[Due to the extraordinary interest
generated by this issue, a more detailed discussion has become necessary. Hence
this article is being extended into a series of articles, links for which are
given below as BB2,BB3 etc....Naavi]
BB1:BB-2
: BB3:BB4:
BB 5:BB6:BB7:BB8:BB9:BB10
Internet was born free. Anonymity and Pseudonomity were the
norms of the Internet society as it gathered momentum and became a
"Communication Revolution". Under these circumstances, Internet was the dream of
those who cherished "Freedom of Speech".
Unfortunately, some where down the line, as "Commerce"
started spreading on the internet, the initial "Free Medium" was burdened with
the responsibility of being provided with a "trusted" medium. The first casualty
of this development was the "Privacy" of the Internet users and reduction in the
freedom of speech. In order to protect business, "regulations" came into being
and the Internet began to be chained.
The cultural difference brought in by the
new
communication possibilities of the Internet also made the regulators think of
"Protecting" the current society from the ill effects of the emerging Internet
Society. Countries like India adopted therefore a regulatory system which also
attempted to control pornography on Internet. Whether such "Cultural
Policing" is desirable or not may be debated.
But the truth is that the Indian law at present applicable to
the Internet usage, represented by the Information Technology Act 2000
(ITA-2000) has a section 67 containing a stringent provision for publishing and
distribution of obscene material in electronic form. This provision is of great
importance to all web site owners who are "Publishers" and also e-mail list
owners, and mobile phone users who may be "transmitting" information in
electronic form.
Of late many enthusiasts on the internet are maintaining
personal "Blogs". A "Blog" is essentially a shared on-line journal where
people can post diary entries about their personal experiences and hobbies. The
essence of a "Blog" is the ability to allow expression of the views of a large
number of visitors to the site to post their comments. It is the totality of the
initial posting and the comments that distinguish a "Blog Site" from another
traditional website under the control of an "Editor".
The prevalence of stringent laws of Cyber Publishing creates a
high degree of "Risk" in "Blog Publishing". Blog owners will do well to reflect
the needs of "Cyber Law Compliancy" for their activity without which they are
just a step away from the jail room.
It may be recalled here that one of the blogs from a Chennai
software professional recently raised a huge controversy for posting an
information about the existence of a video clipping of a famous actress called
Trisha in which she had been secretly filmed while bathing in a Hotel room. This
post attracted hundreds of curious enquiries from the blog visitors including
some who pleaded for the source of the clip and even offered to pay money or
exchange other similar stuff. One of the visitors even posted a link from which
the clip was available. As a result of all these activities the blog contained
information, discussions and the source of the offending clip which was obscene.
Ultimately the blog owner realized that it was a mistake to
take up the topic for discussion and removed the posting along with the
offending link from his site.
This raised an issue of what is the responsibility of a blog
owner vis a vis the ITA-2000. I would like to place here my views for the
general information of all blog owners so that they donot erroneously stray into
a legally dangerous zone.
The relevant sections we need to closely check in ITA-2000 to
get a better view of things are Section 67 and Section 79.
We shall first visit section 67 which is reproduced below.
Publishing of information which is obscene in electronic
form
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 key elements of this section are
a) Whether the activity constitutes "Publishing" or
"Transmitting" or "Causing to be Published"
b) whether the material is lascivious or appealing to the
prurient interest or having an effect 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
("Lascivious" means "Driven by lust; preoccupied with or
exhibiting lustful desires".)
There is no doubt that "Blog" as well as any "Website" is a
"Publishing Activity". Transmitting however refers to "Sending E-Mails" though
it can be argued that sending a one on one e-mail may be more a personal
communication which needs to be distinguished from "Transmitting" which term
should be applied to a case of "Sending to Many". "Causing.." distinguishes an
"Owner" of the website as distinguished from a "Programmer" who works for such a
owner or a "Computer" which is programmed to automatically to respond. The blog
comments posted by visitors which is automatically published is therefore the
responsibility of the blog owner.
