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November 27, 2020
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Why in news?

  • Following criticism, the Kerala government has decided to withdraw an Ordinance.
    • The ordinance gives unrestrained powers to the police to arrest anyone expressing or disseminating any matter that it deems defamatory.
  • The move necessitates an assessment of existing laws to deal with social media abuse and online content in general.

Why did Kerala government bring such a law?

  • The Supreme Court, in 2015, struck down Section 66A of the Information Technology (IT) Act. 
  • The principal argument by Kerala was that the Central government had not brought in any legislation yet to replace the revoked Section 66A.
  • This places limits in police effectively dealing with social media abuse and cyber crime.
  • Many state governments feel that the existing laws are inadequate.
    • Chhattisgarh too recently brought in an amendment to criminalise sexual harassment online.
  • [But the fact is that the existing laws are adequate.]

What are the existing laws in this regard?  

  • The Indian Penal Code (IPC) criminalises speech that is obscene, defamatory, that insults the modesty of women and intrudes upon her privacy.
    • It punishes anonymous criminal intimidation, voyeurism, digitally enabled stalking, hate speech, and even non-consensual sharing of sexual images online.
  • In addition to that is the Information Technology Act of 2000 that punishes speech that is obscene.
    • It also places obligations on intermediaries, where intermediaries have a duty of due diligence.
    • Intermediaries have to take down content based on a request by the government or a court order.
    • This obligation is actually very broadly worded.
    • It covers any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, hateful, or racially or ethnically objectionable, libellous, invasive of another’s privacy, disparaging, etc.
  • Hate speech - Undoubtedly, there is a problem with hate speech in the online space.
  • Discussions at various levels of government have been in place for a while in this regard.
  • 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, there is discussion on whether Section 66A needs to be replaced with a better drafted provision.

What should the states focus on?

  • A key problem is that enforcement and implementation of existing laws is not very good.
  • In the Kerala example, rather than rush into making a new law, it could have actually outlined the specific problem.
  • The government should have conducted more transparent consultations with the stakeholders involved, to try and figure out solutions.
  • State governments, in general, must also be focused on improving the criminal justice system.
  • This is to make it easier for victims to access the system to make complaints, and for the police to be able to prosecute the complaints properly.
  • As widely known, it is generally not very easy for victims or individuals to file and proceed with complaints.
    • Given the massive usage of the Internet in India and the huge amounts of hate speech online, there is really a low number of cyber crimes as per the NCRB data.
    • E.g. In 2017, 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.

How is content regulation done currently?

  • Clearly, there is absence of any changes in the legislative structure after the striking down of Sec 66A.
  • So, courts and governments have largely resorted to blocking content or forcing intermediaries to take steps to limit the spread of illegal content.
  • The government from time to time issues directions.
  • Most recently, in the context of WhatsApp, they have been asked to take certain steps pertaining to illegal content on their platform.
  • There are also independent regulators, like the Election Commission, which has taken some steps in the context of electorally sensitive content.
  • While legislative efforts are on, the priority now is enforcement and implementation of existing laws.

 

Source: The Hindu

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