Information

Technology
Law

Name: Ameya Gawhane

Roll No: 7
Subject: Information Technology Law
Course: Fourth Year B.B.A- LL.B
Q.1 Relation of Intellectual Property Rights with Cyber Laws.

Ans: Intellectual property rights are the legal rights that cover the privileges given to
individuals who are the owners and inventors of a work, and have created something
with their intellectual creativity. Individuals related to areas such as literature, music,
invention, etc., can be granted such rights, which can then be used in the business
practices by them.

The creator/inventor gets exclusive rights against any misuse or use of work without
his/her prior information. However, the rights are granted for a limited period of time
to maintain equilibrium.

The following list of activities which are covered by the intellectual property rights are
laid down by the World Intellectual Property Organization (WIPO) −

 Industrial designs
 Scientific discoveries
 Protection against unfair competition
 Literary, artistic, and scientific works
 Inventions in all fields of human endeavour
 Performances of performing artists, phonograms, and broadcasts
 Trademarks, service marks, commercial names, and designations
 All other rights resulting from intellectual activity in the industrial, scientific,
literary, or artistic fields
Types of Intellectual Property Rights
Intellectual Property Rights can be further classified into the following categories-

 Copyright
 Patent
 Trade Secrets, etc.
Advantages of Intellectual Property Rights
Intellectual property rights are advantageous in the following ways −

 Provides exclusive rights to the creators or inventors.

 Encourages individuals to distribute and share information and data instead of

keeping it confidential.
 Provides legal defence and offers the creators the incentive of their work.

 Helps in social and financial development.

Intellectual Property Rights in India:

To protect the intellectual property rights in the Indian territory, India has defined the
formation of constitutional, administrative and jurisdictive outline whether they imply
the copyright, patent, trademark, industrial designs, or any other parts of the
intellectual property rights.

Back in the year 1999, the government passed an important legislation based on
international practices to safeguard the intellectual property rights. Let us have a
glimpse of the same −

 The Patents (Amendment) Act, 1999, facilitates the establishment of the mail box
system for filing patents. It offers exclusive marketing rights for a time period of
five years.

 TheTrade Marks Bill, 1999, replaced the Trade and Merchandise Marks Act,
1958

 The Copyright (Amendment) Act, 1999, was signed by the President of India.

 Thesui generis legislation was approved and named as the Geographical

Indications of Goods (Registration and Protection) Bill, 1999.

 The Industrial Designs Bill, 1999, replaced the Designs Act, 1911.

 ThePatents (Second Amendment) Bill, 1999, for further amending the Patents Act
of 1970 in compliance with the TRIPS.

Intellectual Property in Cyber Space

Every new invention in the field of technology experiences a variety of threats.
Internet is one such threat, which has captured the physical marketplace and have
converted it into a virtual marketplace.

To safeguard the business interest, it is vital to create an effective property

management and protection mechanism keeping in mind the considerable amount of
business and commerce taking place in the Cyber Space.
Today it is critical for every business to develop an effective and collaborative IP
management mechanism and protection strategy. The ever-looming threats in the
cybernetic world can thus be monitored and confined.

Various approaches and legislations have been designed by the law-makers to up the
ante in delivering a secure configuration against such cyber-threats. However, it is the
duty of the intellectual property right (IPR) owner to invalidate and reduce such mala
fide acts of criminals by taking proactive measures.

To design and implement a secure cyberspace, some stringent strategies have been put
in place. This chapter explains the major strategies employed to ensure cybersecurity,
which include the following −

 Creating a Secure Cyber Ecosystem

 Creating an Assurance Framework
 Encouraging Open Standards
 Strengthening the Regulatory Framework
 Creating Mechanisms for IT Security
 Securing E-governance Services
 Protecting Critical Information Infrastructure

Related Case Laws:

1.Avnish Bajaj vs. State (2005)

