Kochhar & Co has filed police information reports (FIRs) against websites including Facebook, Twitter, YouTube, Sulekha, MSN and others that allegedly hosted “defamatory and objectionable material” against Congress party general secretary Digvijay Singh.

A Kochhar & Co spokesperson wrote in an emailed press release to Legally India: “Mr Rohit Kochhar filed on behalf of Mr Digvijay Singh under section 66A and section 79 of the Information Technology Act.

“Mr Kochhar has been successful in getting an FIR registered day before yesterday against various accused parties including Facebook, Twitter, YouTube, MSN and the others.”

The four-page FIR was lodged with the Delhi police’s economic offences wing on Thursday evening, also targeting websites such as sulekha.com, msn.com, youbihar.com, ibibo.com, NewsofDelhi.com, DimagKharab.com and 20 users who allegedly posted “menacing, annoying, insulting and injurious”, according to Mail Today, IANS and others, allegedly causing “acute mental pain and agony” to Singh, his family members, friends and colleagues and damage to the reputation, goodwill and image of the Congress party.

Kochhar declined to comment in detail when contacted by Mail Today, citing client instructions.

The law

Section 66A of the Information Technology (Amendment) Act 2008, imposes a jail sentence of up to three years and a fine on any person who sends via a computer:

“any information that is grossly offensive or has menacing character”,

“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”.

Section 79 of the IT Act provides protection to social websites or other web hosts and states an “intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him” if:

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act […]”.

Those section 79 safe harbour provisions do not apply, according to sub-section 3, if the intermediary

“(a) […] conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner”.

• Download the IT Amendment Act 2008.

The IT Act in previous action

In June 2011, Kochhar withdrew a petition against Legally India after the Cyber Appellate Tribunal, which is created by the IT Act, passed a five week injunction restraining Legally India “from entertaining, accepting, carrying on or publishing any information or material relating to any of the judicial and quasi judicial proceedings concerning the appellant”.

The injunction followed a Legally India investigation into Rohit Kochhar’s dispute with Delhi builder Puneet Beriwala before Legally India had published any articles on the matter.

• How a lawyer used the IT Act to gag Legally India from publishing online.

Legally India welcomes readers’ views or blogs on the IT Act and its potential application in such cases.