Facebook has already become a platform connecting people using the internet as its medium. Facebook is the largest social media platform and by social media, it means that Facebook is no longer just a social platform for making friends rather it is now also used for sharing news among friends, community. This kind of sharing of news spreads and affects masses quickly and effectively which has been seen time and again in the news, where people are found guilty of offensive posts.
Understanding Section 66A
To know whether a post on Facebook will land a person in jail or not, firstly we need to understand what can lead to such circumstances. In the Information and Technology Act, 2000, Section 66A lays down the provision for punishment upon sending offensive messages via communication service. This section is stated as:
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.
So these provisions basically state that if any information is posted by a person about others which results in harming such person by offending him, criminally intimidating him or defaming such person or any other consequence of the post shall be punished under the said section.
Instances of jail landing
It has been seen that if you as an ordinary person targets a rich and/ or powerful person on any social media then you are likely going to be penalised for it. If one looks on the internet for it one can easily find that there have such multiple instances.
In 2012, there were four such major instances. Ambikesh Mahapatra and Subrata Sengupta of Jadavpur University were put behind bars just for circulating cartoons against the West Bengal Chief Minister. Mayank Mohan Sharma and K V J Rao, members of the Air India cabin crew were arrested for posting jokes on then Prime Minister Manmohan Singh. A businessman from Puducherry was arrested for posting offensive messages which targeted P. Chidambaram’s son. Also, two girls from Mumbai were arrested for posting a question on Facebook. In this last case, the charges were struck down by the court which were under section 295(a) of Indian Penal Code and Section 66A of IT Act.
A Class 11 teenage student has been arrested and jailed for allegedly attributing an “offensive” Facebook comment to Uttar Pradesh Minister Azam Khan. The youth was later released on bail and the SC explained to UP police about the circumstances that led to the arrest.
Shreya Singhal case facts
The case of Shreya Singhal police had arrested two women for allegedly posting offensive and offensive comments on Facebook about the appropriateness of the closure of the city of Mumbai following the death of a political leader. Police have made the arrests under Section 66A of the Information Technology Act 2000, which transmits any person who sends a computer source or communication device, misused the information, or because of its falsity, for the purpose of causing aggravation, discomfort, danger, insult, injury, hatred or ill will. Although police later released the women and dismissed their prosecution, the incident drew substantial media attention and criticism. The women subsequently filed a petition challenging the constitutional validity of Article 66A on the grounds that it violated the right to freedom of expression.
66A now Unconstitutional
In the case of Shreya Singhal v. Union of India, the Supreme Court held the section unconstitutional. In a typical move by the court, the bench of J. Chelameswar and R.F. Nariman, JJ violated Section 66A of the Information Technology Act, 2000 as a whole for violating Article 19 (1) (a) and not being saved under Article 19 (2) of the Constitution. By validating the Division on the touchstone of the clear and present danger test or the tendency to cause public disorder, it has been determined that Section 66A would not succeed as it has no element of any tendency to create public disorder which should not be. an essential ingredient of the offense it causes.
The court further held that section 66A had no direct relation to the incitement to an offense. It is said that the information disseminated on the Internet does not have to be informed that “attracts” anyone. Written words can be sent which can be merely in the area of ’discussion’ or ‘advocacy’ from a ‘specific point of view’. Furthermore, the mere cause of annoyance, discomfort, danger, etc., whether it is very abusive or of a threatening character, is not at all offenses under the Penal Code. Because Article 66A limits the information that can be sent on the Internet to the question of whether it is very objectionable, annoying, inconvenient, etc and does not relate to any of the eight subjects under section 19 (2), falls on section 19 (1) (a), and is not saved under section 19 (2), is declared unconstitutional.
If the above cases and instances are taken into account especially the Shreya Singhal case it can be easily seen that influence is the cause behind these arrests. In the instances mentioned, in most of these cases,the courts had removed the charges and asked explanations from the authority for making such arrests. Taking into consideration the judgment of the Supreme Court it is clear that a Facebook post cannot land you in jail under section 66A of the IT Act which is dealing with the punishment. But now this section is no more constitutional. Moreover, if the case is such that the information is amounting to an offense under IPC like sedition then the case will be a different one. But for a normal post on Facebook, there is no such punishment that will get you incarcerated.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
(2015) 5 SCC 1
(2015) 5 SCC 1