Facts: The case involved an IIT Kharagpur student Ravi Raj, who placed on the
baazee.com a listing offering an obscene MMS video clip for sale with the username
aliceelec. Despite the fact that baazee.com have a filter for posting of objectionable
content, the listing nevertheless took place with the description, “Item 27877408 –
DPS Girls having fun!!! full video + Baazee points.” The item was listed online
around 8.30 pm in the evening of November 27th 2004 and was deactivated, around
10 am on 29th November 2004. The Crime Branch of Delhi police took cognizance
of the matter and registered an FIR. Upon investigation, a charge sheet was filed
showing Ravi Raj, Avnish Bajaj, the owner of the website and Sharat Digumarti, the
person responsible for handling the content, as accused. Since, Ravi Raj absconded;
the petition was filed by Avnish Bajaj, seeking the quashing of the criminal
proceedings.
Judgement (Delhi High Court):
The court observed that a prima facie case for the offence under Section 292 (2) (a)
and 292 (2) (d) IPC is made out against the website both in respect of the listing and
the video clip respectively. The court observed that “[b]y not having appropriate
filters that could have detected the words in the listing or the pornographic content of
what was being offered for sale, the website ran a risk of having imputed to it the
knowledge that such an object was in fact obscene”, and thus it held that as per the
strict liability imposed by Section 292, knowledge of the listing can be imputed to
the company. However, as far as Avnish Bajaj is concerned, the court held that since
the Indian Penal Code does not recognize the concept of an automatic criminal
liability attaching to the director where the company is an accused, the petitioner can
be discharged under Sections 292 and 294 of IPC, but not the other accused. As
regards S. 67, read with Section 85 of the IT Act, the Court however, observed that a
prima facie case was made out against the petitioner Avnish Bajaj, since the law
recognizes the deemed criminal liability of the directors even where the company is
not arraigned as an accused. The judgement however did not declare Avnish Bajaj
guilty.

2.Parle Products (P) Ltd. Vs. J.P. and Co., Mysore AIR 1972 SC 1359

Facts: Appellant was manufacturer of biscuits and owner of registered trade mark
being a wrapper. This wrapper was used in connection with the sale of their biscuits
known as “Parle’s Glucose Biscuits” printed on the wrapper. In March 1961,
Appellant came to know that the Respondent was selling biscuits in a wrapper which
was deceptively similar to their registered trade mark.
Judgements:
District Court: There were greater points of dissimilarity than of similarity
between the two wrappers and it was unlikely that the Respondent’s goods could be
passed off as and for the goods of the Appellant.
High Court: Court has to bear in mind that it was dealing with packets of biscuits
which were generally used by people of the upper classes. There were several
distinguishing features between the two wrappers. Similarity in the two wrappers
was limited to the extent that both were partly yellow and partly white in colour and
both bore the design of a girl and some birds. The lady in the wrapper used by the
Appellant has a pot on her hand while the lady in the wrapper used by the
Respondent has a hay-bundle on her head. Respondent’s wrapper has cows and
Appellant’s wrapper has two calves.
Supreme Court: “Whether one mark is deceptively similar to another, the broad and
essential features of the two are to be considered. They should not be placed side by
side to find out if there are any differences in the design and if so, whether they are of
such character as to prevent one design from being mistaken for the other. It would
be enough if the impugned mark bears such an overall similarity to the registered
mark as would be likely to mislead a person usually dealing with one, to accept the
other if offered to him. In this case we find that the packets are practically of the
same size, the colour scheme of the two wrappers is almost the same; the design on
both though not identical bears such a close resemblance that one can easily be
mistaken for the other. The essential features of both are that there is a girl with one
arm raised and carrying something in the other with a cow or cows near her and hens
or chickens in the foreground. In the background there is a farm house with a fence.
The word “Glucose Biscuits” in one and “Glucose Biscuits” on the other occupy a
prominent place at the top with a good deal of similarity between the two writings.
Anyone in our opinion who has a look at one of the packets to-day may easily
mistake the other if shown on another day as being the same article which he had
seen before. If one was not careful enough to note the peculiar features of the
wrapper on the plaintiffs’ goods, he might easily mistake the defendants’ wrapper for
the plaintiffs’ if shown to him some time after he had seen the plaintiffs’. After all, an
ordinary purchaser is not gifted with the powers of observation of a Sherlock
Holmes. We have therefore no doubt that the defendants’ wrapper is deceptively
similar to the plaintiffs’ which was registered. We do not think it necessary, to refer
to the decisions referred to at the Bar as in our view each case will have to be judged
on its own features and it would be of no use to note on how many points there was
similarity and in how many others there was absence of it.”

