Clarification on Section 67 and 67A of Information Technology Act, 2000 (under Information Technology Act, 2000)

Section 67 of Information Technology Act, 2000 (Publishing or transmitting obscene material in electronic form)

Whoever,

Publishes or transmits or causes to be published in the electronic form,

Any material which is lascivious or appeals to the prurient interest or

If its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it,

shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to Rs 10 lakh.

Brief Explanation of Each Word

  • Lascivious: It is something which excites lust in a person;
  • Appeals to: This word here means something which arouses interest in a person;
  • Prurient interest: This word here means which is drawn by lustful thoughts;
  • Effect: This word here means to cause or change or any event;
  • Tend to deprave and Corrupt: This word here means to draw a person towards becoming immoral or bad morally;
  • Persons: This word here means natural persons including men, women, children; it does not include any artificial persons;
  • Published: This word here means any information which is distributed and broadcasted formally by issuing and selling copies of the same for general public;
  • Transmission: This word here means transfer, pass, communicate, a medium for transmitting, signal etc.;
  • Caused to be public: This word here means that to give effect of publishing some information by direct or indirect way. It also includes the publishing the certain information by any internet service provider or website server.

Section 67A of Information Technology Amendment Act (ITAA), 2008 (Punishment for publishing or transmitting of material containing sexually explicit acts)

Whoever,

Publishes or transmits or causes to be published or transmitted in the electronic form, any material which contains sexually explicit act or conduct,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to Rs 10 lakhs and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to Rs 10 lakhs.

Exceptions to Section 67 and 67A

Section 67 and Section 67A does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

  1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science,literature,art,or learning or other objects of general concern; or
  2. which is kept or used bona fide for religious purposes.

Relevant Case Studies

Case (1):

The Oshiwara police registered an FIR against Ajay Hatewar for tweeting defamatory statements against chief minister Devendra Fadnavis and posting a picture of the CM enjoying a vacation with his family in 2011-2012.

He has been booked for defamation and also under Section 67 (A) of the IT Act.

Case (2):

A case is tied in with posting obscene, defamatory and irritating message about a divorced lady in the Yahoo message group. Emails were sent to the divorced lady (Victim) for data by the accused through a false email account opened by him for the sake of harassing the victim. These postings brought about irritating telephone calls to the woman.

In light of the woman’s grumbling, the police arrested the accused. Investigation uncovered that he was a known family companion of the victim and was keen on wedding her. She was hitched to someone else, yet that marriage finished in separate and the accused began to call her again by sending such emails. On her hesitance to wed him he began hassling her through web.

The accused was discovered liable for offences under section 469, 509 Indian Penal code, 1860 and Section 67 of Information Technology, Act 2000.

Deepak Joshi | CA Final Student | E-mail: [email protected]

(This article is compiled by me and any correction and feedback would be greatly appreciated)

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9 Comments

  1. A says:

    Sir a lady in WhatsApp video called me and showed her stripping and uploaded it on Facebook. If I complain will i get punished? Because it clearly reveals my face.

    1. deepakjoshi says:

      You should file a complaint in cyber cell before getting blackmailed or getting bullied, in any manner. You won’t get punished if you file compliant by your own, provided you must not indulged in such activity. And yeah for conceptual clarity, you can also consult a lawyer about the same.

  2. Tanay chakma says:

    One person sent me obscene picture in my whatsApp. I downloaded those but didn’t taken screen shot. Is it enough to Institute a case u/s 67/67a of IT Act?

    1. deepakjoshi says:

      As it is clearly specified in the act that “Publishes or transmits or causes to be published or transmitted in the electronic form” is to be the necessary condition for initiating a proceeding u/s 67/67A. Burden to proof the same is on the petitioner.

  3. Moon Chowdhury says:

    Normally IT act is not known to many FB users.so do’s n don’t are bound to know by user’s.this clearification is helpful.tku. Moon Choudhury from Guwahati

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