[Due to the extraordinary interest
generated by this issue, a more detailed discussion was found necessary. Hence a
series of articles are being presented links for which are given below as BB1,
BB2,BB3 etc....Naavi]
BB1:BB-2
: BB3:BB4:
BB 5:BB6:BB7:BB8:BB9:BB10
In our previous articles " we had discussed some of the
legal issues regarding Blogging. Let us visit a few more here.
Issue (5) What are the ethics of posting comments in a
disguised identity and to what extent "Anonymity" encourages "Adventurism" on
the Internet?
Anonymity has been both the boon and bane of Internet. But
for the possibility of anonymity Internet would not have developed as a global
media of communication as fast as it could. It could not have enabled the world
to get information from a war zone such as Iraq or from a country such as Burma
or China during days of oppression. Democratic people all over the world cherish
and value this ability of the Internet to enable bold expression of views under
the cover of anonymity. Pseudonomity also has similar beneficial impact on the
society.
Unfortunately however, society also consists of individuals
who misuse their freedom and tarnish the image of Internet by using anonymity as
a cover for blasphemy or pseudonomity as a criminal tool.
As a result, we find persons passing irresponsible comments
and unsubstantiated charges while posting views on a Blog under a false name or
under no name.
It is a matter of human psychology that persons tend to do
acts which the society considers as incorrect when they think they cannot be
caught. Even most murders take place with the belief that the murderer cannot be
caught. If every murderer knew that he would be caught, the number of murders in
the country would have grossly come down. In a crowd, even the most decent
person does not mind throwing abuses some times for the kick he gets out of it
and nothing else.
While upholding the value of anonymity to the "Freedom of
Speech", it is to be said that " Mis-Use" of this feature of Internet is not to
be encouraged.
What this means in the context of a Blog is that if a visitor
posts a comment anonymously, it should be subject to moderation so that
anonymity is not used as license to flame. Comments from people who would
not mind to be identified may be allowed without moderation since they take
responsibility for the consequences.
It is therefore advocated that Blogs should implement a
system of "Membership" which when approved should provide the "License to
post without prior screening".
While the issue of "Anonymous" posting is one of ethics, when
an anonymous posting is allowed to be used for committing a crime, then the
question of "Complicity" of the Blog owner comes into being. Since the offence
is committed in the Blogger's space, the Blog owner has the vicarious
responsibility to identify the offender.
In this connection, we can read the intention of law from
Section 85 of ITA-2000 which states as under.
Offences by Companies
Where a person committing a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder is a
Company, every person who, at the time the contravention was committed, was in
charge of, and was responsible to, the company for the conduct of business of
the company as well as the company, shall be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly
Provided that
nothing contained in this sub-section shall render any
such person liable to punishment if he proves that the contravention took
place without his knowledge or that he exercised all due diligence to
prevent such contravention.
Notwithstanding anything contained in sub-section (1),
where a contravention of any of the provisions of this Act or of any rule,
direction or order made thereunder has been committed by a company and it is
proved that the contravention has taken place with the consent or connivance
of, or is attributable to any neglect on the part of, any director, manager,
secretary or other officer of the company, such director, manager, secretary
or other officer shall also be deemed to be guilty of the contravention
and shall be liable to be proceeded against and punished accordingly
Explanation-
For the purposes of this section
(i) "Company" means any Body Corporate and includes a Firm or other
Association of individuals; and
(ii) "Director", in relation to a firm, means a partner in the firm
It is clear from the above provision that "Vicarious
Responsibility" of the "Company" and a "Director" is recognized in law.
Since the term "Company" also includes any "Association of Individuals", a non
corporate entity can also come under this provision. There is an inclusive
definition of the Company for which other extension of meaning may be
ascribed in future.
While one can argue on the semantics to say if this is
applicable in the case of a particular website owner or not, there appears to be
no ambiguity on the intention behind this clause.
It is therefore within the realms of possibility that a
Court may take a view in a particular case that what is stated here for a
"Company" or an "Association of Persons" may be extended to a "Collective
Publication on the Net such as a Blog".
It is my personal view that such an extreme view is not
warranted in the case of offences under the umbrella of "Obscenity" but would be
warranted when a Blog is used for spreading terrorist messages or carrying on an
anti national propaganda.
When such unfortunate thing happens and a Competent Court
holds a Blog owner responsible, for carrying anonymous postings that constitute
a threat to the integrity of the country, it would then be cited by
lawyers as a "Precedence" and some times quoted out of context.
Readers may remember that Indian Government blocked the
entire yahoo group sites because a group with 26 members appeared to carry on
discussions about secessionist activities in Mizoram.
Bloggers must therefore be careful and avoid such Possibility
for a particular blog or to a group of blogs under a Blog service provider.
Pseudonymous posting of offensive messages in a Blog are even
more dangerous particularly if the identity of another known individual is
spoofed either by design or by accident.
Naavi
December 11,2004
..Will Be Continued in Bloggers Beware..7
