items for sale by individuals all over the world. France has strict laws against selling or displaying anything that incites racism, especially Nazi items.
In April 2000, in response to a lawsuit by the International League Against Racism and Anti-Semitism, a French court ruled that Yahoo! must take all appropriate measures to prevent French residents from viewing Nazi memorabilia, no matter where the persons offering the items for sale were located. Yahoo! contended it was impossible to comply, but the French court noted technologies were being developed using which around 70 per cent of French Internet users could be identified by their IP addresses, and imposed a penalty on Yahoo USA of 100,000 francs per day.
Instead of appealing against this ruling in France, Yahoo went to a US district court in California, which held the French court’s decision was inconsistent with the First Amendment to the US Constitution, and not applicable in the US. When this was appealed in higher United States courts, the California ruling was not struck down, and the US Supreme Court declined to review the US Court of Appeals ruling.
It might therefore be almost impossible for the Indian government to implement Section 69A blocking access to content it deems dangerous. In fact, blocking content will only encourage people to try to access the banned content. The author is a consultant in telecommunications and
information technology
Many say, in fact, that there was no need for Section 66A at all, as most of the offences it intended to tackle were already covered under the Indian Penal Code and the Code of Criminal Procedure