Alias Intimidator
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The Legislative response to Grossly Offensive or menacing emails and SMS
The electronic communications has changed the way the world communicates and also the communication habit. The communication via SMS or electronic email manifests the freedom of speech and expression guaranteed by our constitution to every citizen [Article 19 (1) (a)], however, the freedom is not absolute, it is a qualified right, as constitution also sets significant limitations on that freedom, as the state may by law effect such reasonable restrictions as it deems necessary or expedient in the interest of the security of the state, the sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Due to the misuse of the modern communication device and increased incidents of sending hate messages, threatening SMS, threatening Email to politicians, VIPs in politically charged environment, the legislature introduced Section 66A Information Technology (Amendment) Act, 2008 notified w.e.f. 27th October, 2009 which reads as follows:-
"66A. 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; or
(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 messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
‘Explanation.— For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message."
Thus, the legislative intent was to make act of sending SMS, emails, or posting of any messages via communication device or computer resource which is grossly offensive or of menacing character or any information which the sender knows to be false but posted for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity etc. or disguised or anonymous emails or fake emails to cause annoyance.
"Grossly offensive or menacing character": However, when an information or message shall be termed as grossly offensive or having menacing character has not been defined or explained in the Section 66A IT Act which leaves room for controversy. Interestingly, the Section 66A IT Act is deeply influenced and probably originated from Section 127 of the Communication Act 2003, an UK Legislation.
The wordings of Section 127 of the Communication Act, 2003 are as follows:-
"127 Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42))."
Thus, the Communications Act 2003 section 127 covers the sending of grossly offending or menacing messages via public electronic communications network. Section 127(1)(a) relates to a message etc that is grossly offensive or of an indecent, obscene or menacing character and should be used for indecent phone calls and emails. Section 127(2) targets false messages and persistent misuse intended to cause annoyance, inconvenience or needless anxiety. The judgment of DPP v. Collins ([2005] EWHC 1308 (Admin)), an UK High Court decision sheds some light to what is "Menacing Character", in which it observed that "A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out. Obscenity and indecency, too, are generally in the eye of the beholder; but the law has historically treated them as a matter of objective fact to be determined by contemporary standards of decency."
Further, House of Lords has clarified what makes a message sent by means of a public electronic communications network "grossly offensive" and therefore capable of amounting to a crime under the Communications Act 2003 ("Act") in Director of Public Prosecutions (Appellant) v. Collins (Respondent) on appeal from [2005] EWHC 1308 (Admin). Their Lordship held that "to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates."
The instances/cases of offending emails, SMS
Cases abroad:
• A blogger who "let off steam" about the way he was treated by police was convicted of posting a grossly offensive and menacing message. Gavin Brent, 24, from Holywell, Flintshire, was fined £150 with £364 costs by magistrates at Mold. The court heard Brent had been charged with theft offences - which have yet to be dealt with - and posted a message about a police officer's new-born baby. Magistrates said any reasonable person would find the comments menacing.
• A man was found guilty for tweeting airport bomb threat. His tweet, "Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!" The tweeter Paul Chambers was actually just kidding. However, the police arrested him and he was charged with sending by a public communications network a message that was grossly offensive or of an indecent, obscene or menacing character contrary to Section 127 of the Communications Act 2003. A district judge at Doncaster Magistrates Court ruled that the Tweet was ''of a menacing nature in the context of the times in which we live''. Chambers has been ordered to pay a £385 fine, a £15 victims surcharge and £600 costs.
• A man from South Yorkshire who sent offensive, threatening and abusive emails directed at children's social workers in East Sussex was convicted. The accused sent number of very disturbing, obscene and threatening emails in the Children's Services department. On the complaint of Children's service department, the police investigated and the man behind the messages was traced and charged with offences under section 127 of the Communications Act.
India
The threatening emails and SMS were hitherto covered under Section 506 Indian Penal Code. However, with the insertion of Section 66A IT Act, in force w.e.f. 27th October, 2009, these offending emails, SMS are covered under IT Act.
