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Expressed at bazee.com CEO arrest :
The recent developments in the Cyber Law interpretation has brought us to the
doorsteps of an important discussion on "What is Due Diligence" according to
ITA-2000?.
Regular visitors of this site may be familiar with the sub site
www.cylawcom.org which discusses certain
aspects of the issue. The recently published set of articles "Bloggers
Beware" also discussed the issue in great detail. This article further
discusses the issue to clarify the risks involved in web publishing in India
given the current law enforcement scenario.
In the context of the Information Technology Act 2000 (ITA-2000), it is relevant
to consider the references made to the "Due Diligence" can be seen in the
sections 79 and 85.
Section 79 which is meant to provide protection to Network Service Providers
states as under:
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.
Further, according to Section 2(w), "Intermediary" is defined as under
"Intermediary" with respect to any particular electronic
message means any person who on behalf of another person receives, stores or
transmits that message or provides any service with respect to that message;
Section 85 of the ITA-2000 talks about the offences of Companies and states:
Offences by Companies
(1) 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.
(2) 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
The two sections make it amply clear that the legislation does recognize the
possibility of Cyber Crimes being committed in such a manner where vicarious
liability can be implied on the "Intermediary" and "Company" and exhibits a
desire to give them certain protection.
We need to note the words " For the removal of doubts..". This indicates that
the legislative intention is obviously not to make the intermediaries liable for
the information that merely flows through them. The introduction of the section
is only as a means of abundant caution for the removal of doubts. This implies
that the legislative intention is wider than what this specific words mean. It
is therefore open to a competent court to extend the scope of protection
indicated in this section based on the context.
If the intention was to provide restrictive protection to any particular issue,
there would have been no need to indicate as if the need for protection is
obvious.
The definition of the word "Intermediary" uses the words "Electronic Message"
and "Any service with respect to such message". This definition covers not only
the e-mail service providers such as yahoo and hotmail but also other service
providers who deal with the storing, forwarding or providing any service
regarding an "Electronic Message".
The word "Message" used in the definition of an "Intermediary" should not be
restricted to "E-mails" since a typical website is a collection of "Content"
which is requested for and delivered as a http message in electronic form. Any
information provided there in is therefore an "Electronic Message" to the
visitors. The words "..third party information or data made available by
him " further corroborates this intention since "provision of data or
information" is typically the nature of a website.
By definition, an auction site is different from a mere E-Commerce site since in
a normal E-Commerce site, the goods of the site owner is put to sale while in
the case of an auction site it is the third party goods that are sold.
In an auction site, the intention of the information provider is therefore
clear that the "Content" is a message to a prospective buyer. It is third party
information since the prospective seller offers to sell a product or service to
a prospective buyer. The role of the auction site is only to facilitate the
interaction and exchange of payment for which he receives his remuneration
either directly as commission or as "Advertising Revenue" accruing due to
visitors coming to his auction website.
Protection under Section 79 of the ITA-2000 is therefore clearly implied in the
case of an auction site where a prospective buyer offers an obscene material for
sale.
If any view that an "Auction Website is not an Intermediary under
Section 2(w) of ITA-2000" is to be accepted, it would mean that Section 79
of ITA-2000 has to be discarded lock stock and barrel.
....To Be Continued
Naavi
December 19,2004
Also See
Bloggers Beware..Set of 10 articles
Advertising Code?..or Section 67 of ITA 2000?
Related Articles:
At
Sify.com
Sify.com :
Express India :
TOI :
HT
At Naavi.org:
Bazee Bite Wakes Up Sify
Are Mobile
Phone Service Providers Liable?
Buyers
of DPS Video also being Arrested
Bazee.Com
CEO Arrested
Wise Techies realize that Law Can Bite
US Video
Voyeurism Bill Goes for President's Signature
Delhi Police Register Case..Bazee Needs to Explain
