[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 (9) Can we trust that "Law will take Its own
Course" and "Freedom of Speech" will protect the Blog Owner from action under Section 67 or
any other section of IPC if the powers be take note?
Many of the Blog Owners and those who comment profusely there
on belong to the Techie Community. They are not Lawyers themselves nor they are
businessmen. They are half in the US Culture or more correctly they are typical
Netizens of the Cyber World with Cyber Culture. They are well educated but some
times restricted in their vision to the technical aspect of things. Generally,
they are also young and adventuristic.
Often exposed to the US thoughts, the Blog owners and
Commentators are influenced by the thoughts of "Freedom of Speech" as enunciated
in the US Constitution and represented adequately in the early era of Internet
which I refer to as the "Free Internet Era". We in India did experience such an
era upto around 1998 or early 1999. This was the time anonymity and psedonomity
was the norm than an exception. Internet was considered the "Free Information
Exchange Place". Everything in Internet was free from e-mail and web hosting to
content and service. Domain Name Squatting was common and Napster was the most
popular service.
The advent of E-Commerce in particular and the threat felt by
traditional business houses from dot-com establishments changed the scenario
later. Big Business houses in the Real World started taking
active interest in Cyber Regulations to protect their individual turfs.
Established meta society business houses suddenly started realizing the
importance of being on the Internet Space and protecting their Meta Society
"Brands" on the Internet Space and started pushing stringent IPR regulations to
the Cyber Society. Cyber Squatting Laws and demise of Napster like companies
followed. The established E-Commerce entities also supported regulations since
they had to protect their online business from frauds and crimes. The
convergence of the interest of these two potential competitors gave a boost to
"Internet Regulation" and slowly but surely regulations started being imposed on
Web transactions.
Some regulation was also necessary to
maintain organized development of the Cyber Activities. But along with what was
necessary, what the business interests wanted also became a regulation with the
support of law and the law enforcement machinery. Many of the laws which some
Techies today reflect as "Ridiculous" have become laws because of such vested
interests who wielded influence in the law making bodies. Techies who are
suddenly realizing the power of the laws when they see a Dmitry Sklyrov arrested
or College student fined for downloading music, contributed to the formation of
inefficient laws because they never interacted with the law making bodies when
it was necessary.
I recall that when naavi.com (Now naavi.org) first started
discussing the legislation in India in mid 1998 ( when the draft of
E-Commerce Act 1998 and later as Information Technology Bill 1999 was brought up
for public discussion) and Cyber Law College proposed education in Cyber Laws for
the Techies, none of the Techies considered that it was important to them. Even
an attempt to start discussions on the need for CERT with the participation of
the IT majors did not evoke any response from the Industry.
Techies should realize that their responsibility to the Cyber
Society does not end with talking loosely on Blogs and discussion fora. They need
to understand Cyber Laws, Respect them and Implement Cyber Law Compliance in
practice.
In India where "Terrorism" is a reality and also in
USA, post 9/11,
the cherished rights of the past era namely "Freedom of Speech" have been
tempered with the need to protect the integrity and sovereignty of the nation.
Therefore the "Right To Privacy" and "Freedom of Speech" has been subordinated
to the needs of the State.
Moreover, for those who have their eyes and ears open, in
India the phrase "Law will take its own course" has its own meaning. If any
person wants to place his trust in the system entirely and take on the state he
will do so at his own peril.
Blog owners and those who post Comments who reside in India
or hold Indian Passports should therefore be extremely careful on taking
liberties with law. The threat of the Blog owners and participants being
arrested and tried under Section 67 of ITA-2000 or Section 292 and other
sections are very real.
Remember Mr
Suhas Katti
who was sentenced to 5 years of total imprisonment (Net 2 years) for posting
obscene and harassing information about a lady on Yahoo group. Remember Mr Prem
Kumar, the web master who is in custody because he sent an e-mail with
bomb hoax. You will then realize that you could be the next victim if you are
rash.
I have seen a case of a lady employee of a software company
filing a false complaint against a co-worker stating that he had sent her an
obscene mail and made the person spend some time behind bar. He is still
pursuing the
Court process and has lost his job for more than two years now. In another
incidence, a software employee wanted to prevent his lady colleague from being
promoted ahead of him and conveniently sent across a few mails in the Intranet
stating illegal relationship between her and her immediate boss.
Imagine if the
same victims had been maintaining Blogs, the cunning
co-employee could have very easily posted an offending message and sent an
anonymous mail to appropriate places and all hell would have let loose.
Remember that the message may not be a simple link to an
obscene video. It could be ostensibly a message from Al-Queda to its cadres to
launch an attack or a drug peddling offer hidden in a steganographic image and
then it would be difficult even for God to save the person in whose name the
posting might have been made. The Blog owner may also have a lot to explain
particularly if it is an anonymous post.
( I agree that the innocence of an accused can be proved
through forensic means and it is the profession of people like us to ensure that
innocent persons are protected.. I
assure from my side that it will be done when some thing is in my hands. But the
suffering in the first one month of being arrested in a Criminal case is some
thing which a later acquittal will not be able to remove. I would not advise any
body to put to test the dictum "Justice will prevail" by placing himself
at risk)
In summary we can state that Blogging like any other web
based operation has its own share of Cyber Law related risks. It is not a gossip
chat around the lunch table in a software company where anything can be said
about anybody. Worst thing is that some body may talk and some body else may get
hurt.
If we want to survive and do not want our other friends to
get into trouble, it is necessary for us to use the Blogs responsibly. I suppose
Wise Techies get the message.
Naavi
December 12,2004
..Will Be Continued in Bloggers
Beware..10
