Thoughts about high cybercrime rate and Kerala govt's move to propose new legislation to tackle it

@StultuS can we have an initial discussion over an audio call at 8 pm?

As discussed in the matrix group, we can meet at 9.30 and use https://meet.jit.si/piratesin-cybercrime-law

Minutes of the Meeting

- Hrishi briefly explained the background

- Praveen mentioned the patriarchy rooted in the system

- Consult the laws of other countries

- Hrishi will post basic background details in the thread

- KP/Bady - Offline - online difference, people from other countries.

- The law should clearly define criticism and bullying

- As Magnitude increases the time of action decreases. - bady

- Targetted attacks should be addressed separately - Sruthy

- The term 'Hatespeach' should be clearly defined

- Fine seems to be scalable punishment.

Information Technology Act:

• Section 66E penalizes the violation of a person’s privacy by intentionally capturing and publishing images of a private area of any person without his or her consent.

• Section 67 punishes electronic publication or transmission of obscene material.

• Section 67A deals particularly with the electronic publication or transmission of material that contains sexually explicit acts.

• Section 67B relates to material depicting children in sexually explicit acts and includes under its purview not only those who create and publish but also whoever downloads digital images depicting children engaged in a sexually explicit act or conduct.

• Also refer 66C & 66D

IPC

• Section 354A punishes sexual harassment, including making sexually coloured remarks.

• Section 354C punishes voyeurism that is capturing or disseminating images of a woman engaged in a private act in circumstances where she expects privacy

• Section 354D punishes stalking, especially online stalking.

• Section 503 prohibits criminal intimidation, including issuing physical threats to a person.

• Section 506 punishes criminal intimidation by ‘imputing unchastity’ to a woman.

• Section 509 punishes words, gestures or acts intended to insult the modesty of a woman or to intrude upon her privacy.

• Other relevant sections: 153A, 290, 292, 292A, 293,294, 354B, 415, 416, 499, 507

The Indecent Representation of Women (Prohibition) Act

• relevant sections: 4,6

Protection of Children from Sexual Offences Act

• relevant sections: 11,12,13,14

 PoSH Act 2013

SCST Act 1989

Article 21 (Right to life and personal dignity)

https://www.mathrubhumi.com/features/cyber-crime-1.5101328

https://www.mathrubhumi.com/features/cyber-crime-1.5101317

https://www.mathrubhumi.com/features/cyber-crime-1.5093069

https://www.mathrubhumi.com/features/cybercrime-1.5103803

SMC is sending a letter to CM,

Please endorse it in the list.

http://lists.smc.org.in/pipermail/discuss-smc.org.in/2020-November/003678.html

I made a draft at https://cryptpad.fr/pad/#/2/pad/edit/u6X3qhg7jUhVS-eoYT4YfVPd/

and its current version is copied below. It'd be easier to edit the draft directly or leave comments here or on the link above.

Draft

To, People of Kerala.

Dated: November 22nd, 2020

Kerala Police Act was amendment was signed into law today which introduced a new section,

118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.

Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.

The proposed amendment is a cognisable offence and any person can lodge a complaint or a police officer himself can suo moto register a case against the accused.

We see the need for protecting vulnerable sections of our society from those who misuse such means to the detriment of others. We also see great danger in making laws that restrict freedom of expression without adequate thought. We wish to point out the following:

1. The rationale behind the proposed amendment.

The primary motivation behind the proposed amendment seems to be that Section 66A of the Information Technology Act, 2000 and Section 118(d) of the Kerala Police Act can no longer be applied. These were draconian measures that were struck down as unconsititutional by the Honourable Supreme Court, on the grounds that it violated Freedom of Speech, which is a fundamental right in our country. The proposed amendment while remaining ambiguous, seeks to criminalise defamation via speech, and potentially make it a non bailable offense. Further, it confers rights to state's police machinery for filing suo motu cases. The rationale behind these measures seem to be that defamation is easy to identify, and thatit should be easy to administer justice swiftly and easily. While these are noble goals, they risk the reduction of questions such as what constitutes defamation into simple notions that are often in conflict with the idea of free speech.

2. Ambiguity in language of the proposed amendment.

The language used to construct the amendment is broad, vague and allows for multiple and sometimes conflicting interpretations. It neither set standards for the content that is deemed defamatory nor does it exhaustively specify what it means by specifying content and propagation. It is said in the cabinet meeting notes that the primary motivation is the defamation through social media, but the amendment itself is worded so that it applies to everything from writing on the walls to private communication between two people.

The judgment of the Supreme Court in Shreya Singhal V. Union of India that held Section 66A of the Information Technology Act, 2000 and Section 118(d) of the Kerala Police Act as unconstitutional and violative of Article 19(1)(a) of the Constitution of India. The Honourable Court held that “Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right”. Section 66A as well as Section 118(d) of the Kerala Police Act were struck down since the terms used to define them were too broad, open-ended and hence vague and open to a wide variety of interpretations. The new amendment suffers from the same problems, and its abuse in the same manner as Section 66A IT Act or Section 118(d) of Kerala police act is almost guarenteed.

3. Chilling effect on Freedom of speech

The wording indicates that the proposed amendment is applicable to all outlets and communication mechanisms, and even private conversations could come under its purview. Setting up a law that makes it easy for the state machinery or private instituitions to punish an individual with a (potentially) non bailable offence is dangerous and seriously curtails the freedom of responsible citizens, discussion fora and news media. Since the act is too broad to define what constitutes defamation, even something as trivial as a restaurant or book review leaves the possibility that the author of such a review will get slapped with fines and a non bailable offence.

4. Effects on economy and society.

Anything that makes it easy to silence such watchdogs or even companies in competing space stifles innovation and reduces opportunities for healthy competition. If taking out a competitor/critique is easily accomplished by construing any sort of advertisement or communication as defamatory and a cognisable,non bailable offence, the value of legitimate competition is reduced. The proposed amendement is draconian in that sense, and it stands to reason that is detrimental to industry since it provides a way to stifle competiton easily. This also applies to non profits who act as industry watch dogs and safe guards society against malpractices. A historic struggle such as Plachimada would not be possible if it was easy for Coca Cola to take out the oppressed via a draconian provision.We humbly urge the honourable chief minister and cabinet to analyse our arguments and reconsider the proposed amendment.

5. We want to remind you about the double standards of the ruling party which opposed Section 66A of the IT Act. We also would like to remind you the criticisms of the opposition parties are also not honest. We urge you to not support parties who are not honest in their policies. We urge you to challenge them when they come and ask you for votes.

Based on statement published by Swathanthra Malayalam Computing http://lists.smc.org.in/pipermail/discuss-smc.org.in/attachments/20201101/c5816766/attachment-0002.pdf

References

1. Kerala Shreds Shreya Singhal Judgment, 'Humiliating' Tweet Can Get You Three Years in Jail https://thewire.in/rights/kerala-police-act-amendment-ordinance