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.