3.Samsung Electronics Co. v. Apple Inc

Facts: In April 2011, Apple Inc. (Apple) sued Samsung Electronics, Co., Ltd.
(Samsung) and argued that certain design elements of Samsung’s smartphones
infringed on specific patents for design elements in the iPhone that Apple holds. The
jury held that Samsung had infringed on Apple’s patents and awarded over $1 billion
in damages. The district court ordered a partial retrial on the issue of damages
because some damages had been awarded for a period in which Samsung did not
have notice of some of the asserted patents. On retrial, the jury awarded nearly $300
million in damages. On appeal, Samsung argued that the district court erred in
allowing the jury to award damages based on Samsung’s entire profits, rather than
the fraction of profits directly attributable to the infringed patents themselves. The
U.S. Court of Appeals for the Federal Circuit armed the district court’s award of
damages because Samsung did not argue that there was a lack of substantial evidence
to support the award.
Question: If an infringed design patent only applies to a component of a product,
should damages for the infringement be limited to the portion of the infringer’s
profits attributable to that component?
Judgement: In the case of a multicomponent product, the relevant “article of
manufacture” for arriving at a damages award under the relevant section of patent
law need not be the end product sold to the consumer but may be only a component
of that product.
For the purpose of calculating damages in a patent infringement action, the infringing
“article of manufacture” may be defined as either an end product sold to a consumer
or as a component of that product. Justice Sonia Sotomayor delivered the opinion of
the unanimous Court, which held that the relevant text of the Patent Act encompasses
both an end product sold to a consumer as well as a component of that product. The
fact that a component may be incorporated into the larger end product does not place
it outside the category of an “article of manufacture.” Therefore, the U.S. Court of
Appeals for the Federal Circuit erred in interpreting that phrase too narrowly to only
refer to the end product. Under the proper reading of the phrase, an infringer will
sometimes be liable for the total profit from the component of the end product, but
the Court declined to determine whether that is the case here.

4.Yahoo! Inc. v. Akash Arora & Anr.

Facts: Plaintiff was the owner of the trademark ‘Yahoo!’ and domain name
‘Yahoo.Com’. The Defendants adopted the name ‘Yahoo India’ for similar services
which as per the Plaintiff was identical to or deceptively similar to Plaintiff’s
trademark ‘Yahoo!’. Plaintiff instituted a suit against the Defendants seeking a
permanent injunction for passing off. Plaintiff also sought an ad interim temporary
injunction restraining the Defendants from operating any business on internet or
otherwise under the domain name ‘Yahooindia.Com’ or any name which is identical
or similar to the Plaintiff’s trademark.
Judgement: The principle underlying the action for passing off is that no man is
entitled to carry on his business in such a way as to lead to the belief that he is
carrying on the business of another man or to lead to believe that he is carrying on or
has any connection with the business carried on by another man.
Q.2 Offences under I.T Law.
Ans:
Section 65 – Tampering with Computer Source Documents: If any person
knowingly or intentionally conceals, destroys code or alters or causes another to
conceal, destroy code or alter any computer, computer program, computer system, or
computer network, he shall be punishable with imprisonment up to three years, or with
fine up to two lakh rupees, or with both.
Section – 66 Computer Related Offences: If any person, dishonestly, or
fraudulently, does any act referred to in section 43, he shall be punishable with
imprisonment for a term which may extend to two three years or with fine which may
extend to five lakh rupees or with both.
Section 66A – Punishment for sending offensive messages through
communication service: Any person who sends, by means of a computer resource or
a communication device,
 Any information that is grossly offensive or has menacing character;
 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 makes by
making use of such computer resource or a communication device,
 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.