• Threatening Email to Naveen Patnaik, Chief Minister of Orissa: The news report shows that various threatening emails have been sent to the Chief Minister, Orissa Mr. Naveen Patnaik. A person was arrested and the investigation revealed that though the e-mail was sent in the name of one Prakash Behera alias Babuli Behera, the police nabbed his cousin Pratap Behera (35) of Astarang in Puri who confessed to the crime during interrogation. The investigation revealed that the Prakash Behera has no knowledge of Internet. The investigsation revealed that Pratap's family had some land dispute with Prakash's family and to settle a score Pratap created an e-mail ID in the name of Prakash and sent the mail to the Chief Minister. The case was registered u/s 66A IT Act, r/w 506 IPC.
• Man arrested for making hoax call: A 25-year-old man was arrested on 9TH May, 2010 for making an anonymous call warning that Delhi Chief Minister Sheila Dikshit's life was in danger. Veer Singh, a resident of Farsh Vihar in east Delhi, allegedly made the call Thursday to implicate a man who was harassing him to repay his dues. He had stolen a mobile phone from Narela in outer Delhi to make the call to the police control room and then called up the other man. Veer Singh thought the police would track down the other person and arrest him in connection with the death threat to the Delhi chief minister.
• Threatening SMS sent to Shashi Tharoor, Ex-Union Minister for State and other Parliamentarians: The accused person "A" was having animosity towards other person "B" in a love triangle, and the A in order to frame B, impersonated himself as B and send threatening SMSs to parliamentarians. The various FIRs were registered u/s 66A IT Act, r/w 506, 507, 509 IPC was registered in various police stations in Delhi, Haryana and Himanchal Pradesh.
The aforesaid incidents revealed that the offending SMS, emails were generally send by the accused persons via electronic medium be it mobile phone or computer network to implicate others. Thus, the alleged act of sending SMS via mobile phone or offending or threatening Email involving criminal intimidation including danger and obstruction are squarely covered under Section 66 A of Information Technology Act, 2000 and there is no application of Section 506 IPC to the alleged act. It would be pertinent to mention here that the bail of the accused person who sent threatening email to CM Naveen Patnaik was denied because of the applicability of Section 506 IPC which in State of Orissa is non bailable. However, the invoking of Section 506/507 IPC to the alleged act is not correct by virtue of Section 81 of the Information Technology Act, 2000 which gives an overriding effect to the provisions of the IT Act over the other Acts including the Indian Penal Code. It clearly states that, "the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." Thus, this section of the Information Technology Act 2000 if read with Section 66A makes the legislative mandate very clear & loud that in matters pertaining to threat or criminal intimidation via a computer resource or communication device, the IT Act 2000 would have an overriding effect over other law including the Indian Penal Code in view of the clear mandate of Section 81 IT Act. The Section 81 IT Act, is reproduced below:-
"81. Act to have overriding effect.
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970."
Even otherwise, Hon'ble Apex Court in case titled as Suresh Nanda Vs. C.B.I. in Criminal Appeal No. 179 of 2008 in SLP (Crl.) No. 3408 of 2007 held that the Special Act prevails over General Acts. The author has successfully represented the accused persons in the Shashi Tharoor SMS case and secured their bail by successfully arguing that in view of the specific provisions in the I.T. Acts, 2000, which are bailable in nature, the same would have the overriding effect by virtue of non obstante clause in Section 81 IT Act and the other offences of the IPC have been added by the prosecution merely for the purpose of making the offence non bailable in nature and they are not applicable. The author argued in length and stated vehemently before the Session Court that as the result of the investigation done by the Delhi Police which clearly reveals that the alleged act of threatening, criminal intimidation and endanger was with the sole intention to harass the other person involved in love triangle and clearly, there was no intention to execute the threat or commit extortion which is one of the essential ingredients to bring home the offences mentioned under Section 506 IPC. Even otherwise the offence u/s 506 IPC in Delhi is bailable. Further, no overt act has been alleged to be done by the accused persons which show any intention to execute the threat or extortion.
