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Following the quashing of Section 66A of the IT Act, the Supreme Court of India this week suggested that there should be a new law to regulate social media to counter malicious and defamatory messages circulated online, reports The Times of India.

Justices Dipak Misra and Prafulla C Pant said Parliament should bring a new law to regulate the social media. “Section 66A was quashed because it was not properly drafted and was vague. We can ask Parliament to bring a new law. We have earlier also suggested Parliament to enact a law on other issues and we can suggest it to pass a legislation on this issue also,” the apex court said. The justices made the remarks while hearing a number of cases challenging the criminality of defamation laws.

In March, the Supreme Court struck down the controversial Section 66 A and declared it unconstitutional. Justice Rohinton Fali Nariman read that Section 66A makes no distinction on whether the communication has any impact on public order. The clear and present danger test and the public disorder test ought to be a prerequisite. What may be offensive to one may not be to another, what may be annoying to one may not be to another. That is what renders 66a unconstitutional and vague.

It’s also worth remembering that there were reports that the home ministry was seriously considering bringing back Section 66A of the IT Act, 2008 albeit in a slightly different avatar. The ministry had set up a committee to look into how national security concerns can be accommodated in the IT Act, now that Section 66A is no longer available. Representatives from the Intelligence Bureau, National Investigation Agency and Delhi Police were also part of the committee. This committee was expected to submit its report within a month’s time.

Arrests over “objectionable content” on Facebook still present

However, it needs to be pointed out that the police have still been arresting people over “objectionable content”on social networks. In July, eight persons in Uttar Pradesh were arrested in  two separate incidents for posting on Facebook. The persons booked under the sections 153B, 295A, 504 of the Indian Penal Code. The above sections deal with hate speech in the country as they sought to promote “disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities.”

MediaNama’s take

With due respect to the Supreme Court’s concerns over defamation and hate speech which occurs on social media, it needs to be pointed out that often on social networks, people share memes and forwards whose origin cannot be traced and sharing the post does not mean that a person wrote it or created it. Hence there is no way of proving that a person wrote the message. After all, ‘liking’ a post on Facebook is not the same as writing, speaking hate speech, it is merely endorsing a point of view.

Often persons in positions of power abuse free speech and use it to incite mobs into a frenzy. Perhaps the laws should take that into account while dealing with amendments to hate speech and defamation laws. The current laws are abused by those in power to suppress dissent. One only needs to look at the number of cases where people were arrested under Section 66A over the years.

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