Section 66B – Punishment for dishonestly receiving stolen computer resource or

communication device: Whoever dishonestly receives or retains any stolen computer
resource or communication device knowing or having reason to believe the same to be
stolen computer resource or communication device,shall be punished with
imprisonment of either description for a term which may extend to three years or with
fine which may extend to rupees one lakh or with both.
Section 66C – Punishment for identity theft: Whoever, fraudulently or dishonestly
make use of the electronic signature, password or any other unique identification
feature of any other person, shall be punished with imprisonment of either description
for a term which may extend to three years and shall also be liable to fine which may
extend to rupees one lakh.
Section 66D – Punishment for cheating by personation by using computer
resource: Whoever, by means of any communication device or computer resource
cheats by personating; shall be punished with imprisonment of either description for a
term which may extend to three years and shall also be liable to fine which may extend
to one lakh rupees.
Section 66E – Punishment for violation of privacy: Whoever, intentionally or
knowingly captures, publishes or transmits the image of a private area of any person
without his or her consent, under circumstances violating the privacy of that person,
Explanation – For the purposes of this section:
 “transmit” means to electronically send a visual image with the intent that it be
viewed by a person or persons;
 “capture”, with respect to an image, means to videotape, photograph, film or record
by any means;
 “private area” means the naked or undergarment clad genitals, pubic area, buttocks
or female breast;
 “publishes” means reproduction in the printed or electronic form and making it
available for public;
 “under circumstances violating privacy” means circumstances in which a person
can have a reasonable expectation that–
i. he or she could disrobe in privacy, without being concerned that an image of his
private area was being captured; or
ii. any part of his or her private area would not be visible to the public, regardless
of whether that person is in a public or private place.

shall be punished with imprisonment which may extend to three years or with fine not
exceeding two lakh rupees, or with both.

Section-66F Cyber Terrorism:

Whoever, -
 with intent to threaten the unity, integrity, security or sovereignty of India or to
strike terror in the people or any section of the people by –
 denying or cause the denial of access to any person authorized to access
computer resource; or
 attempting to penetrate or access a computer resource without authorization or
exceeding authorized access; or
 introducing or causing to introduce any Computer Contaminant and by means
of such conduct causes or is likely to cause death or injuries to persons or
damage to or destruction of property or disrupts or knowing that it is likely to
cause damage or disruption of supplies or services essential to the life of the
community or adversely affect the critical information infrastructure specified
under section 70, or
 knowingly or intentionally penetrates or accesses a computer resource without
authorization or exceeding authorized access, and by means of such conduct
obtains access to information, data or computer database that is restricted for
reasons of the security of the State or foreign relations; or any restricted
information, data or computer database, with reasons to believe that such
 information, data or computer database so obtained may be used to cause or
likely to cause injury to the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or
incitement to an offence, or to the advantage of any foreign nation, group of
individuals or otherwise, commits the offence of cyber terrorism.
Whoever commits or conspires to commit cyber terrorism shall be punishable with
imprisonment which may extend to imprisonment for life.
Section 67 – Punishment for publishing or transmitting obscene material in
electronic form: Whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it, shall be punished on first conviction with imprisonment of either
description for a term which may extend to two three years and with fine which may
extend to five lakh rupees and in the event of a second or subsequent conviction
with imprisonment of either description for a term which may extend to five years
and also with fine which may extend to ten lakh rupees.
Section 67A – Punishment for publishing or transmitting of material
containing sexually explicit act, etc. in electronic form: Whoever publishes or
transmits or causes to be published or transmitted in the electronic form any material
which contains sexually explicit act or conduct shall be punished on first conviction
with imprisonment of either description for a term which may extend to five years
and with fine which may extend to ten lakh rupees and in the event of second or
subsequent conviction with imprisonment of either description for a term which may
extend to seven years and also with fine which may extend to ten lakh rupees.
Section 67B. Punishment for publishing or transmitting of material depicting
children in sexually explicit act, etc. in electronic form: Whoever :-
 publishes or transmits or causes to be published or transmitted material in any
electronic form which depicts children engaged in sexually explicit act or conduct
or
 creates text or digital images, collects, seeks, browses, downloads, advertises,
promotes, exchanges or distributes material in any electronic form depicting
children in obscene or indecent or sexually explicit manner or
 cultivates, entices or induces children to online relationship with one or more
children for and on sexually explicit act or in a manner that may offend a
reasonable adult on the computer resource or
 facilitates abusing children online or
 records in any electronic form own abuse or that of others pertaining to sexually
explicit act with children,
 shall be punished on first conviction with imprisonment of either description for a
term which may extend to five years and with a fine which may extend to ten lakh
rupees
and in the event of second or subsequent conviction with imprisonment of either
description for a term which may extend to seven years and also with fine which
may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not
extend to any book, pamphlet, paper, writing, drawing, painting, representation or
figure in electronic form

