Open Access Research Article
Critical Appraisal Of Section 66 Of Information Technology Act 2000 (By-Adv. Jyoti Akshay Murhe)
Published Paper
Article Details
Critical Appraisal Of Section 66 Of Information Technology Act 2000
Authored By-Adv. Jyoti Akshay
Murhe
Modern Law College, Pune, Maharashtra
Index Of Content
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Sr. No.
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PARTICULARS
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Abstract
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1.
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Research Methodology
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2.
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Introduction
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3.
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Main features of the
amendment to the Act on Information Technologies
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4.
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Hypothesis
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5.
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Shortcomings Of The Act
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6.
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Why is Section 66A necessary
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7.
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8.
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References
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Abstract
Nowadays
we are surrounded by the internet. And Infosec 1 is an important element of the
Internet world. Information security is essential for web services. All
organizations, institutes and businesses also maintain the security of their
information and have constantly worked to keep their data safe. Organizations
and private companies are constantly training their security professionals with
the latest technologies. Information security is essential for organizations
and Internet users who use web services such as social networks, real-time
applications, e-mails. Organizations and companies know the importance of
security, but the user who does not know much about the Internet and
information security. The research will show why information security is
essential for organizations and other Internet users and how they can secure
their information, how their information is used by hackers, and what
techniques hackers use. And why security awareness is essential for Internet
users and organizations. And what step should the government take?
1.Research
Methodology
Research methodology simply refers to the practical “how” of any
given piece of research. More specifically, it’s about how a
researcher systematically designs a study to ensure
valid and reliable results that address the research aims and objectives.
For example, how did the
researcher go about deciding:
·
What data
to collect (and what data to ignore)
·
Who to
collect it from (in research, this is called “sampling design”)
·
How to collect it
(this is called “data collection methods”)
·
How to analyse it
(this is called “data analysis methods”)
In a dissertation, thesis, academic journal article (or pretty
much any formal piece of research), you’ll find a research methodology chapter
(or section) which covers the aspects mentioned above. Importantly, a good
methodology chapter in a dissertation or thesis explains not just what methodological
choices were made, but also explains why they were
made.
In other words, the methodology chapter should justify the
design choices, by showing that the chosen methods and techniques are the best
fit for the research aims and objectives, and will provide valid and reliable
results. A good research methodology provides scientifically sound
findings, whereas a poor methodology doesn’t.
2. Introduction
Vernians believe that Jules'
imagination and scientific temperament were the reason for the development of
modern technology as we see it today. When he wrote "20,000 Miles Under
the Sea," he was writing about the world's first submarine, the Nautilus,
piloted by the mysterious Captain Nemo, and lo and behold, we soon developed
our own form of underwater transportation.
Or when he was writing the
story "From The Earth To The Moon," he was writing about the Gun
Club, an organization after the American Civil War that had ambitions to
develop and send the first man to the moon using a muzzle-fired capsule.
incredibly long weapon mechanism, scientists from all over the world joined the
space race, which culminated in the landing of Apollo 11 in the Sea of
??Tranquility in July 1969. To a greater or lesser extent, such visionary works
of prolific writers have always been the foundation of modern inventions such
as nuclear power, monorail transport or even the internet.
With the development of the
World Wide Web and various web applications that have facilitated communication
and made information readily available, there has been a growing threat of
misuse of technology for illegal and unwanted purposes such as credit card
fraud, phishing, hacking and spam. . Activist groups like Anonymous have sprung
up all over the world to try to release and make available data and expose
state secrets that governments keep after being inspired by "martyrs"
like Julian Assange and Edward Snowden.
They are heroes to some people
and nightmares to government organizations. To curb the growing menace and nip
the problem in the bud in a technologically backward country like India, to
consider the Model Law on Electronic Commerce adopted by the United Nations
Commission on International Trade Law (UNCITRAL) and to legally recognize
electronic commerce, the Information Technology Act, 2000 was introduced in
India with subsequent amendment in 2008.
The IT Act of 2000 was
primarily intended to provide legal recognition to e-commerce in India. In view
of this, most of the provisions mainly concern the implementation of digital
certification processes in the country. Computer crime as a term was not
defined in the law. He only dealt with a few computer crime cases. These acts
defined in Chapter XI of the Act are:
1. § 43 – Illegal access,
introduction of a virus, denial of service, damage and manipulation of computer
accounts.
2. Section 65 – Manipulation,
destruction and concealment of computer code.
3. Section 66 – Acts of
hackers resulting in unauthorized loss or damage.
