ASCL Cyber Law Bulletin
26th May, 2010
Sonia, a resident of Zirakpur town near Chandigarh, has been arrested for allegedly sending nearly 170 lewd sms messages to her former boss Anu Sharma.
Anu had been getting these messages on her cell phone for the last few months.
It appears that Sonia was earlier working in a private company run by Anu and was allegedly sending the mesages as she had been fired from her job.
Applicable law in India
The amended Information Technology Act provides for imprisonment upto 3 years for sending offensive messages.
Section 66A is titled “Punishment for sending offensive messages through communication service, etc.” and 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; or
(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.
Explanation. – For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
Explanation of applicable law
Section 66A penalises the following being sent through email, sms etc:
(1) information that is grossly offensive or has menacing character; or
(2) false information sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
Illustration: Pooja is Sameer’s ex-girlfriend. After their break-up, Pooja married Tapan, who is unaware of Pooja’s past relationship with Sameer. Angry over this issue, Sameer sends an email to Pooja, in which he threatens that unless Pooja gives him Rs 1 lakh, he will spread the news that Pooja had been pregnant before marriage.
Pooja does not give him the money. Sameer sends emails to all of Pooja’s friends and relatives telling them that Pooja had been pregnant before marriage.
If the information about Pooja’s pregnancy is true then Sameer will not be liable under this section. If this information is false, then Sameer will be liable under this section.
This section also penalises the sending of emails (this would include attachments in text, image, audio, video as well as any additional electronic record transmitted with the message.) for the following purposes:
(1) causing annoyance, or
(2) causing inconvenience, or
(3) to deceive or to mislead about the origin of the messages.
Illustration: Sameer sends emails to thousands of customers of the NatCash Bank. These emails request the recipient to click on a link and enter their online banking username and password at a website that appears to be that of the Bank but in reality is a fake. Sameer has spoofed the emails in such a way that they appear to have originated from the NatCash Bank official email address. He would be liable under this section.