Section 69 – Powers to issue directions for interception or monitoring or

decryption of any information through any computer resource:
Where the central Government or a State Government or any of its officer specially
authorized by the Central Government or the State Government, as the case may be,
in this behalf may, if is satisfied that it is necessary or expedient to do in the interest
of the sovereignty or integrity of India, defence of India, security of the State,
friendly relations with foreign States or public order or for preventing incitement to
the commission of any cognizable offence relating to above or for investigation of
any offence, it may, subject to the provisions of sub-section (2), for reasons to be
recorded in writing, by order, direct any agency of the appropriate Government to
intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted
any information transmitted received or stored through any computer resource.
The Procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.
The subscriber or intermediary or any person in charge of the computer resource
shall, when called upon by any agency which has been directed under sub section
(1), extend all facilities and technical assistance to –
 provide access to or secure access to the computer resource generating,
transmitting, receiving or storing such information; or
 intercept or monitor or decrypt the information, as the case may be; or
 provide information stored in computer resource.

The subscriber or intermediary or any person who fails to assist the agency referred
to in sub-section (3) shall be punished with an imprisonment for a term which may
extend to seven years and shall also be liable to fine.
Section 69A – Power to issue directions for blocking for public access of any
information through any computer resource:
Where the Central Government or any of its officer specially authorized by it in this
behalf is satisfied that it is necessary or expedient so to do in the interest of
sovereignty and integrity of India, defence of India, security of the State, friendly
relations with foreign states or public order or for preventing incitement to the
commission of any cognizable offence relating to above, it may subject to the
provisions of sub-sections (2) for reasons to be recorded in writing, by order direct
any agency of the Government or intermediary to block access by the public or cause
to be blocked for access by public any information generated, transmitted, received,
stored or hosted in any computer resource.
The procedure and safeguards subject to which such blocking for access by the
public may be carried out shall be such as may be prescribed.
The intermediary who fails to comply with the direction issued under sub-section
(1) shall be punished with an imprisonment for a term which may extend to seven
years and also be liable to fine.
Section 69B. Power to authorize to monitor and collect traffic data or
information through any computer resource for Cyber Security:
The Central Government may, to enhance Cyber Security and for identification,
analysis and prevention of any intrusion or spread of computer contaminant in the
country, by notification in the official Gazette, authorize any agency of the
Government to monitor and collect traffic data or information generated,
transmitted, received or stored in any computer resource.
The Intermediary or any person in-charge of the Computer resource shall when
called upon by the agency which has been authorized under sub-section (1), provide
technical assistance and extend all facilities to such agency to enable online access
or to secure and provide online access to the computer resource generating,
transmitting, receiving or storing such traffic data or information.
The procedure and safeguards for monitoring and collecting traffic data or
information, shall be such as may be prescribed.
Any intermediary who intentionally or knowingly contravenes the provisions of
subsection (2) shall be punished with an imprisonment for a term which may extend
to three years and shall also be liable to fine.
Section 71 – Penalty for misrepresentation: Whoever makes any
misrepresentation to, or suppresses any material fact from, the Controller or the
Certifying Authority for obtaining any license or Electronic Signature Certificate,
as the case may be, shall be punished with imprisonment for a term which may
extend to two years, or with fine which may extend to one lakh rupees, or with both.
Section 72 – Breach of confidentiality and privacy: Any person who, in pursuant
of any of the powers conferred under this Act, rules or regulations made there under,
has secured access to any electronic record, book, register, correspondence,
information, document or other material without the consent of the person
concerned discloses such electronic record, book, register, correspondence,
information, document or other material to any other person shall be punished with
imprisonment for a term which may extend to two years, or with fine which may
extend to one lakh rupees, or with both.
Section 72A – Punishment for Disclosure of information in breach of lawful
contract: Any person including an intermediary who, while providing services
under the terms of lawful contract, has secured access to any material containing
personal information about another person, with the intent to cause or knowing that
he is likely to cause wrongful loss or wrongful gain discloses, without the consent
of the person concerned, or in breach of a lawful contract, such material to any other
person shall be punished with imprisonment for a term which may extend to three
years, or with a fine which may extend to five lakh rupees, or with both.