4. § 67 – Proceedings related
to publication, transmission or causing publication of an obscene/lasciful
nature.
Punishment under Sections 65
and 66 is three years or fine which may extend to two lakh rupees or both.
Under Section 67, first time offenders can be punished for up to 5 years with a
fine up to one million rupees. A subsequent offense can result in imprisonment
for ten years and a fine of up to two lakh rupees.
3. Main Features Of
The Amendment To The Act On Information Technologies
The amendment to the
Information Technology Act, which entered into force after presidential
approval in February 2009, has the following main features:
• Legal Entity Liability for
Sensitive Personal Data – The new amendment has been brought about by changes
to Section 43 of the IT Act 2000, which for the first time makes any legal
entity that handles sensitive personal data have insufficient controls, leading
to wrongful loss or wrongful gain . each person is obliged to pay this person
damages in the amount of five million crowns.
• Introduction of viruses,
manipulation of accounts, denial of service etc. which are punishable – Section
66 has been amended to include offenses punishable under Section 43 which has
also been amended to include the above offences; the punishment shall be
punishable with imprisonment for a term which may extend to three years or with
fine which may extend to five lakh rupees or with both. This is a change from
the previous position, when introducing a virus, tampering with someone's
account, was first punishable by imprisonment.
• Phishing and Spam – Although
not specifically mentioned, it can be interpreted in the provisions mentioned
here in Section 66 A. Through this section, sending threatening, harassing
messages as well as misleading information about the origin of the message has
been made punishable by imprisonment for up to three years and a fine penalty.
• Stolen computer resource or
communication device – newly added section 66B was introduced to deal with acts
of dishonestly receiving and retaining any stolen computer resource. This was
also punishable with three years or a fine of one million rupees or both.
• Misuse of digital signature
– Section 66C. Fraudulent use of someone else's digital signature is punishable
with imprisonment for a term which may extend to three years and will also be
punishable with a fine of up to one million rupees.
• Cheating- Cheating using
computer resources has been punishable with imprisonment of any description for
a term which may extend to three years and shall also be punishable with fine
which may extend to one lakh rupees (Section 66D).
• Cyber ??Terrorism – The
newly introduced Section 66F talks about cyber acts which threaten the unity,
integrity or sovereignty of India or strike terror among the people or any
section of the people including
1. Denial of service to
resources used by the nation.
2. Attempting to penetrate or
access a computer resource without authorization or exceeding authorized
access.
3. Introducing or causing to
be introduced any computer contaminant likely to cause death or injury to
persons or damage or destruction of property or to impair or knowingly likely
to cause impairment or interruption of supplies or services essential to
community life or knowingly or intentionally without authorization or exceeding
authorized access penetrates or accesses a computer resource and, by doing so,
gains access to information, data or computer database that is restricted for
reasons of national security or foreign relations, or to any restricted
information, data or computer database with reason to believe that the
information, data or computer database so obtained may be used to cause or may
cause injury to the interests of the sovereignty and integrity of India,
national security, friendly relations with foreign states, public order,
decency or morals or in connection with contempt of court, defamation or by
inciting the fence, or in favor of me of any foreign nation, group of
individuals or otherwise, commits an offense of cyber terrorism. These acts
were punishable by imprisonment, which could extend to life. In India, cyber
terrorism has emerged as a new phenomenon.The probe against the 2008 serial blasts in cities like
Ahmedabad, Delhi, Jaipur, and Bangalore found considerable evidence of cyber
terrorism; the 2008 attack on Mumbai Taj Hotel, which is
now famously known as 26/11 and the 2010 blast in the holy city of Varanasi
also had trails of cyber terrorism.
·
Child Pornography– Newly introduced Section 67 B attempts to address the
issue of child pornography. Through this section it has made the publication or
transmission of material in any electronic form which depicts children engaged
in sexually explicit act or conduct, anyone who creates, facilitates or records
these acts and images punishable with imprisonment of five years and fine which
may extend up to ten lakhs in first offence and seven years and fine of ten
lakhs on subsequent offence.
·
Intermediary’s liability- Intermediaries have been made liable to retain any
information in the format that Central government prescribes. (Sections 67C)
and are punishable for the violation with a punishment of imprisonment of 3
years and fine In case of any act which affects national sovereignty
intermediaries are liable to seven years (Section 69(4)).
