Centre may tweak IT Act, bring in new penalties
The central government is considering amendments to the information technology act, 2000 to bring in new penalties, such as fines, for social media companies and individuals, in addition to retaining some of the criminal provisions that are part of the law, officials familiar with the matter have said.
According to these people, the plans are part of an overhaul of the mainstay law to deal with information technology in an effort to update the legal framework to keep in step with developments in the area.
“At present, most of the provisions only have penal consequences,” said an official familiar with the matter. “One of the major gaps in implementation of IT act is that it wades into criminal liability straightaway. The case is not always one of wilful illegality, wherein a crime may have been committed but may not be intentional. You have to penalise but not convict them.”
The official added that the ministry is also working to figure what denominations should be fixed for the offences and, while the penal liabilities include fines, the civil ones will be continuous and free of criminal liability.
According to this person, sections where such fines are under consideration are section 66, which allows the government to impose a fine of up to ₹2 lakhs and imprisonment for life for participating in cyber terrorism, cheating, and identity theft. Section 67 too is being studied – this part allows the government to impose a fine up to ₹10 lakh for publishing or transmitting explicit content, including those relating to child sexual abuse.
A second official stressed that the discussions were at a preliminary stage. “It would be a little premature to say how the discussions will pan out,” this person said, asking not to be named.
“These are internal conversations taking place at the ministry. At present, new IT rules have been introduced. They form the framework that intermediaries need to follow.”
The official added that the amendments would take time to be understood and introduced.
At present, sections 43-46 of the IT act allows for civil penalties for which compensation may also be paid to victims. These include provisions pertaining to personal data protection and hacking.
Supreme Court lawyer and founder of Cybersaathi, NS Nappinai, said that the Act already provides for an adjudicating officer (AO) under section 46 who can impose civil fines up to ₹5 crore. The designated officer for the post is the secretary of the ministry of electronics and information technology, who has the powers of a civil court.
Nappinai added that “there are substantial civil penalties under the extant IT act”. “Even these have remained dead letters as a separate office of AO has not been formed 21 years after passing of the IT Act in 2000 and the ad hoc delegation to the state secretaries, ministry of IT continues till date,” she said.
“Further, the office of the Cyber Appellate Tribunal was closed and the jurisdiction for appeals from AOs was moved to TDSAT. Any proposed changes ought to focus and ensure effective enforcement,” she added.
Nappinai cautioned that mere additions, therefore, of civil penalties would not suffice and that there has to be effective enforcement. “Whilst additions to civil penalties are welcome care should be taken to ensure that first principles are met as also the proportionality test emphasised by the Supreme Court in the case of Puttaswamy,” she said.
As for revising fine denominations, Nappinai said that in 2019, a committee under the ministry of home affairs submitted its report raising the importance of amendments to IT Act. “This also included suggestions for clarity and specificity in the offences covered under section of the 43 IT Act, while also providing for heavier penalties for larger violations, as one size may not fit all,” she said.