Section 73. Penalty for publishing electronic Signature Certificate false in
certain particulars:
No person shall publish an Electronic Signature Certificate or otherwise make it
available to any other person with the knowledge that
 the Certifying Authority listed in the certificate has not issued it; or
 the subscriber listed in the certificate has not accepted it; or
 the certificate has been revoked or suspended, unless such publication is for the
purpose of verifying a digital signature created prior to such suspension or
revocation
Any person who contravenes the provisions of sub-section (1) shall be punished
with imprisonment for a term which may extend to two years, or with fine which
may extend to one lakh rupees, or with both.
Section 74 – Publication for fraudulent purpose: Whoever knowingly creates,
publishes or otherwise makes available a Electronic Signature Certificate for any
fraudulent or unlawful purpose shall be punished with imprisonment for a term
which may extend to two years, or with fine which may extend to one lakh rupees,
or with both.
Section 75 – Act to apply for offence or contraventions committed outside
India:
Subject to the provisions of sub-section (2), the provisions of this Act shall apply
also to any offence or contravention committed outside India by any person
irrespective of his nationality.
For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct
constituting the offence or contravention involves a computer, computer system or
computer network located in India.
Section 77A – Compounding of Offences:
A Court of competent jurisdiction may compound offences other than offences for
which the punishment for life or imprisonment for a term exceeding three years has
been provided under this Act. Provided further that the Court shall not compound
any offence where such offence affects the socio-economic conditions of the
country or has been committed against a child below the age of 18 years or a woman.
The person accused of an offence under this act may file an application for
compounding in the court in which offence is pending for trial and the provisions of
section 265 B and 265C of Code of Criminal Procedures, 1973 shall apply.
Section 77B –Offences with three years imprisonment to be cognizable:
Notwithstanding anything contained in Criminal Procedure Code 1973, the offence
punishable with imprisonment of three years and above shall be cognizable and the
offence punishable with imprisonment of three years shall be bailable.
Section78 – Power to investigate offences:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a
police officer not below the rank of Inspector shall investigate any offence under
this Act.

Q.3 Why was Section 66 (A) of the I.T Act repealed?

Ans: In a landmark judgment upholding freedom of expression, the Supreme

Court struck down Section 66A of the amended Indian Information Technology
Act, 2000 (“IT Act”), a provision in the cyber law which provides power to arrest
a person for posting allegedly "offensive" content on websites. The apex court
ruled that the section falls outside Article 19(2) of the Constitution, which relates
to freedom of speech, and thus has to be struck down in its entirety.
Section 66A of the IT Act defines the punishment for sending “offensive”
messages through a computer or any other communication device like a mobile
phone or a tablet. A conviction can fetch a maximum of three years in jail and a
fine.
The advent of the controversy
The first petition came up in the court following the arrest of two girls in
Maharashtra by Thane Police in November 2012 over a Facebook post. The girls
had made comments on the shutdown of Mumbai for the funeral of Shiv Sena
chief Bal Thackeray. The arrests triggered outrage from all quarters over the
manner in which the cyber law was used. Most cases of arrest were reported in
2012. Jadavpur University professor Ambikesh Mahapatra was arrested for
forwarding caricatures on Trinamool Congress chief Mamata Banerjee on
Facebook. Activist Aseem Trivedi was arrested for drawing cartoons lampooning
parliament and the constitution to depict their ineffectiveness.
The grounds for the challenge
While the objective behind the amendment was to prevent the misuse of
information technology, particularly through social media, Section 66A came with
extremely wide parameters, which allowed whimsical interpretation of the
provision by law enforcement agencies. Most of the terms used in the section have
not been specifically defined under the IT Act. The petitioners argued that it was a
potential tool to curtail freedom of speech and expression guaranteed under the
Constitution and going far beyond the ambit of “reasonable restrictions” on that
freedom.
Validity struck down
Given the above debate, the Supreme Court struck a body blow for the basic right
of free expression by striking down this provision in its entirety. The Hon’ble
Supreme Court observed,
“Section 66A is cast so widely that virtually any opinion on any subject would be
covered by it, as any serious opinion dissenting with the mores of the day would
be caught within its net. Such is the reach of the Section and if it is to withstand
the test of constitutionality, the chilling effect on free speech would be total.”
The Hon’ble Supreme striking down the validity of Section 66A of the IT Act
held, “We, therefore, hold that the Section is unconstitutional also on the ground
that it takes within its sweep protected speech and speech that is innocent in nature
and is liable therefore to be used in such a way as to have a chilling effect on free
speech and would, therefore, have to be struck down on the ground of
overbreadth.”

