It is a sheer coincidence that a few individuals from India were charged for contempt of court for their expression on judiciary in social media while Twitter exercised its right to hid the views of a politician in connection with racial riots all over U.S.A. a scene not seen for a very long time. Yes, it is better to study Information Technology (Intermediaries Guidelines (Amendment) Rules), 2018 in India with Section 230 of Communications Decency Act, 47 U.S.C #230 from USA both dealing extensively with freedom of expression on internet, a hotly debated social media issue for a long time.
Let us analyze the basic rules of the functioning of internet for anyone who uses it.
To start with, Indian situation.
In India, Information Technology Act, 2000 with further fortifications in 2008, and Intermediary Guidelines (Amendment) Rules, 2018 govern the rulings on internet, its usage, due diligence to be observed by intermediary etc.
Let us study the guidelines first.
Communication link is explained as a connection between a hypertext or geographical element(button, drawing or image) and one or more items in the same or different electronic document wherein upon clicking on a hyperlinked items , the user is automatically transferred to the other end of the hyperlink which could be another document or other website etc.
Cyber security means any real or suspected adverse event in relation to cyber security that deliberately violates applicable security policy resulting in unauthorized access.
The intermediary like face book, twitter, google etc. shall definitely observe the following due diligence while discharging its duties.
It shall publish its rules and regulations for usage by any person and the policies would inform the users not to host, display or upload any of the following activities:
- Information that belongs to another person
- Harm minors in any way
- Violate any laws that are in vogue on that date
- Infringe any patent, trade mark, copyright etc.
- Mislead any addressee about the origin of such messages.
- Impersonate any other person.
- Include in his message any software virus, files or programs to destroy or limit the functionality of any computer.
- Neither threaten the unity, defense, or sovereignty of the nation, public order, or incitement to the commission of any cognizable offence nor threaten public health or safety.
- The intermediary with more than 50 lakh users in India or is in this list circulated by Government of India shall be a company incorporated under Companies act 1956 or 2013, have a permanent registered office in India and appoint a nodal person of contact and alternate senior designated functionary, for 24*7 coordination with law enforcement agencies and officers to comply with their orders, or instructions .
- In case an order is received from the government or a court, with regard to any unlawful acts committed through its usage, remove or disable access to that unlawful acts within 24 hours and also retain the evidence for 180 days or more as per the court orders.
- The intermediary is expected to publish the name of a grievance officer to whom the affected party could lodge a complaint.
It is obvious from the above that the court could have issued a legal notice to the list of 50 or more persons against whom the contempt of court order was issued. Yes, the intermediary would automatically get full information for taking necessary action as per the rules and regulations applicable on that day.
Let us analyze any other case as under rather than an actual case which is sub judice.
One person writes in face book about the character of any other person, say any police official, an executive of a public sector or private sector undertaking alleging corruption or scandalous behavior of that person. Most of the registered organizations have a policy to deal with corruption of the said organizations. Let us say, a public sector bank. Any customer who has a genuine grievance can lodge a complain officially to Vigilance officer in case of corruption or higher official in case of other complaint. It has, however, become normal to write defamatory or obscene matters in public domain without any reason or rhyme inviting action under the clause 8 of above guidelines. Sad but true, young men/women or even highly educated professionals due to sheer ignorance express their so- called free opinion fully transgressing the legal limits of freedom of expression guaranteed by the laws of the country. Stupid comments/racial abuses or obscene expression against individuals invite hostile legal reactions from those aggrieved persons.
Before these guidelines, The Information Technology Act, 2000 came into existence.
This act came into operation by basing itself on The Indian Penal Code, 1860, The Indian Evidence Act, 1872, The Bankers Evidence Act, 1891 and The Reserve Bank of India Act, 1934 etc.
Let me give you some link to have a fresh look at the act.
https://indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf
One would like to know under chapter 11, the descriptions of various offences and relevant punishments which would open the minds of youngsters before venturing to commit the offences.
CHAPTER XI OFFENCES 65. Tampering with computer source documents.