Neeraj Aarora
(Advocate)
About the Author
I am a Law graduate, Cost Accountant & Certified Fraud Examiner, presently
- Practicing as an advocate in Delhi Courts dealing with cases specially relating to Criminal Law, Cyber Law etc.
- Providing consultancy on the matter relating to the detection, prevention of offence relating to cyber law, collection of digital evidence for legal purposes, remedial measures and filing & followup of cases in the court and other legal forum.
- Conducting arbitral proceedings in MCX Exchange and other matters.
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Ibori's London Dilemma and Uduaghan's Asaba Ambition
I must necessarily start by congratulating Goodluck Jonathan for listening to me on the matter of Ibori's London trial. In "Any Deal between Jonathan, Ibori-Uduaghan" recently published by various media organs home and abroad I opened that topic this way: "We all love Goodluck Jonathan, and yours sincerely has arguably done more pro-GEJ articles (published home and abroad) than anybody since Atiku emptied his political campaigns of sanity. But honestly the issue of Jonathan's sudden silence about Ibori and equally sudden romance with Uduaghan, who hitherto has fought against him because of Ibori, his cousin and mentor, a man sane community of humanity and mankind want prosecuted without any successful buy off as in other cases before now, is a matter of hurting concern. Therefore, I beg to write differently today!" And I sailed out to tell Jonathan why Ibori must first go to London NOW to be tried and the implications for Deltans and for his (Jonathan's) ambition if this was not done NOW. We do not intend to reproduce that work here except to say presently that it recommends itself as a must read anytime, and to appreciate Jonathan's prompt reaction to it. Before we go ahead I must necessarily here preempt the purpose of this piece which is that: opportunity now beckons Deltans not only to renew their mandate for Ogboru in the April 26, 2011 gubernatorial election in Delta State but to ensure that no one frustrates this mandate this time around. Deltans have had enough of rubbish and international disgrace. All that must come to an end now. What follows immediately after now down to the concluding posers justify this position. The very disgusting ‘gist' is that Ibori among other things now has to answer for Deltans $34 million or about N5 billion in far away London, being part of our monies (something perhaps like a tip of the iceberg) he stacked up in the U.K. We are blank for now about the total sum stacked up in other places say South Africa (where grapevine has said so much about), UAE (that is now his home after the twelve years or so of Ibori-Uduaghan siege on our treasuries). And you may go on and on. Our monies! How inexpressibly sad! If you remember that Emmanuel Uduaghan was secretary to Ibori's so-called government you do not need to be told that Ibori couldn't have done all the profligately financial acts in government without the secretary to his government. The office of the SSG is, in fact, the engine room of government. Whatever it allowed is carried out; whatever it does not allow is not done; whatever is done is known to it; and whatever it covers actually remains buried! Besides it being the summary of governance, it is supposed to be the chief secretariat to all secretariats including the finance ministry. And if you also remember that before Ibori left his usurped office (and that was because of the collapse of OBJ's third term agenda which Ibori and colleagues supported because it was their joint agenda actually) he ‘anointed' and then ‘appointed' Uduaghan to take over the office of governor from him ostensibly to cover his (Ibori's) track, then you may take it from me that Uduaghan is more than an accomplice in Ibori's games: He (Uduaghan) was actually the strength and confidence of Ibori in all that we now know of Ibori from when Uduaghan became his SSG to date. And it may even be more than that. I have come to take grapevine very seriously in the matter of Ibori and now of Uduaghan. Almost all that has been reaching us over the years as news about Ibori have actually been thoroughly detailed on our streets in Delta; that is, before they became banner headlines and screaming headlines. The sweeping news right now (and it has really been there for more than a year now) is that Uduaghan is stinking rich. Almost unbelievable things are freely told on the streets about the wealth of his family with specific mention of his young children. Well, there is no smoke without fire they say. Ibori's ‘fire' came first as smoke. And we told the world repeatedly that there is fire under that smoke; when it became inferno and conflagration we also wrote, but it took so many years and, now, with the help of London for us to believe. Meanwhile, some of us did these at the expense of our lives and businesses. There were serious