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Obscenity in Electronic Form under ITAA(p)-2005 

 ...a law for the privileged, by the privileged and to protect the privileged.

 

Under ITA-2000,  Section 67 dealt with the offence relating to "Publishing and Distribution" of information which is obscene in Electronic form.  There have been many cases which have been filed by Police under this clause both on individuals as well as Cyber Cafes. There has been a case which had been filed against rediff.com and indiatimes.com also in the past which were perhaps aborted midway. The Bazee.com case which became the raison d'etre for the amendment exercise saw a case being filed and arrests being made of both the person who sold the obscene video clip and the CEO in charge of the e-auction place.  A conviction took place in Chennai under this section where the accused was awarded imprisonment of 2 years under this section.

The revision of the section has now been suggested to correct the past mistakes. Additionally the section 72 which earlier was restricted to "Breach of Privacy" by mainly the Certifying Authorities is sought to be expanded to cover the case of the Bazee type.

...Naavi


The present section 67 of ITA-2000 states as under

67. 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

While the section could be invoked for "publishing", "Transmitting" and "Causing to be published", the term of imprisonment was 5 years for the first time offence and 10 years for subsequent time.  The definition of "Obscenity" was left for interpretation as per the facts of the case based on the effect to "deprave and corrupt persons who are likely to see.."

The proposed section is reproduced below.

New 67. Publishing  in electronic form of information which is obscene

(1) Save as provided in this Act under Section 79 which exempts intermediaries from liability in certain cases, 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  two years and with fine which may extend to  five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to  five years and also with fine which may extend to ten lakh rupees. 

(2) Whoever intentionally and knowingly publishes or transmits through electronic form any material which relates to child pornography, shall be punished with imprisonment for a term not less than three years and with a fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. 

Explanation: - For the purposes of this section “child pornography” means material that features a child engaged in sexually explicit conduct.

Exception – This sub-section (1) does not extent to –

(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

(ii) which is kept or used bon fide for religious purposes;

The first point to be noted here is that the section is not applicable to "Intermediaries as defined in Section 79". This includes Cyber Cafes. Hence Section 67 will no longer be applicable to Cyber Cafes barring the exception mentioned in Section 79 (Proposed) namely "conspiracy", "abetment" and "Prior knowledge".

The description of the obscenity remains the same but the period of imprisonment comes down from 5 years to 2 years for first instance and from 10 years to 5 years for subsequent instance.

However the sub clause (2) introduces the new offence of "Child Pornography" where the imprisonment could be 3 years fro the first instance and 7 years for the subsequent instance and the fine could be Rs 10 lakhs. The term "Child" however is not defined though the term "Child Pornography" is defined as "material that features a child engaged in sexually explicit conduct.". If the Bazee.com MMS participants are treated as "Children", this may mean that the IIT Student who was involved in the case may be given 3 year sentence and 10 lakh fine while Bazee.com would not be responsible.

The net impact of the changes made to Section 67 is to give immunity to "Intermediaries" which incidentally is a relief to Cyber Cafes. The reduction of the term of imprisonment could mean that the offence may not be considered cognizable even under CrPc. The increase in fine amount is of marginal importance though it is relevant in the context of "Power of the Controller and Adjudicator to Compound Offences"

[The amendments made to Section 72 in defining what is "Privacy" has some relation to the term "Obscenity" in electronic form and we shall therefore take a look at this section simultaneously. We shall discuss this in a subsequent article.]

[Will continue]

Naavi

September 1, 2005