66. Computer related offences.
66A. Punishment for sending offensive messages through communication service, etc.(*)
66B. Punishment for dishonestly receiving stolen computer resource or communication device.
66C. Punishment for identity theft.
66D. Punishment for cheating by personation by using computer resource.
66E. Punishment for violation of privacy.
66F. Punishment for cyber terrorism.
67. Punishment for publishing or transmitting obscene material in electronic form.
67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.
67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.
67C. Preservation and retention of information by intermediaries.
68. Power of Controller to give directions.
69. Power to issue directions for interception or monitoring or decryption of any information through any computer resource.
69A. Power to issue directions for blocking for public access of any information through any computer resource.
69B. Power to authorize to monitor and collect traffic data or information through any computer
Section 66A* was struck off as unconstitutional by supreme court in the following famous case.
https://indiankanoon.org/doc/110813550/
(Shreya Singhal vs U.O.I on 24 March, 2015
Bench: J. Chelameswar, Rohinton Fali Nariman), Supreme Court.
It is of interest to know that the penalty includes imprisonment up to 3 years or and fine up to Rs 5 lakhs as the maximum. What a deterrent punishment for committing the offences under the laws?
Let us now focus our attention to Section 230 of Communications Decency Act, 47 U.S.C. &230, U.S.A.
The study of above law was prompted by a news item that some senior politician in U.S.A. is contemplating to order a review of above federal law which has so far protected internet companies in exercising restraint in dealing with news items of violent in nature. Let me reproduce the above act for our information before undertaking any further discussion.
https://www.law.cornell.edu/uscode/text/47/230
Actual statute has been reproduced from Cornell Law School web site.
It is interesting to understand the simple language used in conveying the information. I highly appreciate its usage and simplicity in conveying a very important message, at that time when internet started showing its importance in 1996.
- Salient features of section 230 are worth remembering:
- Internet and other interactive computer services have played an extraordinary advance in providing American individuals a rare opportunity of educational and other relevant information.
- A true diversity of political discourse, unique opportunities for cultural exchanges and avenues for intellectual growth have emerged out of this development of internet. This has enabled the general public to rely upon internet for all types of news, entertainment or educational pursuit for intellectual growth.
- The Congress notes with pride that internet and other interactive computer services have enabled a free and fair market for individuals, industries, families, educational institutions and others for information. The general policy would like to enable parents to guide their children in their application of this technology, enforce vigorously federal criminal laws and punish against trafficking in obscenity, stalking and other types of harassment.
- Due protection will be provided as ‘Good Samaritan” blocking of offensive material.
- Civil liability: No provider or user of interactive computer service provider will be held responsible if they restrict accessibility of obscene, lewd, lascivious or violent material and no action will be taken against them. They may inform the parents of facility to allow parental guidance in showing programs to their children.
This law would have no effect on criminal law, intellectual property law etc.
The news item has mentioned that some politician wants to introduce some amendments in above law in restricting the service provider in executing his job of non-provision of such news or informing the violent nature of some news that may be exhibited through their net-work of computer service. In any case, as we saw earlier from the said act, any modification requires appropriate passage of act through Congress which may be an uphill task today in view of forthcoming electoral battles in U.S.A.
Conclusion
Extensive coverage has been given by supreme court in their disposal of the case under Shreya Singhal vs U.O.I on 24 March, 2015 and its judgement is a testament of freedom of speech at its best, both its available opportunity for freedom as well as avoidance as the situation warrants.
Similarly, Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).” This has protected millions of readers, individuals, educational institutions or religious minorities while expressing their view points or other materials that would not offend others but to educate or inform as news item.” You tube” has taken people around the globe at no cost and has popularized even small restaurants around the globe due to their extensive reach. But this has been possible due to appropriate restraint shown by the internet intermediaries who avoided the information forbidden by the laws of the land. Indian or American democracy has survived due to this basic fact.
The purpose of this article is to educate the youngsters or old people to enjoy their freedom with legal restraints imposed on them. I do hope, quoting the relevant rules in India/U.S.A. would enable them to avoid legal penalty for improper activities on internet.
Let us enjoy modern advancements in technology for the goodness of our civilization.
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