·
Surveillance, Interception, and Monitoring– In order to compact cyber terrorism
the government has further armed itself with drastic powers Sections 69 of IT
Act 2000 amended enhances the scope from the 2000 version to include
interception and monitoring. This has been a major change in the section which
also empowers the government not only to monitor any traffic but also block any
site through an intermediary. Any failure on part of the intermediary is
punishable by seven years and also fine (Section 69(4)). Earlier the provision
did not mention any fine.
·
Cognizance of cases– All cases which entail a punishment of three years or more have been
made cognizable. Offenses with three years of punishment have also been made
bailable (Section 77B). This change though welcome will make sure most cases
falling under the IT Act will be available with the sole exception of Cyber
terrorism cases, cases related to child pornography and violations by
intermediaries in some cases.
·
Investigation of Offences-One major change has been the inclusion of Inspectors as
investigating officers for offenses defined in this act (Section 78).
Earlier these investigations were being done only by an officer of the rank of
Deputy Superintendent of Police which was a serious limitation mainly because a
number of officers in this rank is limited. With this change, one can look
forward to more cases being filed and investigated by police.
4.
Hypothesis
The provision
of information technology Act 2000 section 66a is unconstitutional.
The provision
of section 66a of information technology act 2000 is not unconstitutional
What Is
Section 66a Of Infromation Technology Act 2000.
Punishment for sending offensive messages
through communication service, etc. Any person who sends, by means of a
computer resource or a communication device,— (a) Any information that is
grossly offensive or has menacing character; or (b) Any information which he
knows to be false, but for the purpose of causing annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or
ill will, persistently by making use of such computer resource or a
communication device, (c) Any electronic mail or electronic mail message for
the purpose of causing annoyance or inconvenience or to deceive or to mislead
the addressee or recipient about the origin of such messages, Shall be
punishable with imprisonment for a term which may extend to three years and
with fine.
EXPLANATION — For the reason for this area, terms
"electronic mail" and "electronic mail message" implies a
message or data made or transmitted or gotten on a PC, PC framework, PC asset
or specialized gadget incorporating connections in , pictures, sound, video and
some other electronic record, which might be transmitted with the message.
Importance:
The UN General Assembly had on January 30,
1997 passed a Resolution embracing the Model Law on Electronic Commerce drafted
by the UN Commission on International Trade Law. The determination prescribed
that all member states should create or update their laws in perspective of the
requirement for consistency of the law relevant to contrasting options to paper
based strategies for correspondence and capacity of data. It was to offer
impact to the this UN determination that India's Parliament created the
Information Technology Act, 2000 to advance effective conveyance of taxpayer
supported organizations by methods for dependable electronic records. A
dubiously worded area It is not a straightforward instance of abuse of law.
Actually, the law experiences the bad habit of non-use of brain. An exposed
perusing of the segment uncovers how ambiguously worded it is. It endorses a most
extreme discipline of a jail term of 3 years with fine and to send data that is
"terribly hostile" or has "threatening character" and for
sending messages causing "disturbance or "burden" to the
beneficiary. What is much more dreadful is that none of these articulations has
been characterized in the law.
This conflicts with the cardinal rule
of criminal law, which requires every single term or articulation utilized as a
part of a law to be all around characterized, leaving no degree for error and
conceivable abuse. It was for this very reason in the whole Indian Penal Code,
Lord Macaulay utilized various clarifications and delineations to clear up
corrective arrangements and characterized all articulations utilized as a part
of the IPC. Section 66A: Do not send offensive messages Section 66A of the
Information Technology (Amendment) Act, 2008 prohibits the sending of offensive
messages though a communication device (i.e. through an online medium). The
types of information this covers are offensive messages of a menacing
character, or a message that the sender knows to be false but is sent for the
purpose of ?causing annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred, or ill will.‘ If you‘re booked
under Section 66A, you could face up to 3 years of imprisonment along with a
fine. Sections 67 and 67A: No nudity, please. The large amounts of
obscene‘material that circulate on the Internet have long attracted comment in
India. Not surprsingly, then, in the same way as obscenity is prohobited
offline in the country, so it is online as well. The most important tools to
curtail it are sections 67 and 67A of the IT Act, prohibiting obscene and
sexually explicit material respectively. Section 69A and the Blocking Rules:
Allowing the Government to block content under certain circumstances Section
69A of the IT (Amendment) Act, 2008, allows the Central Government to block
content where it believes that this content threatens the security of the
State; the sovereignty, integrity or defence of India; friendly relations with
foreign States; public order; or to prevent incitement for the commission of a
cognisable offence relating to any of the above. A set of procedures and
safeguards to which the Government has to adhere when doing so have been laid
down in what have become known as the Blocking Rules. Section 79 and the IT
Rules: Privatising censorship in India Section 79 of the Information Technology
(Amendment) Act, 2008 regulates the liability of a wide range of intermediaries
in India. The section came in the limelight mostly because of the infamous
Intermediary Guidelines Rules, or IT Rules, which were made under it. The IT
Rules constitute an important and worrying move towards the privatisation of
censorship in India. Discuss Section 66A of IT Act, with reference to its
alleged violation of Article 19 of the Constitution. Article 19 of the
Constitution gives us freedom of speech and expression. However, the same
article restricts this freedom on grounds of: Defamation, incitement to crime,
contempt of court public order decency morality friendly relations with
neighbors ,national security Sec 66A However, Section 66A which restricts
freedom of speech and expression over
internet and other electronic mediums, prima facie goes much beyond the
restrictions mentioned.For example, it criminalizes sending messages which
?cause annoyance or ?hurt sentiments or are ?knowing wrong or even
?blasphemous!The irony is that many of these actions are perfectly valid over
other forms of media like print. So while an article may be entirely legal when
a newspaper prints it, if one sends it over internet one can be arrested! One
also wonders how blasphemy can be a crime in a plural and secular country like
India!
