Here is yet another incident of common occurrence in India which threatens
peaceful conduct of legal business. An advocate from Belgaum (Karantaka)
has reported that the Police have hoisted a case against a Cyber Cafe owner
under Sec 292 of IPC and Sec 67 of ITA-2000 and he is trying to convince
them that a Cyber Cafe is an ISP and is not liable for the contents of
web sites. (The sections relate to publishing and distribution of Obscene
Content).
It is also said that the Police have seized the Computers in the process.
This raises an important issue of the responsibility
of the Cyber Cafe owners with respect to the content browsed through by
the users. Just as the case of Rediff.com being wrongly held responsible
for the ability to display links to obscene sites in a Search Engine, Police
in this case seems to think that the Computers of the Cyber Cafe should
be held responsible for display of obscene sites. We are not sure
how they are going to use the confiscated computers in a Court to display
the virtual information which some alleged surfer is said to be viewing
that has resulted in this crime being committed. Nevertheless, the loss
of business and the harassment that the defendant has to undergo during
the pre-trial stage is more than a punishment and there is no legal remedy
to compensate the defendant for this unjust punishment.
This is an incident where the the ignorance of the Police is the cause
of such public harassment.
As for the legal position, I think the provisions are reasonably clear.
According to Sec 67 of the ITA-2000, it is the publishing and distribution
of obscene material that is punishable and not viewing an obscene material.
Secondly, the obscene material resides in the Cyber Space which is not
within the four walls of the Cyber cafe that the owner is in control.
Law also does not categorically impose a responsibility on the Cyber
Cafe owner to act as a "Police Man" and watch every page that the viewer
visits and every word he reads. If there is any implication of this sort,
we will be effectively putting a ban on the business of Cyber Cafe's. Hence
such an expectation is impractical. It would also violate the "Privacy
Rights" of an individual. If such an attempt is made by a Cyber Cafe owner
say by tweaking the system, he may be violating the provisions of the proposed
Convergence Bill (When enacted) under what is referred to as "Cyber Stalking.
Internet browsing is a personal experience and it is through his personal
interaction that a Netizen accesses a web site. The Cyber cafe owner only
provides a tool to access the web sites. The Netizen may access either
an obscene site or a e-Prarthana site. Just as if a telephone is used to
convey obscene information, we cannot make the telephone exchange responsible,
we cannot make the Cyber Cafe responsible for the surfing activities of
the users.
Under sec 79 of the ITA-2000, it is expressly provided that an
"Intermediary" who is a network service provider shall not be liable under
the Act if he proves that the offence was committed without his knowledge
or that he had exercised due diligence to prevent commission of such Act.
In the instant case, if "Viewing" an obscene site is not an offence
under Sec 67, there is no offence committed. During the time the individual
surfer is using a machine, the machine and its capabilities are under lease
to the user and he alone is responsible for his actions. Hence there should
be no direct liability for the Cyber Cafe. I hope that the Police don't
take up this as an ego issue and contrive methods to prove that an offence
has been committed under IPC.
I wish the Cyber Crimes cell of the Karnataka Police in Bangalore
advises the Belgaum Police to treat this matter fairly.
In the mean time, let's look at a long term solution to the problem
of obscenity on the Internet being deliberately and systematically distributed
through the Cyber cafe's. Since we can foresee that the society will always
consist of a mix of good and bad Cyber cafe's, we need to create a system
to distinguish and reward the good cyber cafe's from the bad ones, so that
the Police will not look at all Cyber Cafe owners as similar to "Brothel
Owners".
In this connection, it would be in the interest of Cyber Cafe owners
to institute methods and procedures that could be held in a Court of law
that "Due Diligence" has been exercised by them to prevent use of their
systems for publishing and distribution of obscene content on the
Internet in the ordinary course of usage. This could be in
the form of a "Filter" atleast on some of the machines that would be earmarked
for use by Children. (filters are not entirely effective and hence it is
not recommended for use by all users.). It would also be in the form of
notices that draw the attention of the users to their responsibilities
and disclaimers that absolve the Cyber cafe owner.
naavi.org which has been highlighting the necessity for setting
up a "Netizen's Forum For Credible Cyber Regulations" has proposed the
following set up as a permanent measure for protecting innocent Internet
users from the kind of harassment that is being reported.
It is proposed that in each city, a Citizen's body to monitor
"Obscenity on the Convergent Media through public Media- access systems"
be set up as an NGO.
Cyber Cafe's fall under this category of Media Access systems. In
future there will be "Kiosks" maintained by individuals to support E-Governance
activities which can also be used for surfing on the Internet. They also
will be similar to Cyber cafe's.
Under this monitoring system, the body will institute "Membership
based on voluntary compliance of Ethical Standards" and periodical surprise
inspections and user surveys. These will be aimed at providing a "Clean
Internet Browsing Center Certificate" to eligible Cyber Cafe's who take
such steps as are necessary to prevent use of their Computers for publishing
or distribution of obscene content.
Eligible Cyber cafe's will be permitted to display the "Seal Of Approval"
from the NGO.
naavi.org is looking forward to the support of some NGO 's in Chennai to
set up first such institution. The Police itself should be in the forefront
of encouraging such citizen initiatives and the Government should also
support such activities. In due course it will be necessary for such NGO
s to form into a federation across the country and act under their own
"Ethical Standards" to prevent corruption seeping right into this voluntary
organisation itself. Public spirited, strong willed persons from the community
should come forward to establish such an organisation which will be respected
both by the Police as well as the Community consisting of the Cyber Cafe
owners and the Netizens.
Naavi
March 25, 2001
Do readers have a views on this? or suggestions?. If so, Your
views can be sent here