attempts to cow us. When we felt the heat of the threat some of us went under; yours sincerely for instance made a quick and fast one to Lagos and remained under cover for a long time. I mean in this battle to free Delta! My losses? Wait a minute! Today, the threat seems again to be coming from Uduaghan's camp. Recently Uduaghan, through his Consultant, Public Communication and Strategy responded to one of my widely published piece with a full page advertorial in the Vanguard of February 8, 2011. I countered his response with a series of four articles. In one of those counter-responses, "Ogboru: Uduaghan's Rejoinder and Grammar" which, again, was widely published home and abroad I wrote inter alia: "The last word Mr. Consultant abused is provoked. He said conclusively, in bold letters and with an exclamation: "We refuse to be provoked!" By doing a rejoinder are Uduaghan and Mr. Consultant not provoked already? What is ‘provoked', and what is ‘rejoinder'? Does he know that provoke means to incite something, cause activity, stir somebody to response or to elicit response? Has my piece not caused them to do all of that already: incited them, caused them to act, stirred their response and elicited their response? The piece prompted or provoked them to react. They acted! Okay, let's take it they mean they do not want to feel angry, another meaning we can associate with provoke. But that was what they actually revealed all through the full-page ad. They were angry and agitated all through. They paraded irritation throughout from intro to final period! "But hold it: Mr. Consultant may mean another level of anger that reveals itself in assassination and bloodshed! Because this has been the rule in governance in Delta State since 1999 and which made some of us fled the state, and that included yours sincerely who started writing then from Lagos as a result and that before he could settled down again in Delta State he has lost all his businesses in the state, the Nigerian Police and SSS must here be notified! For our sake let the Federal Government security agencies endeavor to be on the qui vive (alert and vigilant). But let this be well understood however: We refuse to be cowed! After all the one (their grandmaster) who then made us run for our dear lives is today receiving just retribution just as his flight violently collided with the long arm of the law and dumped him at ‘point of no return'". So, after this present attempt to scare and intimidate us, will the fire underneath the smoke that grapevine talks about be seen by the world like Ibori's own did? Has it even become an inferno? Who knows! And if we must not believe grapevine yet, (even though it also says that EFCC is playing it cautiously with the man till some appropriate time) what can we say about the news implicating or indicting Uduaghan in the Ibori London saga. Street Journal reported it then, and in my 32page published document, "A-Z of Delta State Sorry Story!" I said Street Journal did report it, and I went ahead to draw from it; and I must here restate: "The Street Journal (Sunday, 07 November 2010) reported that Uduaghan is indicted in Ibori's money laundering case. It states that ‘the present Governor of Delta State, Dr. Emmanuel Uduaghan has been named as one of the accomplices of his predecessor in the on-going money laundering trial.' The prosecuting team led by Ms. Sasha Wass in her closing statement before the London Southwark Crown court on the morning of Saturday, 06 November 2010 told the court ‘that Dr. Uduaghan, SSG in Chief Ibori's regime, facilitated some illicit deals. The Lead Prosecutor, Ms. Sasha Wass disclosed to the court that Dr. Uduaghan authorized most of the heavily over-inflated contracts that went to one of Ibori's front companies (Sagicom Ltd). She also told the court that most of the contracts were for N1.8 billion or above, including for the supply of fine wine and beverages. Dr. Uduaghan was also alleged by the British prosecutors to have personally used his office as the Secretary to the State Government to authorize payments that were made to Christine Ibie-Ibori, sister to former Governor James Ibori.' "According to the Lead Prosecutor, the payments made included one of £69,000 and another of £79,000. Reference was also made to N39 million in cash, which was allegedly delivered to James Ibori's sister in two boxes. The prosecutor said that a company called KOLN was used to transfer funds out of Nigeria for the benefit of the governor's sister, and into her account. It is an open secret that Governor Uduaghan and Chief Ibori enjoyed a very good relationship while they served in government together. Street Journal ‘also gathered that while Chief Ibori's country home has been repainted, the Delta State Government had already planned a rousing welcome for him in anticipation that he would be allowed to return to Nigeria from Dubai. The expectation however fell through as the Dubai