SC to govt: How did you arrest people under scrapped Sec 66 A of IT Act?

'Officials concerned will be arrested if the apex court order of March 24, 2015 scrapping the provision of the IT Act is enforced', said an SC bench.

The Supreme Court on Monday sought the Centre's response on a plea alleging prosecutions even after the apex court scrapped Section 66 A of the IT Act under which a person could be arrested for posting offensive content on websites.

A bench headed by Justice R F Nariman said concerned officials will be arrested and sent to jail if the apex court order of March 24, 2015 scrapping the provision of the IT Act is violated.

Appearing for the NGO PUCL, advocate Sanjay Parikh said more than 22 people have been arrested under the provision of the IT Act scrapped by the top court in 2015.

Terming liberty of thought and expression cardinal, a bench of Justices J Chelameswar and R.F, Nariman said in 2015, The public's right to know is directly affected by Section 66A of the Information Technology Act.

The first PIL on the issue was filed in 2012 by law student Shreya Singhal who sought an amendment in Section 66A of the Act after two girls Shaheen Dhada and Rinu Shrinivasan were arrested in Palghar in Maharashtra's Thane district. While one posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death, the other liked' it.

In the wake of numerous complaints of harassment and arrests, the apex court on May 16, 2013 came out with an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like an IG or DCP.

Business Standard

Unclear understanding of 'unlawful content' may end up curbing free speech

When the government decides to systematically intrude upon the private lives of its citizens, the line between the personal and the political no longer remains clear.

The information technology ministry this week reportedly proposed an amendment to rules under section 79 of the Information Technology Act.

The amendment would necessitate intermediaries under the IT Act to proactively identify and take action against unlawful content or information online.

This move, unsurprisingly, follows a notice issued to WhatsApp in July 2018, warning it against ‘abetting’ fake news as a ‘mute spectator’ through its end-to-end encryption technology, which could potentially invite legal action.

The Information Technology [Intermediaries Guidelines (Amendment)] Rules 2018 will insert a new rule 3(5), introducing traceability on online platforms, breaking this encryption in order to retain information including messages on WhatsApp.

The proposed amendment will also require intermediaries to coordinate and respond to government queries within 72 hours in case it is directed through an appointed nodal authority in order to ensure compliance with the law.

What to regulate – the fake news conundrum

Amid concerns raised by the judiciary and civil society about fake news on social media, the government has intervened to trace the origins of such content which deliberate misleads or misinforms public opinion.

The proposed amendment, however, falls short on several counts.

Without a clear understanding of what speech is ‘unlawful’, the amendment enables agencies to target groups and individuals based on mere suspicion and without confirming if the content is actually illegal. While Article 19(2) lays down reasonable restrictions on free speech, the understanding of fake news within free speech jurisprudence remains murky.

If the proposed purpose is to weed out fake news, it is imperative to first attempt to define or characterise it, rather than to preemptively censor speech. The large-scale implementation of this decision may lead to self-censorship and the muzzling of dissent, completely antithetical to democratic practice.

The proposed amendment, in this regard, seems to put the cart before the horse.

Who should regulate online content?

Beyond inquiring into what content the government intends to regulate, one needs to contemplate – who should regulate harmful content? Before the proposed amendment is given effect, there is a need to determine whether permitting government agencies to examine content is more desirable than self-regulation by intermediaries themselves.

Business Standard