At a hearing in the Supreme Court of India on Wednesday, government representatives told the court that the level of restriction on the medium should be higher than that of print or television. This was said in justifying the retention of the penal provision of Section 66A of the Information Technology Act.
According to a report, Additional Solicitor General Tushar Mehta argued before the apex court that there was need for a mechanism of checks and balances on the Internet, though he added that it was impossible to regulate it.
"There are institutions which are working in other media whether it is paper, television or cinema," said Mehta. "There is an institutional approach and there are checks like pre-censorship for TV and films. But in Internet there is individual approach and there is no checks and balances or license."
According to him, the Web needs a higher level of restriction because of the speed with which information spreads, and the scope of its reach.
"Considering the reach and impact of medium, leeway be given to legislature to frame rules," he said. "On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button."
"It is not possible to outrage someone's modesty through print and television but it can be easily done through internet," he said.
However, others have argued this point, and there are many who feel that the law as it exists is too vague, and hurts online entrepreneurship. The bench of the Supreme Court also said that reasonable restrictions on free speech as allowed under Article 19(2) of Constitution on freedom of speech and expression did not recognize any form of medium.
The provision, as it exists, makes posting offensive messages on social network sites an offence punishable by up to three years in jail. The issue that many have is that the exact terms are not clearly defined - and people argue - that without a clear definition of offensive material, anything could be viewed as such.
The court had earlier said that the term offensive was "vague" and highly "subjective" term and Section 66A is prone to misuse. Speaking for the government, Mehta however said that the provision cannot be quashed or thrown out just because the provision is vague on defining the word "grossly offensive".
The court had earlier also raised concerns that the majority of cases that come up lie in a grey area and that there is a chance of misuse. It reportedly said conservatives would always term the opinion of reformists as offensive and cited the example of Galileo who was kept under house arrest till death for his theory that earth revolves around the Sun.
In turn, the government said that posting pictures and comments on social networking sites which hurt religious sentiments cannot be tolerated and people must be prosecuted under Section 66A. It had said that hurting religious sentiments comes under the category of "grossly offensive" under the provision and such acts must be penalized.