Section 66A must comply with the
fundamental rights chapter of the Indian Constitution. Article 19(1)(a)
guarantees the freedom of speech and expression, and Article 19(2) permits
reasonable restrictions in the interests of – inter alia – ?public order,
decency or morality. Presumably, the only way in which Section 66A can be
justified is by showing that it falls within the category of ?public order or
of ?morality. The precedent of the Supreme Court, however, has interpreted
Article 19(2) in far narrower terms than the ones that Section 66A uses. The
Court has held that ?public order may only be invoked if there is a direct and
immediate relation between the offending speech and a public order disturbance
– such as, for instance, a speaker making an incendiary speech to an excited
mob, advocating imminent violence (the Court has colloquially stated the
requirement to be a ?spark in a powder keg). Similarly, while the Court has
never precisely defined what ?morality – for the purposes of Article 19(2) –
means, the term has been invoked where (arguably) pornographic materials are
concerned – and never simply because speech has ?offended or ?menaced someone.
Indeed, the rhetoric of the Court has consistently rejected the proposition
that the government can prohibit individuals from offending one another.
This raises two constitutional
problems with Section 66A: the problems of over breadth and vagueness. Both
doctrines have been developed to their fullest in American free speech law, but
the underlying principles are universal. A statute is overbroad when it
potentially includes within its prohibitions both speech that it is entitled to
prohibit, and speech that it is not. In, a Georgia statute criminalized the use
of ?opprobrious words or abusive language. In defending the statute, the State
of Georgia argued that its Courts had read it narrowly, limiting its
application to ?fighting words – i.e., words that by their very nature tended
to incite an imminent breach of the peace, something that was indisputably
within the power of the State to prohibit. The Supreme Court rejected the
argument and invalidated the statute. It found that the words ?opprobrious and
?abusive had greater reach than ?fighting words. Thus, since the statute left
?wide open the
standard of responsibility, so that
it [was] easily susceptible to improper application, the Court struck it down.
A statute is vague when persons of ?ordinary intelligence… have no reasonable
opportunity to know what is prohibited. The American Supreme Court noted that
?a vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application. There are, therefore, a
number of problems with vague laws: one of the fundamental purposes of law is
to allow citizens to plan their affairs with a degree of certainty. Vagueness
in legislation prevents that. And equally importantly, vague laws leave a wide
scope of implementing power with non-elected bodies, such as the police –
leading to the fear of arbitrary application.
Few
Instances When Section 66A Brought Into Picture
1. Jadavpur University professor Ambikesh
Mahapatra has been arrested for sharing infromation about Trinamool Congress
chief Mamata Banerjee on Facebook in 2012. 2. In 2012 Activist Aseem Trivedi
was also arrested for drawing cartoons of Parliament and the Indian
Constitution to depict their ineffectiveness. He was arrested on charges of
sedition leading to huge protests.
3. In 2012, three youngsters from
Kishtwar district - Kishori Sharma, Bansi Lal and Moti Lal Sharma – has been
arrested and imprisoned for 40 days after they were tagged in an allegedly
blasphemous video posted on Facebook and also One of them had commented on that
post. They were charged with desecrating religious symbols among people and
inciting communal hatred by using information technology.
4 In October, 2012: A Puducherry
businessman Ravi Srinivasan was arrested for allegedly posting 'offensive'
messages on Twitter about Congress leader P Chidambaram's son Karti
Chidambaram.
