Madras High Court: Sending an Emoji is an act of Expressing One’s Feelings; Not to be Treated as an Overt Act

Brief

In an interesting case, where the Hon’ble Madras High Court had to decide whether sending an emoji can be an obscene act, it was held that emojis are medium for conveying one’s feelings about something and sending them cannot be treated as an overt act.

Case Description

I. Linga Bhaskar v. State

Madras High Court

Case type: Criminal Original Petition

Case No.: CRL.O.P.(MD) No.3110 of 2017 and CRL. M.P. (MD) Nos. 2366 and 6773 of 2017

Date of Order: 05.06.2018

Bench: S.S. Sundar, J.

Facts

1. Petitioners and second Respondent were part of a WhatsApp group that functioned as a platform for exchange of ideas and suggestions for improvement of BSNL. While Petitioners were indoor staff, the second Respondent was an officer engaged as outdoor staff.
2. Second Respondent shared a video of three customers complaining about BSNL’s coverage in the group.
3. Petitioners interpreted the video as an insult towards indoor staff and started posting an emoji, namely, smiling face with tears, as a response to the video.
4. Some Petitioners felt that the video would likely affect the moral of executives and taint the image of BSNL. They requested SNEA members to post the same emoji as a response.
5. After being bombarded with such emoji, second Respondent got annoyed and filed a complaint under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, Section 3 (1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 67 of Information Technology Act.
6. In response, the Petitioners filed a criminal petition challenging the First Information Report (FIR).

?Issues

1. Whether an emoji of smiling face with tears be treated as obscene?

Laws Involved

1. Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002
2. Section 3 (1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015
3. 67 of Information Technology Act, 2000 (“IT Act”)

Petitioners’ Arguments

1. No offence under section 4 of Tamil Nadu Prohibition of Harassment of Women Act can be made out from reading the complaint.
2. No offence under Section 3 (1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act and Section 67 of Information Technology Act can be made out from reading the complaint.
3. The emoji sent is only an expression of Petitioners’ feeling towards the video uploaded by the Respondent and should not be taken seriously.
4. The second Respondent had already received a remedy by way of departmental proceedings. She had also forwarded her complaint to Scheduled Caste and Scheduled Tribes Protection Wing. The mentioned authorities did not find any prima facie case in the second Respondent’s complaint.

Second Respondent’s Arguments

1. The emoji of smiling face with tears is understood publicly as an annoying emoji.
2. Certain emojis have definite meanings; the emoji sent in this case was meant to convey hatred and humiliate the second Respondent.

Court’s Observation

1. The object of section 67 of the IT Act is to prohibit publication revealing an over sexual interest or desire or encouraging an excessive interest in sexual matter. For a material to become obscene under this section, it must be lascivious, or it should appeal to prurient interest.
2. As per section 4 of Tamil Nadu Prohibition of Harassment of Women Act, the prime ingredient is harassment.
3. Harassment means indecent act by a man that causes or is likely to cause intimidation, fear, shame or embarrassment. The scope of the section also includes abuse or hurt or nuisance or assault or use of force.
4. With reference to the object of the Act, the person facing allegation of section 4 must have done something to outrage women’s modesty.
5. Regarding application sections under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, it is necessary that the act complained against was undertaken because of the Complainant’s association with the Schedule Caste/ Schedule Tribe.
6. When it is an accepted notion that emojis are sent to express one’s feelings about something, it cannot be treated as an overt act of others.
7. Every person has an indefeasible right to express their feelings. However, the Petitioners’ act of posting such emoji as a response to the idea shared by the Complainant in the group cannot be condoned because the group itself is formed to promote team spirit.

Conclusion

1. The offences under IT Act, Tamil Nadu Prohibition of Harassment of Women Act, and Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act are not made out.
2. However, the act of posting such emoji as a response to the video uploaded by second Respondent cannot be left unattended as it will pave way for further complications and complaints in future. Hence, the Hon’ble Court asked the Petitioners to express their regret towards the second Respondent for such behaviour.
3. The Petitioners accordingly filed an affidavit recording their regret. Therefore, the FIR was quashed.

?By— Ayush Mita Bardhan , Trainee Associate, The Legal Swan

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