LEGAL RISKS ASSOCIATED WITH SMSs

People often send SMSs using their mobile phones without being fully aware that the contents of these SMSs may cause or are likely to cause annoyance, humiliation, inconvenience, distress or anxiety to the recipients. Consequently, they may not be aware of or realise that they may be acting in breach of Section 46(h)(ii) of the Information and Communication Technologies Act. If convicted for such an offence, the sender may be liable as per section 47 (1) of the same Act to a fine not exceeding 1,000,000 rupees and to penal servitude for a term not exceeding 10 years. The actual sentence will depend on the gravity of the offence.

Once a person is charged under section 46(h)(ii) of the ICTA, for using an information and communication service for the purpose of causing any of annoyance, humiliation, inconvenience, distress or anxiety to the recipient and he pleads guilty to the charge, Court will find him guilty as charged and will convict him. In the event he pleads not guilty to the charge then Prosecution will need to prove the following elements beyond reasonable doubt:

1. The offensive act committed by the accused, namely, that the accused used an information and communication service, his mobile phone in this case and sent the message in question to the mobile phone belonging to the complainant/recipient.

2. The mental element of the offence, that is, the messages were sent for the purpose/with the intention of causing any of annoyance, humiliation, inconvenience, distress or anxiety to the recipient.

3. A reasonable person will objectively find that the message would cause any of annoyance, humiliation, inconvenience, distress or anxiety to the recipient.

If prosecution is successful, then Court will convict the accused and this will be followed by a sentence hearing for the Court to determine the appropriate sentence.

So prior to sending SMSs to a recipient one must reflect carefully on their contents and decide whether a reasonable person would find that they could have been sent for the purpose of causing any of annoyance, humiliation, inconvenience, distress or anxiety to the recipient; for example, they were sent at night, they were repetitive in nature, they contain offensive, threatening and intimidating phrases, amongst others. However, one must remember that it is the message itself and not its content, which is the basic ingredient of the statutory offence. The same content may be menacing or grossly offensive in one message and innocuous in another.

One must therefore be aware that caution must be exercised at all times when sending SMSs to recipients and ensure that the SMSs are not offensive, threatening and intimidating as these could form grounds for legal actions by the recipients against the sender.

- Professor Dr K M Sunjiv Soyjaudah (Avocat/Barrister)