Whether the material is lascivious or not is a matter of
subjective interpretation and has to be seen in the context of the persons who
are likely to have access to the information. If the blog is accessible publicly
then we can say that any person including a minor who is more likely to be
depraved or corrupted may visit the blog and view the same. It also gets
reflected in search engines and is widely accessible across the globe. If the
blog is for members only and accessible with some access restrictions and such
members are say sociologists or criminologists who are studying the impact of
Internet on the society etc, then there is a possibility to argue that the post
is for academic discussion amongst persons who are unlikely to be corrupted.
It is needless to say that the punishment of 5 years
imprisonment is stringent enough and we can recall that Chennai had the
distinction recently of getting the first conviction in India where an offender
was given 2 years of imprisonment under the section. He was also given another 3
years imprisonment under sections of IPC or other laws which concurrently apply
in such cases ..such as "Defamation", "Outraging the Modesty of women" etc.
Since the terms were to run concurrently the punishment in effect was 2 years of
imprisonment. Nevertheless this should put the blog owners on guard.
We may also recall that some time back, the owners of
rediff.com were dragged to court for having provided a search facility leading
to pornographic sites.
The risk of Blog owners being successfully convicted under
Section 67 is therefore too real to be brushed aside under faith on
"Freedom of Speech" and other human rights.
We all know that, in India, "Human Rights" can be a subject
matter of diverse interpretation as "Law takes Its own Course" in cases of
public importance. Accordingly, a terrorist who dies in an encounter would be
sympathized and supported while a 70 year old Hindu Seer will be
pronounced "An Undeserving Criminal" based on the statement extracted from a
"Known Contract Killer" (who also retracts his statement as made under duress)
or pronounced a "Sexual Exploiter" based on a short story weaved by a lady story
writer with a suspected mental illness.
Our media is so efficient that when it comes to select cases
of public interest, it is the media which conducts the trial and
pronounces judgment while the law is taking its own course.
Blog owners are therefore advised not to take the law lightly
and immediately take steps to make their sites "Cyber Law Compliant".
Now it is our turn to visit Section 79 of ITA-2000 and see
what is its relevance.
The section is reproduced here:
Network Service Providers not to be liable in certain
cases
For the removal of doubts, it is hereby declared that no
person providing any service as a Network Service Provider shall be liable under
this Act, rules or regulations made thereunder for any third party information
or data made available by him if he proves that the offence or contravention was
committed without his knowledge or that he had exercised all due diligence to
prevent the commission of such offence or contravention
Explanation. - For the purposes of this section
a)"Network Service Provider" means an intermediary
b) "Third Party Information" means any information dealt with
by a network service provider in his capacity as an intermediary
Under the provisions of this section, the Blog owner can
claim immunity for the postings of the visitors provided that
i) He can prove that the offence was committed without his
knowledge and
ii) He had exercised all due diligence to prevent commission
of such offence or contravention.
Now the Blog owners know what is required of them. If they
are interested in running their blog without risk, then they need to know
"What is Due Diligence" and exercise such "Due Diligence". Secondly if they come
to know of an offence they should take immediate action to rectify the
situation.
Perhaps removal of the offending information by the blog
owner when he comes to know of the offence is one such minimum requirement under
Section 79 to claim immunity as an "Information Intermediary".
As regards "Exercising Due Diligence", it is a subject to be
discussed with a "Cyber Law Compliancy" consultant (Such as the Undersigned!) as
a part of the investment to be made for web publishing.
Before I end, let me make just two points related to
the above.
1) Viewing of a pornographic material on the web either at
the private residence of an individual or the private premises of an office or
in a Cyber cafe is not "publishing" or "transmitting" and hence may not be
termed as an offence. (Promoting viewing of such sites by spreading information
and particularly inducing children would however be an offence)
2) The issues discussed above for blog owners on the need to
be "Cyber Law Compliant" also applies to Companies who maintain websites,
service providers such as Sify, Rediff, Indiatimes etc who let public host web
pages with un monitored content.
Naavi
December 5, 2004
..Will Be Continued in Bloggers
Beware..2
Related Articles:
Scandal in school shakes up Delhi..Telegraph
First Conviction Under Sec 67 of ITA-2000
Defamation on Interent-Ivan Hoffman
Defamation-IVan Hoffman
What is Defamation?..libelxpress
