(Ed: The discussion in this article
is purely academic and does not suggest any direct conclusion on Dr L Prakash's case except that the known facts of the case have been used
as examples where necessary.)
The recent case of
Cyber Pornography booked in Chennai against Dr L. Prakash has opened up
several debates on the incidence of Cyber Pornography in India and the measures required to
protect the moral degradation of the society.
The details of the
case are available in the summary article in Hindu hyperlinked at the
end of this article. The case involves a charge that a Chennai based
individual has produced several pornographic photographs and supplied it for
publication in two websites www.tamilsex.com and www.realindianporn.com.
The case is being
investigated by Chennai Police who are reported to have been able to gather
lots of evidence about the production of the material, and also seized some
Computers allegedly used by the accused.
The case has aroused
interest from the point of view of the complexities involved in obtaining
conviction in a Cyber Crime case as well as the role of an Indian intermediary
to a Web Porno publisher.
Let's
first look at the "Crime".
According to Section 67 of the Information
Technology Act 2000 (ITA 2000),
"Whoever
publishes or transmits or causes to be published 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 five years and with fine which may extend to one lakh rupees and in
the event of a second or subsequent conviction with imprisonment of either
description for a term which may extend to ten years and also with fine which
may extend to two lakh rupees."
The
Act therefore applies to the publishing and transmission of obscene material
and covers a web site, e-mail distribution and also a digital rendition on a
CD.
The
word "Causes to publish" is open to some debate but such a reference should
normally be applied to the person who finances and directs an operation as
compared to a servant who merely executes it as a contractual or employment
obligation.
The
first aspect of the case is therefore to prove that there was an "Electronic
Publication".
The
web site tamilsex.com was in existence on the day of this writing (5th January
2002) but the site realindianporn.com was not accessible. Hopefully the
investigators should have copied all the contents of the site so that they can
link the production raw material found in the possession of the accused to the
material published. The copying of the content should ideally be documented in
such a manner that there is no doubt as to its existence on the site as on the
relevant date. Further the copy has to be preserved and produced in the court
of law at the relevant time.
The
second aspect of the case is to find the person who either published or caused
the material to be published. In the instant case the material was supplied to
a publisher abroad. The publisher is therefore not within the normal
jurisdiction of Indian courts even though he is punishable under the ITA-2000
(Sec 75).
The
registrant information for both the sites are given along side this article.
Registrant
information for tamilsex.com:
|
Registrar: |
REGISTER.COM, INC. |
|
|
|
|
Organization: |
TAMILSEX LTD, Daran Antony |
|
address: |
ONLY BY EMAIL |
|
|
LONDON, NW9 UK |
|
|
|
|
Admin
contact: |
TAMILSEX LTD, Daran Antony |
|
email: |
tamilsex@hotmail.com |
|
phone: |
0044 |
|
fax: |
0044 |
|
|
|
|
Tech contact: |
TAMILSEX LTD, Daran Antony |
|
email: |
tamilsex@hotmail.com |
|
phone: |
0044 |
|
fax: |
0044 |
|
As one can
observe, the registration address of tamilsex.com is ambiguous and may or
may not relate to a genuine company. The realindianporn.com is however
registered in the name of a recognizable person who happens to be the
brother of the main accused. Since he should be having an Indian Passport,
it may be possible for the law enforcement authorities to bring him to
India for further investigation and trial. It is however difficult
to investigate and try the person named as associated with tamilsex.com as
he appears to have a non Indian name and no proper address. Any action
against him would involve the cooperation of several international
agencies. |
The third most
important aspect of this case is to satisfy the condition "...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.."
In this connection the
notice put up in the entry page of the website reproduced herein below is
interesting to observe.
|
Entry
Page Restrictions on the Tamisex.com website
By entering tamilsex gallery, you agree to the terms & conditions below:
-
I am an adult, 18 years old.
-
I am NOT accessing this material to use against the site
operator or any person whatsoever in any conceivable manner.
-
I will not redistribute this material to anyone nor will
I permit any minor to see this material, or any other person who might
find such material personally offensive.
-
I am not a law enforcement officer, nor a postal
inspector, nor operating under an assumed name or in cooperation with
any criminal investigation; nor am I seeking out evidence which may
serve as the basis for any charge of violating federal, state, or local
obscenity laws.
-
I understand and state that I am retrieving material
from a location where it does not violate any federal, state, or local
obscenity law or community standard, and agree to bear the full,
complete, and sole responsibility for bringing such material into
whatever community I chose to do so.
|
These
pre conditions try to fix a certain responsibility on the viewer the
acceptability of which will have to be debated in the court of law. The fact
that this was a mere notice and there was no further restriction on the entry to
the site could be argued as an insufficient effort to prevent people whose minds
could be corrupted by viewing the site.
Considering the complexities of the case, it would be a challenging task for the
law enforcement authorities to prove the offence under section 67 of the
ITA-2000.
The
instant case may however have other angles to it coming under the Indian Penal
Code for Meta Society offences and ultimately them may be made to stick. However
it is necessary for academicians to think how in future such offences can be
either prevented or proved in a court of law.
For the present I would
like to state that the first attempt which is easy to achieve is to prevent
Indian Cyber Space being used for purveying pornographic content. This can be
achieved by a suitable administrative guideline where by the State or Central
law enforcement authorities can after a due process of verification
order the ISP s manning the Internet Gateways to block "Objectionable
Sites".
In order to prevent misuse of this provision,
there could be a transparent system of approval of such "Blocking" from a team
of responsible members from the public.
A
provision to this effect is also available in the Communication Convergence Bill
which is in the process of being passed in the Parliament and also can be
implied through the ITA-2000.
If we accept that young
Indian minds need to be saved from corruption with pornographic information on
the web then this kind of "Limited Censorship" of pornographic material is a
necessary step to fight the war against Cyber Pornography.
This kind of
"Blocking of Site" was resorted to by VSNL earlier to block a news paper site
(Dawn) in Pakistan during Kargil war. This was objected to by the public as
unwarranted censorship. However, blocking of Porno sites are unlikely to evoke
any public opposition. Fortunately most of the anonymizers also do not provide
free access to porno sites and hence the blocking of Porno sites will be more
effective than in the case of news sites.
It is such preventive
steps that would reduce the incidence of pornography the world over rather
than the legislative measures which can handle only exceptional cases. It
would however be a continuous exercise for the law enforcement authorities to
keep updating the list of "Objectionable Sites" and voluntary Citizen/Netizen
organisations can help them in this process.
naavi.org hopes that the
current incidence in Chennai will motivate the Chennai Police to initiate some
action in this field which will be a fore runner to the seemingly tough task
of keeping Cyber Space clean. If this is done we can provide a free hand for
our children to explore the positive side of the Internet rather than trying
to monitor every move they make on the Internet.
Naavi
January 5, 2002
Related Articles:
Report in The Hindu