Q.4 Case 12: Hacking

State: Karnataka

City: Bangalore

Sections of Law: 66 & 67 of IT Act 2000.

Background: The complainant approached the police stating that she had been
receiving obscene and pornographic material at her e-mail address and mobile
phone. She stated that this person appeared to know a lot about her and her family
and believed that her e-mail account had been hacked. Investigation The
investigating team using a different e-mail ID tried to chat with the accused using
the complainant’s e-mail ID. Subsequently the investigating team was able to
identify the ISP address of the computer system being used and it was tracked to
an organisation in Delhi. The investigating team visited the company and through
its server logs was able to identify the system from which the obscene material
was sent. Using forensic disk imaging and analysis tools the e-mails were retrieved
from the system. The residence of the accused was located and the hard disk of his
personal computer was seized. On the basis of the evidence gathered the accused
was arrested.

Current status The case has been finalised and is currently pending administrative
approval.
Judgement:
1. In this case the complainant had received obscene and pornographic material
at her e-mail ID and through her mobile phone from an unknown person. The
sender had sent some objectionable, nude, sexually explicit material and some
indecent photos and videos on her e-mail ID.
2. The sender of the e-mails seemed know a lot about her as well as her family.
The complainant feared that her e-mail account had been hacked. The
complainant was annoyed after receiving such obscene photos and videos on
her e-mail ID. Thus the complainant lodged a police complaint. An F.I.R was
registered u/s 66 and 67 of the IT Act.
3. Section 66 of the IT Act states that – “If any person, dishonestly or
fraudulently, does any act referred to in section 43, he shall be punishable with
imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.”
Explanation. -For the purposes of this section, -
a) the word "dishonestly" shall have the meaning assigned to it in section 24 of
the Indian Penal Code (45 of 1860);
b) the word "fraudulently" shall have the meaning assigned to it in section 25
of the Indian Penal Code (45 of 1860).]
4. Furthermore, section 67 of the IT Act states “Punishment for publishing or
transmitting obscene material in electronic form. -Whoever publishes or
transmits or causes to be published or transmitted in the electronic form, any
material which is lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons who are likely, having regard to
all relevant circumstances, to read, see or hear the matter contained or
embodied in it, shall be punished on first conviction with imprisonment of
either description for a term which may extend to three years and with fine
which may extend to five lakh rupees and in the event of second or subsequent
conviction with imprisonment of either description for a term which may
extend to five years and also with fine which may extend to ten lakh rupees.”
5. As the obscene material has been transmitted the act would attract section S.66
as well as S.67. It can be seen that u/s 67 of the IT Act, what is sought to be
punished as publication or transmission of materials that is obscene in nature
 so as to be lascivious or which tends to deprave and corrupt persons who are
likely to have access to the same.
6. Thus, the material in the said e-mails can be stated to be categorized as
lascivious or such which would deprave or corrupt person’s mind who may
have access to such e-mail. Thus, the accused is held guilty u/s 66 and 67 of
the IT Act and is liable for an imprisonment of five years and a fine amounting
to ten lakh rupees.