Banter and innocent fun comments and posts are what many of us enjoy reading while scrolling through our social forums, so much that we might have inadvertently normalized and blurred the lines between harmless fun and committing a criminal offence. Social media users tend to forget their accountability when they share, post, comment, but the provisions of the law will not let them escape from the reality of their actions. Once an aggrieved party feels that the freedom of expression of another is trampling on his own wellbeing, there exists avenues which that person might take hold of and seek relief.
As a reminder, Section 46 (ga) of the Information and Communication Technologies Act 2001 provides:
46. Offences
(1)Any person who –
(ga) uses a telecommunication equipment, an information and communication service, a telecommunication service or information and communication technologies to send, transmit, transfer, post, publish, deliver, show or otherwise communicates by means of the telecommunication equipment a message which is obscene, indecent, offensive, abusive, threatening, menacing, false or misleading, which is likely to cause or causes harm to a person;
shall commit an offence.
In a matter of seconds, while a post falling in the above category might be gaining audience, reactions, countless shares, and comments, at that same time the poster and any participant put themselves at risk of facing a penalty which on conviction of a breach of section 46(ga), of a fine not exceeding 1,000,000 rupees and to penal servitude for a term not exceeding 10years. Amongst the factors which the Court may consider when deciding are the age and characteristics of the alleged victim, the extent of the circulation of the message, the context, the harm and likelihood of harm.
Now, what harm is defined as? Under section 46(3) ICTA, harm is defined as ‘serious emotional distress’, and while there is no parameter on how to possibly measure distress, the burden remains on the prosecution to prove the harm caused.
Closely similar offences would include cyberbullying under the Cybersecurity and Cybercrime Act 2021 which is defined as an imbalance of power between the perpetrator and the victim which causes feelings of distress, fear, loneliness or lack of confidence in the victim, and which results in serious physical or psychological harm to the victim, disability of the victim or death of the victim. Upon conviction, cyberbullying carries a fine not exceeding one million rupees and to penal servitude for a term not exceeding 20 years. Revenge pornography is equally subject to the same penalty as well as misusing a fake profile, cyber extortion, and cyberterrorism.
Easy access to information should not mean there should be a laissez aller in the way of handling those informations. No matter the likes, no matter how entertaining.
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