court hearing his case ruled in favour of Ibori's extradition.'" In the light of this work so far what can we say to the following posers because whether relevant Federal agencies like it or not they are posers Delta electorate will be answering on the 26th of April 2011? Should the Secretary to the Government of Ibori be allowed to govern Delta when under his watch as Secretary to government Ibori made mess of us all or when under his watch as Secretary to government he allowed or ostensibly connived with Ibori to mess us up. Should Uduaghan be allowed to govern Delta when London is fighting the battle he (Uduaghan) swept under the carpet as Secretary to government? Can the Secretary to the Government of Ibori allow Ibori to mess our treasuries this much, and him not being a partaker or beneficiary in anyway? Should Ibori be accounting for ‘missing' monies from our treasuries when Uduaghan was Secretary of government and at the same time allow Uduaghan to sit over that treasury today as helmsman? Should Ibori be facing the battle of his life (a battle that has already consumed many) and Uduaghan who is already implicated in the same matter be allowed to have his usual way here on April 26, 2011 so that he can extend some dubious immunity, and not go to either exonerate himself in London or otherwise? Should Emmanuel Uduaghan, the cousin of Ibori, who Ibori imposed on us as governor after him to cover his track be allowed to govern us even when London has come to fight for Deltans because Nigeria refused to fight for us hitherto? Should Uduaghan who has been frustrating the people's mandate just as his boss did (because they both are actually having or pursuing the same agenda) and so preventing Ogboru from coming on board to cleanse the Augean stable that both men (Ibori and Uduaghan) and their myrmidons created still be allowed to frustrate our mandate? Deltans already know that a resounding ‘NO' is the answer to all of that. Now, another opportunity beckons to vote out Ibori and his proxies and vestiges again; and with the environment being created by Goodluck Jonathan and the present INEC and security outfits, and civil society groups: Deltans must make sure that their mandate stands THIS TIME AROUND. Enough is enough! P.S. When Nigerians and Deltans went to the polls last April 16, 2011for the presidential election, Ibori was appearing same day for the first time in the London court to answer for part of the rot he occasioned in Delta with the connivance of some. That day democracy won at home. Jonathan was elected as I said he would if he takes Ibori to the London court NOW. I actually said then that not to do so would rubbish Jonathan's anti-corruption credentials; and that voters will be going to the polls on April 16, 2011 with ‘corruption' as the main issue in their mind. I also said something else then why Jonathan must take Ibori to that court NOW and I leave readers to decipher it; except to also remind, (and that to be deciphered is impliedly made easier) here that as Nigerians and Deltans go to the polls on April 26, 2011 to elect their governors, Ibori will be appearing the second time in court the same day. The message is clear and one can roll out a volume on that, but there is no compelling need now to do that for we trust that Deltans out there have fully grabbed the main point already. I trust! So, let democracy win April 26, 2011, and let's follow it up conclusively! And lest we forget: The anticipated news is that Great Ogboru and Deltans may have won the Delta gubernatorial re-run suit before that date! That is because having invoked figures from ‘Mars' and ‘Jupiter' all in an attempt to take cover under immunity, Emmanuel Uduaghan has a grim battle with what is known in classics as obscurum per obscurius – (explaining) the obscure by means of the more obscure. Igho writes from Warri
About the Author
Eferovo Igho is a Nigerian political scientist and had postgraduate training in journalism. A media consultant, he is a secular and Christian writer. He has been extensively published by leading Nigerian dailies including the old Daily Times, The Guardian, Vanguard, Daily Independent and by regional and community papers, and had an op-ed column stint with Daily Independent. As a Christian writer he has also been equally widely published and had a Christian column stint with the National Daily Mirror and Niger Delta Inquirer (the latter now off the streets). Igho is member and contributing author to great media websites. His secular and Christian works have been greatly syndicated; just as his research work in science, astronomy, space science (with Bible illuminating the way) has been published by leading science groups such as NASA’s Marshall Space Flight Center (in Science), Scientist of the Year, SCIENCE BLOGG, Lois Bigham, Telescope, Galaxy Science/Magazine Back Issues Online Now, and many others.
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