Sharing of message is not an offence in IPC
Retweeting, forwarding or sharing of offensive messages on social media as such is not at all declared as a criminal offence in India. However, there are some provisions, under the Information Technology Act (IT Act) and the Indian Penal Code (IPC), which may put criminal liability on the person who does such an act.
The Section 67 of the IT Act provides for punishment for publishing or transmitting obscene material in electronic format. The punishment under the law may extend to three years jail term and fine. In the case of second or subsequent conviction, then the punishment would be five year’s imprisonment and even extended fine.
IPC & IT Act provide some provisions
Similarly, the Section 67A of the IT Act provides for punishment for publishing or transmitting of material depicting children in sexual act in electronic form. The Section provides for an imprisonment which may extend to five years and fine. In the event of second or subsequent conviction, the imprisonment would be for seven years and an extended fine.
The IPC includes certain provisions, such as Sections 153A, 153B, 292, 295A, 499 etc, which can be invoked against a person when he shares any derogatory or offensive message in the cyberspace. These offences relate to promotion of communal hatred, obscenity, hurting of religious sentiments and defamation.
The Section 295A of the Indian Penal Code (IPC) states, “Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with a fine and/or imprisonment.”
Madras HC held sharing means endorsement
In 2018, the Madras High Court ruled in an order ( click here to view the order ) on an anticipatory bail application that sharing or forwarding a message in social media is equal to accepting and endorsing the message. Therefore, the bail plea of journalist turned BJP leader S Ve Shekher, who allegedly shared a derogatory Facebook post on women journalists, was rejected by the court.
In the above said order, the court observed, “No one has any right to abuse women and if done it is a violation of rights. When calling a person with community name itself is a crime, using such unparliamentarily words is more heinous. Words are more powerful than acts. When a celebrity-like person forwards messages like this, the common public will start believe it that this type of things are going on”.
Apex Court has not decided the issue so far
Mr Shekher’s Special Leave Petition (SLP) against the decision was disposed of by Apex Court on June 1, 2018 as the State submitted that chargesheet in the matter was filed. Therefore, the SC said that Shekher would appear before the Trial Court, and he can seek regular bail. Hence the larger question relating to criminal liability for forwarding a post remained undecided by the apex court.
Trial Court will have to decide the issue
Because of the absence of a direct legal provision and an authoritative interpretation from the apex court, it is now left for the trial courts to decide the question of criminal nature of such forwarding and retweeting of messages, based on the facts and circumstances of each case.
The Trial Court, as a first Court of instance, has to determine whether retweeting would attract the liability of defamation under the IPC.
To make it an offence law need to be enacted
To make retweeting or sharing or forwarding other’s posts on social media a criminal offence, the legal provision has to be enacted. There should also be precautionary measures to ensure that such a provision should not be misused by law enforcement agencies in any manner.