One Of The
Leading Case Were Section 66A Said To Be Uncontitutional In Nature
SHREYA SINGHAL V. UNION OF INDIA
FACTS: Mumbai police captured two young
ladies Shaheen Dhada and Rinu Srinivasan in 2012 for conveying their alarm at a
bandh gotten the wake of Shiv Sena supervisor Bal Thackery's destruction. The
young ladies posted their comments on the Facebook. The captured young ladies
were released later on and it was chosen to drop the criminal bodies of
evidence against them yet the captures of them pulled in the nation over
dissent. It was assumed that the police have mishandled its power by conjuring
Section 66A in the meantime it is a break of principal right of discourse and
articulation. The offense under section 66A of IT act being cognizable, law
requirement organizations have expert to capture or examine without warrants,
in light of charges brought under the data innovation act. The result of this
was numerous very acclaimed captures of individuals all through the nation for
posting their perspectives and assessments while government called them
'questionable " however more regularly these were disagreeing political
suppositions. In January 2013, the focal government had turned out with a
consultative under which no individual can't be captured without the police
having earlier endorsement of examiner general of police or whatever other
senior authority to him/her. The Incomparable Court called the whole appeal to
identified with sacred legitimacy of data innovation act or any area inside it
under single PIL
FACTS IN ISSUE A writ request of was filed in
public interest under 32 of the Constitution of India by petioner, looking to
announces Section 66A,69A and section 79 as unlawful on the reality that the
style utilized as a part of Section 66A,69A and section 79 of the IT Act, 2000
is so wide and obscure, in the meantime unequipped for being judged on target
measures, that it is defenseless to wanton manhandle and consequently falls
foul of Article 14, 19 (1)(a) and 21 of the Constitution. Solicitor further
contends that the terms, threatening, hostile, disturbance, burden, check,
threat, and affront have not been characterized in the General Clauses Act, IT
Act or some other law thus they are defenseless to wanton mishandle. Candidate
further encouraged that the arrangement sets out a nonsensical characterization
between residents on one hand and then again citizens as the flexibility for
the most part ensured under Article 19(1)(a) to residents including general
media now is restrained similarly as citizens are concerned. On the off chance
that citizens make remarks which could be made by and large by natives, they
can be captured. This is the means by which Article 14 is been disregarded by
this arrangement.
JUDGEMENT: In a 123-page long judgment,
which widely examined Indian, English and US law on free discourse, the Supreme
Court struck down Section 66-An of the Information Technology Act, perused down
Section 79 of the Information Technology Act and the related principles, and
avowed the defendability of Section 69A of the Act. Representing the Court,
Justice Nariman talked about the different norms which are appropriate to
declare when limitations on discourse can be regarded sensible, under Article
19(2) of the Indian Constitution. The Court held that Section 66-A was
ambiguous and over-expansive, and in this way fell foul of Article 19(1)(a),
since the statute was not barely customized to particular occasions of
discourse which it tried to check. Significantly, the Court additionally
considered the 'chilling impact' on discourse caused by ambiguous and
over-expansive statutory dialect as a method of reasoning for striking down the
arrangement. Further, the Court held that 'general society arrange' confinement
under Article 19(2) of the Constitution would not have any significant bearing
to instances of 'support', but rather just to 'prompting', particularly affectation
which has a proximate connection to open issue. Of the test on the grounds
under Article 14 of the Constitution of India, the Court held that "we
can't concur with guide for the candidates that there is no clear differentia
between the medium of print, communicate and genuine live discourse rather than
discourse on the web. The understandable differentia is clear – the web gives
any individual a stage which requires next to no or no instalment through which
to air his perspectives." The Supreme Court additionally perused down
Section 79 and Rule 3(4) of the Intermediaries Guidelines, under the Act, which
manages the obligation of go-betweens, generally those which have content and
give online administrations. While the Section itself utilizes the term
'accepting genuine learning', of the unlawful material as the standard at which
the go-between is obligated for evacuating content, the Court held that it must
be perused to mean information got that a Court arrange has been passed
requesting that it bring down the encroaching material. At last, the Court
likewise maintained the mystery blocking process under Section 69A of the Act,
by which the Government can bring down substance from the Internet, holding
that it didn't experience the ill effects of the illnesses in Section 66A or
Section 79, and is a barely drawn arrangement with sufficient shields.
