UN Cybercrime Treaty and Freedom of Speech - UPSC Current Affairs
Jun 23, 2022
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Context
About UN Cybercrime Treaty
Section 66A of IT ACT
Section 79 of IT Act
India’s Stand in United Nations
Implications of India’s stand-in UN
Way Forward
Context
- The UN treaty on “countering the use of information and communications technologies for criminal purposes” had been convened to negotiate in the second session of the United Nations Ad Hoc Committee (AHC).
About UN Cybercrime Treaty
- The UN General Assembly adopted a resolution to draft a global comprehensive cybercrime treaty in December 2019, which was first proposed by Russia.
- The new UN Cybercrime treaty could obsolete the Budapest Convention, drafted by the Council of Europe, and joined by the United States and Japan.
- The Budapest Convention or the Council of Europe’s (CoE) Cybercrime Convention, is the first international treaty that seeks to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations.
- India, Russia, and China are not part of the Budapest Convention.
- Russia opposed the Budapest Convention, as it believes that providing investigators access to computer data across borders violates national sovereignty.
- The new UN Cybercrime treaty is also opposed by European Union Members along with UK and US, making the process complex and time-consuming before the implementation of the new cybercrime treaty.
Also read: Agnipath Scheme
Section 66A of IT ACT
- Section 66A of Information Technology Act, 2000, gives powers to the government to punish an individual for allegedly “offensive and menacing” online posts through a computer or any other communication device.
- It provided for punishment of three years in jail.
- Section 66 A was breaching the fundamental right, “the freedom of speech”, thus declared unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2)” by the Supreme court.
Section 79 of IT Act
- Section 79 protects any intermediary for any third-party information, data, or communication link made available or hosted on its platform.
- The SC Bench in Shreya Singhal v. Union of India also read down section 79– defining key rules for the relationship between governments and commercial internet platforms, the bench opened up the platform to the possibility of any & all penal action.
India’s Stand in United Nations
- India made a formal submission for criminalizing “offensive messages” that fall under Section 66A of the Information Technology Act, 2000 in the UN conference on cybercrime in Vienna.
- The submission challenges the Supreme Court decision that declared Section 66A unconstitutional in 2015 in Shreya Singhal v. Union of India for having a “chilling effect on free speech”.
Implications of India’s stand-in UN
- In case India’s suggestion will be accepted in the conference, Section 66A would spring back to life and can be used to curb free speech once again & this amounts to a ‘backdoor’ attempt at legislation.
- In order to implement any international law in India, a dualist state, Parliament, will be required to enact legislation using Article 253 of the Constitution.
Way Forward
- The act of the Indian government to strike down the decision made by its own apex court for breaching fundamental rights in an international treaty is yet to be understood.
- Recent trends of hate propaganda, targeting and trolling of women, rape, and murder threats are some of the examples which suggest that there is a need of controlling online messaging and information platforms.
- Section 66A was struck down due to its vagueness, however a new law addressing the rising issues of misinformation shall be enacted to put an end to offensive speech on online platforms.
- Freedom of speech is an integral democratic principle; however, it must not cost the dignity of the individual, security of the nation, and harmony of the society.
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| Additional Information Article 19(1)(a): “All citizens shall have the right to freedom of speech and expression” but are subject to Article 19(2). Article 19(2): It stipulates “reasonable restrictions” imposed on the right to freedom of speech and expression, “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 offense”. Article 253: The article states that the “power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention”. The Information Technology Act, 2000: The Indian Parliament notified the IT Act in 2000, the primary law in India that deals with cybercrime and electronic commerce. The Intermediary Guidelines Rules 2011 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are secondary or subordinate legislation of the IT Act. A Cyber Appellate Tribunal was established to resolve disputes under this law. A legal framework for electronic governance was also provided, that gives recognition to electronic records and digital signatures. The Act directed the formation of a Controller of Certifying Authorities to regulate the issuance of digital signatures. Some sections of the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891, and the Reserve Bank of India Act, 1934 are amended to make them compliant with new technologies in accord with the IT Act. Section 66A came in 2008 as a major amendment that penalized sending "offensive messages". |
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