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While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalised (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. Similarly, different kinds of causing danger are taken care of in ss.188, 268, 283, 285, 289, and other provisions.

However, the question arises whether you need a separate provision in the IT Act for that. Similarly with the other "purposes" listed there, if, for instance, a provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like "annoyance", and should not be made "persistent". 505(1) of the IPC suffices for hoax bomb threats, so you don't need a separate provision in the IT Act).

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The current equivalent laws in the UK are the Communications Act, 2003 (s.

127) and the Malicious Communications Act 1988 (s.1) for both of which the penalty is up to 6 months' imprisonment or to a maximum fine of £5000 or both.

While this unconstitutionality could be cured by better, narrower wording, even then one would need to ensure that there is no redundancy due to other provisions in other laws.

In s.66A(a), the question immediately arises whether the information that is "grossly offensive" or "menacing" need to be addressed at someone specific and be seen as "grossly offensive" or "menacing" by that person, or be seen by a 'reasonable man' test.

The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required.

Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section.(The version introduced in Parliament in 2006 had only 66A(a) and (b).) This was done in response to the observation by the Standing Committee on Information Technology that there was no provision for spam.Hence it is clear that this is meant as an anti-spam provision.Section 66A of the Information Technology Act, which prescribes 'punishment for sending offensive messages through communication service, etc.' is widely held by lawyers and legal academics to be unconstitutional.In this post Pranesh Prakash explores why that section is unconstitutional, how it came to be, the state of the law elsewhere, and how we can move forward.Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different from the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Punishment for sending offensive messages through communication service, etc., 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;(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,(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 messagesshall be punishable with imprisonment for a term which may extend to three years and with fine.


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