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Offensive SMS can lead to 2 years in jail

14 February 2007

With mobile phones virtually taking over the role of a personal computer, the proposed amendments to the Information Technology Act, 2006, have made it clear that transmission of any text, audio or video that is offensive or has a menacing character can land a cellphone user in jail for two years. The punishment will also be attracted if the content is false and has been transmitted for the purpose of causing annoyance, inconvenience, danger or insult.

And if the cellphone is used to cheat someone through personation, the miscreant can be punished with an imprisonment for five years.

The need to define communication device under the proposed amendments became imperative as the current law is quiet on what kind of devices can be included under this category. The amended IT Act has clarified that a cellphone or a personal digital assistance can be termed as a communication device and action can be initiated accordingly. Accentuated by various scandals that hit the country during the past two years, including the arrest of the CEO of a well-known portal, the government has also introduced new cyber crimes under the proposed law. The amended Act, which was placed before the Lok Sabha during the recently concluded winter session, has excluded the liability of a network service provider with regard to a third party’s action. However, it has made cyber stalking, cyber defamation and cyber nuisance an offence. Anybody found indulging in all these offences can be imprisoned for two years.

The proposed changes have also sought amendments in the form of insertions in the Indian Penal Code, thereby declaring identity theft an offence. If a person cheats by using electronic signature, password or any other unique identification feature of any other person, he shall be punished with imprisonment for two years and also liable to fine.

Asking for an insertion in the Indian Penal Code as Section 502A of the law, the proposed amendments have said that whoever intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, shall be punished with two years of imprisonment and fine of Rs 2 lakh. The private parts can be either naked or undergarment clad public areas.

Making the law more technologically neutral, the amended provisions have included authentication of electronic record by any electronic technique. At the moment, electronic records can be authenticated by just digital signatures, the public key infrastructure technology (PKI).

With the new provisions, however, biometric factors like thumb impression or retina of an eye shall be included as techniques for authentication.

Even as the law makers have tried to cover up for the lapses of the current IT Act, they seem to have made it liberal by way of reducing the punishment from three years to two years. With these changes, a cyber criminal will now be entitled to bail as a matter of right, as and when he gets arrested.