Module III - Part Two

Question 1

Criticisms of Section 66A

Answer 1

1. Terminology “sends”
2. Information Definition
3. Vagueness
4. Strict Liability Concerns
5. Enforcement issues
6. Disproportionate Punishment
7. Who determines offensiveness
8. Borrowed Concepts

Question 2

Issue with 66A “sends”

Answer 2

The Act uses sends instead of communicate or publish. Send implies that the act is complete when the message leaves the sender’s system, irrespective of receipt or recipient reaction. The focus was on deterrence by punishing the act of sending offensive messages.

Question 3

Definition of Information with 66A

Answer 3

The definition focuses on the container, not the content itself. This breadth meant 66a could apply to virtually any kind of information sent.

Question 4

Vagueness 66A

Answer 4

Terms like offensive, annoyance, inconvenience are highly subjective. What one might find satirical other might find offensive. Creates uncertainty and arbitrariness. Unlike o

Question 5

Strict liability concern for 66a

Answer 5

For clause (b) (grossly offensive/menacing), there appeared to be no explicit mens rea requirement mentioned in the text itself, potentially making it a strict liability offence – punishable regardless of intent, even if someone else used the person’s device.
[Note: Clause (a) required ‘knowledge’ and ‘purpose’; Clause (c) required intent ‘to deceive or mislead’].

Question 6

Disproportionate Punishment 66a

Answer 6

The maximum punishment was 3 years imprisonment, a significant restriction on liberty for potentially subjective offences like causing “annoyance.” Conviction seemed easy based on proving sending from a device + subjective interpretation of offensiveness/other terms.

Question 7

Borrowed Concepts 66A

Answer 7

US Communications Decency Act - Patently Offensive
UK Malicious Communications Act - Grossly Offensive
Indian Post Office Act -

Question 8

Indecent v. Obscenity case: US

Answer 8

Used in Shreya Singhal. SC found “indecent” to be overboard but upheld restrictions on “obscenity”. This was used by analogy to say that “Offensive” in 66A was unconstitutionally vague.

Question 9

Chilling Effect Argument

Answer 9

The vagueness, breadth, and potential for arbitrary enforcement of Section 66A were argued to have a “chilling effect” on legitimate freedom of speech and expression online, making people self-censor for fear of prosecution. It contradicted government promises of promoting online openness and certainty in the law. Pre-screening content (like on Facebook) is impractical and could jeopardize intermediary stat

Question 10

Which article was 66a (found to be) in violation of?

Answer 10

Article 19(1)(a) and not saved by Article 19(2), reasonable restrictions. The grounds of Section 66a fall outside the permissible grounds in Artifcle 19(2)

Question 11

Court ruling on Section 79 in Shreya Singhal

Answer 11

The court read down Section 79(3)(b). An intermediary loses safe harbour for failing to remove content only if it fails to act expeditiously after receiving actual knowledge from either
1. Court order
2. A notification from the appropriate government agency (69A)
Intermediaries are NOT required to adjudicate on the legality of content based on third party complaints.

Question 12

Lessig v. Barlow’s approaches to Internet regulation

Answer 12

Barlow suggested that the internet has its own unique culture, ethics and was capable of self regulation. He warned against imposing external morals.
Lessig suggested that regulation happens via law, norms, market and code architecture. The debate then is about HOW and HOW MUCH should be regulated.