5. Shortcomings of the Act
While the Act has been successful in
setting down the framework of regulations in Cyber Space and addresses a few
pressing concerns of misuse of technology, it suffers from a few serious
lacunae that have not been discussed. Many experts, such as Supreme court
lawyer and cyber rights activist, Pawan Duggal, argues that the Act is
toothless legislation[v] which has not been completely
effective in issuing penalties or sanctions against perpetrators who choose to
misuse the reach of cyberspace. There are certain areas of cyber laws which
need attention
Spamming
Spam may be defined as Unsolicited
Bulk E-mail. Initially, it was viewed as a mere nuisance but now it is posing
major economic problems. In the absence of any adequate technical protection,
stringent legislation is required to deal with the problem of spam. The
Information Technology Act does not discuss the issue of spamming at all. The
USA and the European Union have enacted anti-spam legislation. In fact,
Australia has very stringent spam laws under which the spammers may be fined up
to 1.1 million dollars per day.
Phishing
Phishing is the criminally fraudulent
process of attempting to acquire sensitive information such as usernames,
passwords, and credit card details, by masquerading as a trustworthy entity in
electronic communication. Phishing is typically carried out by e-mail and often
directs users to enter personal and financial details at a website. Phishing is
an example of a social engineering technique used to fool users.
There is no law against phishing in
the Information Technology Act through the Indian Penal Code talks about
cheating, it is not sufficient to check the activity of phishing. Recently a
phishing attack was noticed on the customers of State Bank of India in which a
clone of the SBI website was used. What is worse is that even SBI has not
alerted its customers. So the need of the hour is legislation which prohibits
the activity of phishing in India.
Data Protection in Internet Banking
Data protection laws primarily aim to
safeguard the interest of the individual whose data is handled and processed by
others. Internet Banking involves not just the banks and their customers, but
numerous third parties too. Information held by banks about their customers,
their transactions etc. changes hand several times. It is impossible for the
banks to retain information within their own computer networks. High risks are
involved in preventing leakage or tampering
of data which ask for adequate legal
and technical protection. India has no law on data protection leave alone a law
governing an area as specific as protection of data in electronic banking.
The Information Technology Act talks
about unauthorized access but it does not talk about maintaining the integrity
of customer transactions. The act does not lay down any duty upon banks to
protect the details of customers and clients. U.K has a data protection law
which was enacted 10 years back that is in 1998 under which banks or any person
holding sensitive information may be held liable for damages if it fails to
maintain adequate security protection in respect of data. In India, a bank’s
liability would arise out of contract as there is no statute on the point.
Privacy Protection
Privacy and data protection are
important issues that need to be addressed today as information technology
assumes greater importance in personal, professional and commercial spheres.
The European Union and the United States have strict policies relating to
privacy and protection of personal data when such data or information is being
transferred out of their domain.
It is also pertinent to note here,
that the absence of a specific privacy law in India has resulted in a loss of
substantial foreign investment and other business opportunities. This
deficiency has also served as an obstacle to the real growth of electronic
commerce. Thus, a statute addressing various issues related to privacy is of
utmost importance today, if not an entire act can be brought into force, then at
least specific provisions relating to privacy and data protection be
incorporated into the Act.
Identity Theft
Identity theft worldwide is a growing
problem. IT act 2000 fails to address this issue. This is a major drawback
considering the fact that the majority of outsourcing work that India does
requires the companies in India to ensure there is no identity theft. In fact,
identity theft was one of the main reasons for a major hue and cry over an
incident involving personal information of UK customers and an Indian web
marketing company.
Cyber War
The issue of Cyber War has also not
been discussed in the Act. International law is an important part of any legal
regime and due provisions need to be made in congruence with the international
framework of laws. India, in recent times, has faced a number of cyber-attacks
from China and the Chinese hackers have overridden the Firewalls on Indian
databases like a Mongol army on the rampage.
In the 26/11 attacks, a number of classified
data were provided as intel to the perpetrators from neighboring nations
conspiring against India. There are no provisions in the Act to make such
perpetrators liable for their actions.
In an interview Mr.Duggal stressed
the need for overhauling the cybersecurity legal regime in the country, saying,
“A historical mistake was made when the IT (Amendment) Act, 2008, made almost
all cyber crimes, barring a couple, bailable offenses. The focus is more on
enhancing the quantum of civil liability and reducing the quantum of
punishment, which explains the reason why the number of cybercrime convictions
in the country is in single digits.”
