IT’S NOW JAIL FOR ONLINE DEFAMATION

 Internet is now a major medium and source of communication world over. What is very interesting is the court’s treatment towards cyber defamation which is different from ordinary defamation.

The centre of Controversy is again, section 66A of the IT Act, 2000. The Bombay High Court in the case of Manoj Oswal v. State ofMaharashtra has opined that the publication of defamatory material in website may come under the ambit of Section 66A based on the facts and circumstances of the case.

This gives rise to a very curious scenario, where an offence under section 500 of the Indian Penal Code, may now be an offence under section 66A of the IT Act, merely because the defamatory material is published in a medium using computers and internet and not otherwise. In order to make a full import of this proposition, the table below shows the comparison between offences under both the Acts.

Offence under Section 500 of IPC	Offence under Section 66A of IT Act, 2000.
Non-Cognizable offence	Cognizable Offence
Bailable	Non-Bailable
Punishment is two years or fine or both	Punishment upto three years with a fine

It has always been in controversy that section 66A of the Information Technology Act is very draconian. If a police consider a facebook post or a tweet 'grossly offensive' or 'of menacing character', or causing 'inconvenience, annoyance, danger, obstruction or insult', they can prosecute the person responsible under Section 66A of the IT Act, which carries a maximum imprisonment of three years. Now, the High Court has interpreted section 66A to include ‘websites’ as well.

The Information Technology Act, 2000 gives no hint of the use of either the word defamation, nor attaches any offence with it. As per section 66A of the IT Act, it is an offence for a person to send by a computer resource or a communication device: Any information that is grossly offensive or has menacing character, Any information which he knows to be false, but yet sends it 'persistently' through such computer resources to cause annoyance, 'inconvenience', danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, 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.

In the present case, the police registered the case under section 66A, as complainant alleged that the petitioner published defamatory material in the petitioner’s website. The petitioner alleged that section 66A was deliberately used by the police purely to convert a non-cognizable offence into a cognizable one. The petitioner further claimed that the offence was only of defamation which comes under section 499 and 500 of IPC. The petitioner claimed that it was gross and blatant misuse of wide and sweeping powers to the police under section 66A and prayed the Hon’ble Court to quash the FIR registered under section 66A.

The argument raised by the petitioner is pertinent, because matter alleged to have been published is also a punishable offence under section 500 of IPC which is the ordinary recourse to been taken by the police. The High Court after due consideration of matter, laid that a “website” amounts to “sending” of information through a computer resource or a communication device.

The Court reasoned that the definition of the term “information” in Section 2(1)(v) is to be read along with the terms ‘communication device, computer, computer network, computer resource, computer system’ in the section, it would be apparent that sending offensive messages through communication service would include computer or website as a part of the computer. The Court highlighted the impact of computer system and the character of IT Act in protecting information transfer through internet. It opined that creation of website by facilitating its access to others does not mean sending any information, would be incorrect and not in tune with the legislative mandate.

The Court defined “website” to mean computing a location connected to the Internet that maintains one or more web pages. The word “send” in the section is interpreted as “cause to go” or “be taken” or “delivered” to a particular destination and hence, in dealing with computer related offences, all forms of “sending” is covered under section 66A of the IT Act.

In the midst of all the technical and legal jargon and interpretation mentioned in the judgment, the basic premise is that the computer network or website can be accessed by anybody. A website is created with the sole intention of incorporating information, thus by creating a website would itself mean sending it. So it would cause “inconvenience” as mentioned in the Act by “sending” defamatory information thus attracting the provisions of section 66A.

Impact:

The law as yet is unclear and this judgment is bound to add to the already growing confusion on the exact scope of section 66A. It is very clear that, the decision gives Section 66A a much wider scope which could result in much misuse and harassment by the police.

Though the High Court did highlight that ‘while interpreting Section 66A to include website, would not necessarily make content of every website punishable and it always depends on the facts and circumstances of the case’, but looking at the nefarious and infamous history of section 66A, it remains to be seen whether it is used for the good, or another tool in the hands of the political-government nexus to harass the common man.

Another import of this judgment is the fact that it makes redundant Sections 499 and 500 of IPC which provides defense and justification for defamation committed. This important tool to defend himself is lost by the accused if he is charged under section 66A. The defense is available only if the website is an intermediary under section 79 of the same Act.

Though it is quite early to see what effects this judgment may have on cyber policing and cyber defamation. One thing is pretty certain, the next time you think about posting your views on a website, the police may be at your doorstep to arrest you for defamation.


Author - Suraj Badrayan