Legal implications of social media “likes”: Section 67 of the IT Act

Introduction

In a recent judgment, the Allahabad High Court (Court) made an important distinction between liking a post and sharing a post on social media platforms. The Court held that merely liking a post does not amount to publishing or transmitting obscene material under Section 67 of the Information Technology Act, 2000 (IT Act).

The case involved an allegation against the applicant, Imran Khan, who was accused of posting provocative content on social media, which allegedly led to the assembly of about 600–700 members to organize a procession without the required permission, thereby posing a serious threat to public peace.

In light of the allegations against the applicant, criminal proceedings were initiated against him, and he approached the High Court seeking quashing of the charge sheet, the cognizance order, and the entire criminal case.

What Does Section 67 of the Information Technology Act Say?

Section 67 of the IT Act deals specifically with the punishment for publishing or transmitting obscene material online. It reads:

“Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees, and in the event of second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

Thus, Section 67 of the IT Act specifically targets material that is obscene, lascivious, or capable of corrupting its audience – particularly content of a sexually explicit nature.

Court’s Reasoning

The Court relied on literal interpretation of Section 67 of the IT Act. It emphasized that an offence under this section is made out only when a person ‘publishes’ or ‘transmits’ obscene material.

The Court engaged in a careful analysis of the language of Section 67 of the IT Act. It emphasized that the law penalizes only those acts involving the publication or transmission of material that is lascivious or appeals to prurient interest.

The Court clarified that a post or message could be considered published when it is shared, forwarded, or retweeted, thereby communicating it to a wider audience. In contrast, merely liking a post is a passive act and does not amount to its publication or transmission.

In the present case, the material in the case diary indicated that the applicant had simply ‘liked’ a post by another individual, Farhan Usman, which discussed plans for an assembly. Since there was no active role in sharing or transmitting the post, no offence under Section 67 of the IT Act was made out.

The Court drew support from the Madras High Court’s decision in S.Ve. Shekher v. Al. Gopalsamy and others¹, wherein, it was held that forwarding a message could imply endorsement and acceptance of its contents, making the sender responsible. However, this principle was inapplicable to merely liking a post, as liking does not involve the act of forwarding or spreading the message. 

Reference to Freedom of Speech

The Court also considered broader constitutional principles. It referred to the Supreme Court’s decision in Kaushal Kishor v. State of U.P. and others², wherein, it was emphasized that every citizen must exercise their right to freedom of speech under Article 19(1)(a) of the Constitution of India responsibly. Speech that is vitriolic, derogatory, or strikes at the dignity of others is not protected under Article 19(1)(a) of the Constitution of India. However, the Court noted that merely liking a post does not, by itself, amount to making a public statement or publishing material that violates constitutional boundaries.

Scope and Application of Section 67 of the IT Act

Importantly, the Court elaborated on the scope of Section 67 of the IT Act, clarifying that it addresses only obscene material — not provocative material. The expressions “lascivious” and “appeals to the prurient interest” relate to sexual content, not to provocative or politically sensitive speech. Therefore, provocative messages that do not contain obscene content fall outside the ambit of Section 67 of the IT Act.

Since there was no evidence linking the applicant to any obscene material, the Court found no ground to prosecute him under Section 67 of the IT Act.

Conclusion

After a thorough consideration of the facts, evidence, and applicable legal principles, the Court found that no case was made out against the applicant under Section 67 of the IT Act or under any other criminal provision. The act of merely liking a post did not constitute publishing or transmitting obscene material, nor did it amount to any criminal offence under the IT Act or the Indian Penal Code.

Accordingly, the Court quashed the criminal proceedings initiated against the applicant. However, it clarified that this order would not impact the proceedings against other co-accused individuals if legally sustainable grounds exist against them.

This judgment marks an important development in Indian cyberlaw jurisprudence. It highlights the need to differentiate between passive online behaviour, such as liking a post, and active dissemination of content. It also emphasizes that criminal liability, especially under stringent provisions like Section 67 of the IT Act, must be invoked with caution, based on clear and substantive evidence.

¹ 2023 SCC OnLine Mad 4626

² (2017)1 SCC 406