The most rampant cyber “misuse” that
an individual makes nowadays is downloading movies through peer-to-peer sharing
networks. This is a rampant violation of copyright laws but the volume of
perpetrators is so large that an effective measure cannot be taken to restrict
it. In order to curb the growing menace of cyber-crimes government through
measures often block access to websites. This has been argued to be a draconian
measure and a violation of freedom of speech and expression under Article
19(1)(a).
Recently in the case of the Tamil
movie, “Three”, the Madras High Court passed an order to prevent users from
accessing torrent websites to dissuade them from downloading copies of the
movie from the internet. While it may be a reasonable measure for just the
singular movie, blocking access to the entire website is an unnecessarily
strict measure. It is said that little knowledge can be a dangerous thing, which
is exactly the case in the case of the government. It knows little and tries to
implement measures based on such incomplete knowledge. Users are getting more
proficient and sophisticated every day and know how to bypass security measures
while the legislation is still stuck in the Stone Age of cyberspace.
Copyright and trademark violations do
occur on the net but Copyright Act 1976, or Trade Mark Act 1994 is silent on
that which specifically deals with the issue. Therefore have no enforcement
machinery to ensure the protection of domain names on the net. Transmission of
e-cash and transactions online are not given protection under the Negotiable
Instrument Act, 1881. Online privacy is not protected only Section 43 (penalty
for damage to computer or computer system) and 72 (Breach of confidentiality or
privacy) talks about it in some extent but doesn’t hinder the violations caused
in the cyberspace.
Even the Internet Service Providers
(ISP) who transmits some third-party information without human intervention is
not made liable under the Information Technology Act, 2000. One can easily take
shelter under the exemption clause if he proves that it was committed without
his knowledge or he exercised due diligence to prevent the offense.
It’s hard to prove the commission of
the offense as the terms “due diligence” and “lack of knowledge” have not been
defined anywhere in the Act. And unfortunately, the Act doesn’t mention how the
extraterritoriality would be enforced. This aspect is completely ignored by the
Act, where it had come into existence to look into cybercrime which is on the
face of it an international problem with no territorial boundaries.
Suggestions For Improvement
·
The
IT (Amendment) Act, 2008, reduced the quantum of punishment for a majority of
cyber-crimes. This needs to be rectified.
·
The
majority of cyber-crimes need to be made non-bail able offenses.
·
The
IT Act does not cover a majority of crimes committed through mobiles. This
needs to be rectified.
·
A
comprehensive data protection regime needs to be incorporated in the law to
make it more effective.
·
Detailed
legal regime needed to protect the privacy of individuals and institutions.
·
Cyber
war as an offense needs to be covered under the IT Act.
·
Parts
of Section 66A of the IT Act are beyond the reasonable restrictions on freedom
of speech and expression under the Constitution of India. These need to be
removed to make the provisions legally sustainable.
6. Why Is
Section 66A Necessary?
To understand the necessity of
Section 66A it is essential that we understand the difference in action that
would be taken as a result of invoking the sections as an alternative to
Section 66A. Prior to the information technology era, the freedom of speech was
misused at public gathering by giving controversial speeches. So the IPC was
formulated to tackle such situations of mass gathering turning violent.
Naturally, the action suggested in the IPC is not swift. Today, due to the far
and easy reach of the technology the damage is already done by the time actions
suggested in the IPC are taken.
Anomalies aside, this Section proved
to be a useful remedy in tackling situations of sensitive nature, such as those
concerning religious and communal sentiments.
For example, the episode of North-Eastern
students from Bangalore fleeing the state of Karnataka after videos and
messages inciting violence against them surfaced on whatsapp and other forms of
social media in Bangalore. Police authorities took the recourse of Section 66A
to avoid spreading of rumors caused by inflammatory messages and videos
circulated to incite violence against a particular community. Section 66A
provided an opportunity for genuine victims of cyber harassment to obtain
immediate relief against content that may be insulting or injurious in nature,
abrogation of which has now made the police authorities toothless in dealing
with the growing menace of cyber bullying. We need to understand that section
66A also contained legal recourse against a number of other cybercrimes such as
stalking, bullying, threatening through SMS and email, phishing and spamming,
etc. Though other sections of the IT Act or IPC may be invoked, the specific
nature of section 66A is hard to find. Moreover the other acts need not ensure
swift action which is generally the necessity in these cases pertaining to use
of the internet. The more the time taken to remove the derogatory, defamatory
or outrageous content, more is the damage done. Section 66A addressed the
offenses such as cyber bullying and cyber stalking as well as ‘spam’ which
could not be dealt effectively under any Section of the IPC. One of the most
important aspect of this section is that it explicitly covers bullying. The
cases of suicide after obscene pics being uploaded to social networking sites,
fake accounts being created to defame someone, cyber stalking, cyber bullying
posing as another person to send malicious messages etc. have gained
prominence. All these cases come under the term cyberbullying. The number of
such cases being registered is on the rise. An online survey by McAfee reveals
some very disturbing facts. According to this survey, 50% of Indian children
between 8 and 17 years have been bullied online i.e. of every 10 Indian
children, more than 50% are bullied online. A surveyby Microsoft shows how India
leads the world in different metrics of cyber bullying. Cyber bullying has led
to depression in some of the cases. A more disturbing outcome of the survey was
that India comes third in the world as far as cyber bullying is concerned.
