Monday October 14, 2019

Here’s why the abolition of Section 66 A of the IT Act is a good thing

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By Newsgram Staff Writer

Virtual world and social media are flooded with applauds for the Supreme Court’s decision of quashing of the controversial Section 66 A of the IT Act. Here’s what the verdict of court means for citizens of India.

To start with, let’s examine the wording of the Section 66 A, which clearly states:

“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.”

This particular Section of the IT Act was used and misused widely in the last few years by the government machinery to curb the constitutional rights of the citizens in the country.

Congress spokesman Manish Tewari said, the Supreme Court has done the “right and appropriate thing” by striking down the provision.

“It had become an instrument of oppression. It had put too much of power in the hands of law enforcement authorities to persecute and hound people who maybe innocuously or intentionally indulged in dissent,” he told the media.

Section 66A contained legal recourse against a number of cyber crimes such as stalking, bullying, threatening through SMS and email, phishing and spamming, among others. These crimes, will now be left uncovered after the judgement of the apex court.

Legal experts believe that as far as genuine cases of defamation are concerned, there is a provision under Section 499 and 500 of the Indian Penal Code. Since Section 4 of the IT Act brings electronic information at par with physical documents, the same provision can be applied in the case.

Elaborating the grounds for holding the provision “unconstitutional”, the court said terms like “annoying”, “inconvenient” and “grossly offensive”, used in the provision, are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgments of UK courts which reached different conclusions on whether the material in question was offensive or grossly offensive.

“When judicially trained minds can reach on different conclusions” while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, “What may be offensive  to a person may not be offensive to the other.”

The bench rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused.

Additional solicitor general Tushar Mehta told the court that “there was a need for a mechanism to put checks and balances on this medium,” because the Internet doesn’t “operate in an institutional form.”

 “Considering the reach and impact of medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button.”  Mehta told the Court.

Mehta also said that the vague wording of Section 66A, which said ‘grossly inoffensive’ content could land someone in prison for three year, was not a good enough reason to get rid of the section.

In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66A was needed to prevent such activities.

“Governments come and go but section 66A will remain forever,” the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same.

Apart from raising objections to who could determine what constituted ‘grossly offensive content’, the court has also not been impressed with the government argument that the section was needed to protect government data from hackers, and had pointed out that this eventuality was already dealt with viruses and hacking for which Section 65 of the IT Act was relevant.

Next Story

Cyber Experts: Indian Government Needs to Speed Up Necessary Changes in Domestic Laws on Internet Taxation

India has not yet crystal clearly defined its holistic national approach and perspectives on taxation on the Internet

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The Indian approach on the Internet taxation has left much to be desired. Pixabay

With the Organisation of Economic Co-operation and Development (OECD) proposing an overhaul in the taxation system for digital companies, cyber experts on Thursday urged the Indian government to speed up necessary changes in domestic laws on internet taxation so that tech giants like Google, Facebook and Amazon can be asked to shell out taxes they have been evading for years.

The OECD on Wednesday published a proposal to advance international negotiations to ensure large and highly profitable multinational enterprises, including digital companies, pay tax wherever they have significant consumer-facing activities and generate their profits.

According to cyber experts, given the fact that India is not yet a part of OECD, it is imperative that India must be mindful of the way how things are evolving.

“The Indian approach on the Internet taxation has left much to be desired. India has not yet crystal clearly defined its holistic national approach and perspectives on taxation on the Internet,” Pavan Duggal, the country’s leading cyber law expert and privacy advocate, told IANS.

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The OECD on Wednesday published a proposal to advance international negotiations to ensure large and highly profitable multinational enterprises, including digital companies. Pixabay

However, it is essential that India is mindful of the global developments that are taking place in this regard and must come up with its own taxation approaches, which are in sync with the global trends that are emerging.

“Further, India needs to distinctly be walking in the path of ensuring that legal entities who are offering their services via the internet in India, whether they are physically present in India or not, would be subject to Indian taxation,” Duggal elaborated.

The new OECD proposal is based on the work of the OECD/G20 Inclusive Framework on base erosion and profit shifting (BEPS), which groups 134 countries and jurisdictions on an equal footing, for multilateral negotiation of international tax rules, making them fit for purpose for the global economy of the 21st century.

“We’re making real progress to address the tax challenges arising from digitalisation of the economy, and to continue advancing toward a consensus-based solution to overhaul the rules-based international tax system by 2020,” said OECD Secretary-General Angel Gurria.

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According to advocate Virag Gupta, in the K.N. Govindacharya petition before Delhi High Court in 2012, taxation of Internet companies was first raised when the government of India gave “Double Tax Avoidance Agreement: as reason to not tax foreign Internet companies.

The OECD proposal “may strengthen the case for taxation where these companies are having huge business or presence. But how can tax haven countries can be compelled to follow the OECD guidelines?” Gupta told IANS.

Countries like China, France and Germany have shown political will-power to tax Internet companies but India has miserably failed to tax Internet giants despite being the biggest market.

“India’s Parliament is supreme and sovereign to tax these companies for which necessary amendments are to be made in the Income Tax Act, Companies Act and Information Technology (IT) Act etc,” he suggested.

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According to cyber experts, given the fact that India is not yet a part of OECD, it is imperative that India must be mindful of the way how things are evolving. Pixabay

According to him, India was always free to tax these companies.

“In this current economic slowdown, OECD decision may enable government to bring new tax regime by which digital companies may be taxed,” Gupta added.

At the moment, the said OECD “Public Consultation Document” is only indicative of the consultation process wherein stakeholders have been asked to give their comments by November 12, 2019.

However, the approach could form the basis for subsequent evolution of jurisprudence concerning taxation in the context of the Internet.

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“The fact remains is that today, most of the companies offering services on the Internet are not paying their share of taxation in different jurisdiction. This is despite them taking the benefit and advantage of the markets of the said jurisdictions,” informed Duggal.

“Further, India needs to distinctly be walking in the path of ensuring that legal entities who are offering their services via the internet in India, whether they are physically present in India or not, would be subject to Indian taxation,” added Duggal, who is also a senior Supreme Court advocate.

There are immense amount of challenges in this regard.

New changes would be required in the existing Income Tax laws but more significantly as a nation, “we need to make up our mind as to in what manner, we want to contribute to the evolving taxation jurisprudence on the Internet”, Duggal emphasized.

“The top 15 Internet companies alone have amassed a value of over Rs 20 lakh crore due to their Indian users. The companies’ value could be a major chunk of the Indian economy but is serving no purpose to Indians,” informed Gupta. (IANS)