Is BADBOLA WORD OFFENSIVE AND DEFAMATORY ?
16 May 2013, 11:40
Is it defamatory and offensive to call someone a ‘Badbola’?
Someone has written an article in a blog, describing me as ‘Badbola’. When i complained, he is claiming that Badbola is not an offensive word and it was in fact a satire and it was his right to write such things under freedom of expression ! He wrote two articles some times naming me as badbola and some times without naming me but describing my physical features.
I had filed a complaint against the blogger and the police after due investigation registered a case against him under 66A of Information Technology Act. Will this case sustain in a court of law. Pls advice.
2 Replies
Yes the court can look into the same. However , under new guidelines m pretty sure he won’t be arrested prima facie
Firstly, a few observations before answering your query. Try to be a sport. Learn to take a joke. You are perpetrating nothing but the misuse of Section 66A of the I.T. Act, 2000.
Courts will make careful observations on the nature of your complaint considering that the constitutionality of Section 66A is pending in courts and is likely to be struck down for its arbitrariness. Let me quote the section for you. I shall answer your query accordingly.
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.
Under Section 66A(a) firstly you need to qualify the test of the statement being ‘grossly offensive’. So what is offensive might not be grossly offensive. For example, the word Badbola is not a grossly offensive word in the reasonable persons view though it may be offensive. How does you define if its ‘grossly’ offensive? There is no case law in India but the UK Supreme Court ruling on an identical provision under the English Communications Act in D.P.P v. Collins has said: to be grossly offensive it should be beyond the pale of what is tolerable in our society. Your case falls flat here. As I said, learn to take a joke.
Now under the second limb viz. Section 66A(b) begins with: “any information which he knows to be false.” How are you going to prove this? As a matter of fact if the other party actually brings up evidence of your character in your file is going to be thrown away from the court. Lastly, Section 66A(c) is irrelevant to us.
To sum up, do NOT go ahead with the prosecution. Even if you get relief under trial courts, the appellate courts will read down the law and will likely take a cue from the DPP v. Collins test.