Section 66A could have proved effective in such cases. Awareness of the
existence of such laws is also important. It can be agreed that even in absence
of Section 66A, the criminals won’t be getting away with any crime. They would
be punished for their activities. However the strictness and swiftness in
serving the justice would lack in absence of Section 66A
7.
Conclusion
No law is perfect in nature and can
be exploited to one’s benefit. The mere possibility of abuse of any law
shouldn’t be the ground of its removal. While framing a law the legislature
keeps the best interest of its citizen in its mind. It doesn’t make a law just
so that is misused by the authorities or the common man. Even the Section 498A
has been subject to gross misuse. But the petition for striking it down cannot
be taken into consideration because the intention of the legislature was to
ensure no women is subject to domestic violence due to any reason whatsoever.
Over a period of time the implementation of Section 498A has improved courtesy
of both the judiciary and the government. However, it wasn’t challenged for
unconstitutionality. Same is the case with Section 66A. One of the flaw in the
section was the discretion of the police which was often misused due to lack of
proper guidelines in the section. The court could have laid down detailed
guidelines in regard to the arrests made by police authorities to ensure
effective application of the law as it was done by the court for Section 498A.
Normally, it is expected that the Courts take into account the legislative
intent and read the meaning of a provision accordingly. This is how
jurisprudence is developed and the law is able to adjust to changing times
without any major amendments. When the provisions are vague or subjective, it
is the duty of the judiciary to lay down the principles to determine if an
action contains the element of offence or not. Dismissing the provision has led
to lack of safety in the cyber world. No doubt that the Section 66A had become
a monster. But sincerely, there is a need of unambiguous Section 66A. A newly
framed and well defined Section 66A would really help in fighting horrific
crimes like cyber bullying and harassment. It is the responsibility of both the
judiciary and the government that this need is taken care of to protect the
citizen from heinous crimes.
Reference
1.
https://cis-india.org/internet-governance/resources/section-66A-informationtechnology-act
2.
https://www.livemint.com/Politics/qjqRU6mS4NZWUvNZZbT5eP/Section-66A-ofIT-Act-2000-What-has-changed-two-yearson.html?facet=amp&utm_source=googleamp&utm_medium=referral&utm_campaign=g
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3.
http://www.dnaindia.com/india/report-with-section-66A-of-information-technologyact-gone-stronger-law-on-cards-2534756/amp
4.
https://blog.ipleaders.in/66-a-it-act/amp/
5.
http://www.thehindu.com/news/national/supreme-court-strikes-down-section-66-aof-the-it-act-finds-it-unconstitutional/article10740659.ece/amp/
6.
https://www.ndtv.com/india-news/freedom-of-speech-online-section-66-a-is-struckdown-by-supreme-court-749104?amp=1&akamai-rum=off
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https://indiancaselaws.wordpress.com/2015/03/28/supreme-court-strikes-down-s66a-of-information-technology-act-as-unconstitutional/amp/
8.
https://yourstory.com/2015/03/supreme-court-sec66a-it-act-ruling/amp
9. Shreya
Singhal v. Union of India
10.
https://www.quora.com/Does-Section-66-A-of-the-IT-Act-violate-Article-19-1A-ofthe-Constitution-of-India
11.
https://www.firstpost.com/india/good-riddance-to-sec-66a-nehrus-article-192-curbson-free-speech-should-be-next-2170157.html/amp
12. M.C. Mehta
v. Union of India Citation(s): 1987 SCR (1) 819
13. Introduction
to information technology, v. Rajaraman ,2004
14. Ethics in
information technology, George Walter Reynolds ,2003
15. Managing information technology,
Francisco, Castillo, 2016
Article Information
Critical Appraisal Of Section 66 Of Information Technology Act 2000 (By-Adv. Jyoti Akshay Murhe)
Authors: Adv. Jyoti Akshay Murhe
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/03
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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