Are tougher laws the answer to check online abuse?
Context: There is a strong and wide gamut of laws, but implementation is poor in many cases
- Following widespread criticism, the Kerala government has decided to withdraw an Ordinance that gives unbridled powers to the police to arrest anyone expressing or disseminating any matter that it deems defamatory.
- However, the move to introduce such a law in the first place shows that State governments believe that existing laws are not adequate to deal with social media abuse.
To what extent is this true?
- The principal argument of the Kerala government in bringing this law was that the Central government had not brought in legislation yet to replace the revoked Section 66A, and that had left the police hamstrung in effectively dealing with social media abuse and cyber crime.
Are there effective laws to deal with these issues and is it then a question of implementation being weak?
- Kerala experience shows a belief that many State governments believes that our existing laws are actually adequate.
- Indian Penal Code (IPC) that criminalises speech that is obscene, defamatory, that insults the modesty of women and intrudes upon her privacy.
- It punishes anonymous criminal intimidation, it punishes voyeurism, it punishes digitally enabled stalking, hate speech, and even non-consensual sharing of sexual images online.
- The Information Technology Act of 2000 that punishes speech that is obscene.
- The IT Act also places obligations on intermediaries, where intermediaries have a duty of due diligence; they have to take down content based on a request by the government or a court order.
- This obligation is actually very broadly worded — any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, disparaging, etc.
- There is a strong and wide gamut of laws that covers all of these offences.
- Apart from Kerala, Chhattisgarh, recently brought in an amendment to criminalise sexual harassment online.
- This looked at criminalising “obscene, lewd, filthy or indecent comments online”. And we saw this law being misused against Mohammad Zubair, the Alt News co-founder.
- State governments must also be focused on improving the criminal justice system in order to make it easier for women to be able to access the system to make complaints, and for the police to be able to prosecute the complaints properly.
- There is a problem with hate speech in the online space. This is something that’s been discussed at various levels of government.
- In 2017, the Law Commission of India recommended that two new provisions be introduced to the IPC to specifically deal with online hate speech.
- The Central government has also initiated consultations on amendments to the IT Act.
- One of the issues being taken up in this context is likely to be the scope of offences under the Act; in particular, whether Section 66A needs to be replaced with a better drafted provision.
- Arbitrary or poorly defined offences is really not going to help the situation. So, in the Kerala example, rather than rush into making a new law that is likely to be struck down by the courts, it might have been better if the government had actually outlined the specific problem and conducted more transparent consultations with the stakeholders involved to try and figure out solutions.
- Enforcement and implementation of existing laws is not very good. It’s common knowledge that it’s generally not very easy for victims or individuals to file and proceed with complaints.
- Given the massive usage of the Internet in India, the huge amounts of hate speech online there is a really low number of cyber crimes as per the NCRB (National Crime Records Bureau) data.
- In 2017, for example, there were only about 21,000 cases in India, which is a huge jump from the 12,000 odd cases in 2016. But that still appears to be a fairly low number in the Indian context.
Has there been any significant legislation or guidelines on grievance redressal or removal of offensive content and do these work effectively?
- There hasn’t been any single legislation that deals with online content, though, there have been some States that have put in place amendments to the IPC.
- What a lot of the public discussion has focused on is how intermediaries need to do more to make the Internet a safer place.
- To this end, there have been some efforts to amend existing legal frameworks.
- The first was a Private Member’s bill, which was introduced in Parliament by the Congress’ Arunachal East MP, Ninong Ering. It was called the Social Media Accountability Bill and it sought to impose a range of obligations on social media platforms, and also create a new regulator to oversee the space. However, the Bill wasn’t actually taken up by Parliament.
- There were proposed changes to the intermediaries rules under the IT Act that were released to the public in December 2018. They lay down the due diligence guidelines that intermediaries need to follow in order to not face prosecution for illegal content being shared by users on their platforms.
- These amendments basically sought to increase the number of obligations on intermediaries of all types, so they would be required to use automated tools to filter illegal content and would also be required to ensure the liability of all the users and so on.
- The draft faced a lot of criticism from civil society and industry due to the possible chilling effects on free speech, the problems associated with automated filtering of content, and the cost to platforms.
- So, no new rules have as yet been announced by the government despite the fact that we keep hearing that this may be done any time.
- In the absence of any changes in the legislative structure, courts and governments have largely resorted to blocking content or forcing intermediaries to take steps to limit the spread of illegal content.
- Madras High Court threatened to ban TikTok because it was supposedly enabling the circulation of obscene content.
- It’s also important to remember that the government from time to time issues directions, which has happened most recently in the context of WhatsApp, where they have been asked to take certain steps pertaining to illegal content on their platform.
- There is need of an independent regulator, like the Election Commission, which has taken some steps in the context of electorally sensitive content.
Can other States also argue that what has followed 66A is still too transient and in the realm of proposal and so they need new laws?
- It might have been politically motivated, one praiseworthy fact about the Kerala government is that it backtracked once there was significant criticism, and that is very rare to see.
- Chhattisgarh has already passed an amendment using similarly broad language to criminalise online sexual harassment.
- States should think before they pass such laws, or have proper public consultation.
- Kerala government has actually set a good precedent, not just for the States, but also for the Central government.
- Governments can actually afford to be responsive to criticism and take back laws that face significant public opposition.
Like the Kerala government using the Police Act, are there other State laws that governments can adapt to content online? Is the multiplicity of such laws a problem in this case?
- Our Constitution does recognise that States can make criminal law.
- It would be problematic if we have a variety of laws being passed to deal with the same issue which might lead to inconsistency.
- Second, very often State amendments are not going to get public attention in the same way that Central laws do.
- For example, numerous States have amended laws such as the Goondas Act to apply these to the digital space.
- However, there’s very little discussion on how exactly these laws are actually being implemented.
- State laws is that in Shreya Singhal, which struck down Section 66A, the same judgment also struck down Section 118(d) of the Kerala Police Act which had similar provisions to Section 66A.
- The court said that Section 118(d) is also vaguely worded and over-broad and adopted a similar analysis to 66A.
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