Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

21 November 2012

Fighting the Online Abuse of Women

(This post argues that Section 66A of the IT Act is not essential to protect women online.)

It cannot legitimately be argued that abuse against people (regardless of whether they are men, women or children) should be legal. And it is this lack of a legitimate argument in support of abuse which has been appropriated to support the existence of Section 66A of the Information Technology Act, 2000 (i.e. the IT Act) in the statute, particularly with reference to online abuse against women.

That women are often abused online, in terms which do not bear repeating, is unarguable. That Section 66A provides the best way to combat such abuse is arguable. The Section itself contains overarching provisions which make potentially illegal, in the online sphere, not only that content which would, in any case, have been illegal offline, but also some content which would be entirely legal offline. In its entirety, Section 66A of the IT Act reads as follows:
Punishment for sending offensive messages through communication service, etc. 
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.

Explanation.- For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

The scope of Section 66A(b) of the IT Act is not especially wide: the sending/publication of false information per se is not an offence under it. It is only an offence if (1) the sender knows that the information he is sending is false, and (2) the purpose for which the information is sent is to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. The word ‘persistently’ also makes an appearance in the provision, and it could be argued that Section 66A(b) of the IT Act would only come into play if a sender were to persistently send/publish information of the nature contemplated by the Section itself. That said, a number of terms used in the Section are not clearly defined which impedes the possibility of content being reviewed in relation to it in a strictly objective manner.

The threshold for having committed an offence under Section 66A(c) of the IT Act is lower, and the sending of any electronic mail or message for the purpose of causing annoyance or inconvenience could potentially be an offence under the Section. In addition to this, Section 66A(c) of the IT Act criminalises the sending of electronic mail or messages ‘to deceive or to mislead the addressee or recipient about the origin of such messages’. While there is little argument to be made against a provision which makes deception about the origin of a message illegal, there is a great deal one could say against the criminalisation of merely intending to cause ‘annoyance’ or ‘inconvenience’ — both subjective terms bereft of statutory definition.

If that was not worrying enough, Section 66A(a) of the IT Act goes one step further and makes potentially illegal sending (online) ‘any information that is grossly offensive or has menacing character’. As with the terms ‘annoyance’ and ‘inconvenience’, there is no statutory guidance regarding what would be considered to be ‘offensive’ for the purpose of attracting Section 66A(a) of the IT Act.

The result is that the scope of all three sub-sections of Section 66A of the IT Act is not only vague but that it is also wide. In the absence of clear definitions laying down what the parameters of the terms used in the Section are, the Section itself is susceptible to human interpretation, as well as to possible misuse and underuse. This could happen in the case of the Section being invoked where the sender of information has sent/published material online which may, under traditional laws, be considered to be legal. It could also happen where persons (including women) receive information which should ideally be considered to violate the Section but which falls short of the subjective ‘offensiveness’ criterion seen in the Section (in the opinion of the person to whom a complaint is made).

There is therefore a compelling argument to be made against the lack of clarity in Section 66A of the IT Act.

In addition to this, though, it is also pertinent to note that when it comes to abuse against women, there are a plethora of laws which may be invoked, depending on the circumstances, both when women as a class are abused or when individual women are abused. These legal provisions (leaving aside the controversial Intermediary Guidelines, 2011) include:
  • The ASCI Guidelines (which have the force of law) with regard to advertisements;
  • Rules 6 and 7 of the Cable Television Networks (Regulation) Act, 1995, which contain Programme and Advertisement Codes respectively (and may, arguably, be applicable to IPTV);
  • The Human Rights Act, 1993 which mandate the NHRC and State Human Rights Commissions to perform functions they consider necessary for the protection human rights, and which may be interpreted to include a mandate to require persons to explain their publication, etc. of objectionable content;
  • The Indecent Representation of Women (Prohibition) Act, 1986 which, as its name suggests, prohibits the indecent representation of women;
  • The Indian Penal Code, 1860:
    • Sections 153A(1) and 505 which, inter alia, prohibit doing anything prejudicial to the maintenance of social harmony, or which induce public mischief;
    • Section 228A which prohibits the disclosure of rape victims’ identities;
    • Sections 292 and 293 which prohibit the distribution, etc. of obscene content;
    • Section 499 which prohibits the publication of defamatory content;
    • Section 503 which prohibits criminal intimidation; and
    • Section 507 which prohibits criminal intimidation by anonymous communication.
The Information Technology Act, 2000, itself also contains provisions other than Section 66A which may be used to combat online abuse against women including:
  • Section 66E which prohibits the transmission of image of a private area of any person without their consent, under circumstances violating the privacy of that person; and
  • Sections 67, 67A and 67B which prohibit the transmission of obscene and sexually explicit material including child pornography.
Apart from this extremely incomplete list of (primarily statutory) laws which may be invoked when women are abused online, there are also a number of actions which may be initiated under tort law dealing with defamation, the invasion of privacy and the violation of the right of publicity, among other issues.

As such, considering that there are legal alternatives to the invocation of Section 66A of the IT Act in order to fight against the abuse of women online, and considering that the Section itself is subjective, to say the least, it appears to be inaccurate to state that Section 66A of the IT Act must remain in the statute as it is essential to protect women online.

(This post is by Nandita Saikia and was first published at Indian Copyright. Also see The Intermediary Rules, Takedowns and Free Speech.)

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