1. INTRODUCTION
This essay looks at the liability of Internet intermediaries that host material that is obscene as per Indian law. The essay is limited in scope to those situations where the material has been hosted by a third party and without the knowledge of the intermediary. It looks at the standard of care that is expected of an Internet intermediary in India in relation to the listings it puts up. To put this in another way, the essay looks at what obligation an Internet intermediary has to ensure that the material that they are hosting does not violate the obscenity law in India. The essay seeks to defend the law as laid down by the aforementioned judgement and argues that the amendment recently passed ought to be looked at again, or in the interim be tackled by the issue of strict guidelines for the intermediaries to follow.
2. CASE SUMMARY
2.1. Background Facts
The case dealt with the sale of the DPS MMS[1] on the website http://www.bazee.com. The website was run by Baazee India Private Limited (BIPL)[2] and was merely an online marketplace, a platform where buyers and sellers could interact. It had a registration process and after verification of first time sellers, users could post items for sale on the site. A user listed the aforementioned MMS clip for sale using a pseudonym ‘Alice Electronics’ and named it ‘Item 27877408 - DPS Girls having fun!!! full video + Baazee points.’[3] It was listed at Rs. 125. At around 2020 hours on November 27th 2004, a report was filed stating that the item being sold was pornographic and featured minors. Between around 2030 hours on the 27th and around 1000 hours on the 29th, eight transactions took place from eight distinct users from various parts of the country. The police registered an FIR on 9th December and obtained information about the working of the company by sending notices to Sharat Digumarti, Senior Manager, Trust and Safety, BIPL. On the 14th, the Managing Director, BIPL, Avnish Bajaj wrote a letter to the police explaining that he was responsible for the India operations of the Company and his responsibility included policy decisions, planning, control and overall supervision of the day-to-day functioning of the organization. On the 17th, the police arrested Bajaj as well as the seller of the clip. A charge sheet was filed naming the seller, Bajaj and Digumarti as Accused Nos. 1, 2 and 3. The present petition was filed by Bajaj under Section 482 of the Code of Criminal Procedure asking to quash the aforementioned criminal proceedings as no offences had been made out.
2.2. Judgement
Most of the judgement rendered by Justice Muralidhar discusses whether the liability of the petitioner, Bajaj both in his personal as well as professional capacities has been made out prima facie. However, what is relevant for the purposes of this essay is the part of the judgement that deals with the liability of the intermediary – the company running the website. The petitioner did not contest the obscenity of the video clip but stated that the highest that the website could be held accountable for was the listing on the site as the transfer of the MMS clip took place directly between the buyer and seller without the intervention of the company. The Court dealt with the issues of the listing and the video separately.
2.2.1. The Listing (Item Description)
The Court held that in relation to the listing itself, which was deemed to be obscene due to its wording,[4] an offence under Section 292 of the Indian Penal Code, 1860 the ingredients of which are that the obscene object was “publicly exhibited or in any manner put into circulation” or if the object was “in his possession”. It was held that although the listing was put up by the seller, it was in the possession of BIPL and once it went up on the website, it was “publicly exhibited” by the website. Therefore, the offence under Section 292 was prima facie attracted.
2.2.2. The Video
The Court held that placing an obscene video a click away would come within the ambit of Section 292 as it amounted to making known where such obscene object could be procured. In the words of the Court, the “…advertisement might itself have been inserted by the seller but the website facilitated the sale by carrying the listing which informed the potential buyer that such a video clip that is pornographic can be procured for a price.” The situation is compared to the selling of an obscene object through announcement on the notice board of a club or association. The Court felt that in such a case, the club itself would be subject to prosecution for facilitating the sale. In the words of the Court, “[b]y not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale, the website ran a risk of having imputed to it the knowledge that such an object was in fact obscene” The Court held that as per the strict liability imposed by Section 292, knowledge of the listing would be imputed to the company publishing. However, this was a rebuttable presumption and the burden lay on the company to prove that it exercised due care. The Court then insists on a strict standard of care to be imposed on Internet intermediaries. “The proliferation of the internet and the possibility of widespread use through instant transmission of pornographic material, calls for a strict standard having to be insisted upon.”
3. IN DEFENCE OF THE JUDGEMENT
In this Section the judgement is defended in light of the law prevalent in India. It is divided into two parts. The first part defends the judgement in light of interpretation of the written letter of the law and it is argued in the second part that the judgement is sound, jurisprudentially.
3.1. Statutory Interpretation
Section 292(2)(c) of the Indian Penal Code states that whoever “takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation” commits an offence. Section 67 of the Information Technology Act makes it an offence to publish, transmit or cause 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”. Both the Sections make it an offence to put into circulation or cause to be published anything obscene. It is clear therefore that an intermediary would come within the fold of both these Sections.
3.2. Jurisprudential soundness
In this section, the essay looks at the ideal position of law keeping the end result in mind. As stated earlier, the essay deals with intermediary liability in relation to obscenity law. It does not deal with intermediary in other cases such as defamation or copyright infringement. Obscenity law has been enacted to be more stringent as it has a larger impact on society as opposed to the other laws stated above that are mainly in personam. Therefore, the standard of care for cases of obscenity especially when it deals with minors would be far greater than that for any other sort of breach. The Internet is a vast array of computers that is impossible to police by one single entity.[5] From a law and economics perspective, it is essential that the price of policing the Internet be borne by the party for whom it would cost the least.[6] For a central entity like the Government to regulate and police content, it would cost a lot more than for the intermediary that is hosting the data to check before it puts up the data. Adequate automated filters would suffice to ensure that no offensive material went up on the site. Keeping the end result in mind, that is the prevention of proliferation of objects offensive to public morality,
4. PRESENT LAW DEALING WITH INTERMEDIARIES
Under the erstwhile Section 79 of the Information Technology Act,[7] if the intermediary proves that the offence was committed was without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention. However, the standing committee report[8] asked that Section 79 be strengthened and worded in positive terms asking for a definite obligation on the part of the intermediary. The final Section 79, as it stands today reads that intermediaries cannot be held liable notwithstanding any other law. There are a few exceptions provided, but for the most part unless the intermediary has direct knowledge or has knowingly abetted the offence, it cannot be held liable. However, the saving grace is found in Section 79(4) where the intermediary is supposed to observe such other guidelines as the Central Government may prescribe. This essentially means that the Central Government can dictate the extent or standard of care that the intermediary is supposed to follow. It is argued that this middle path approach to the problem is less of a middle path and more in favour of greater intermediary liability. The Central Government is free to prescribe the extent of obligation and thereby it can dictate that due diligence and adequate filters are essential as far as the intermediary is concerned.
5. CONCLUSION:
There has constantly been a tussle in determining the extent of Governmental regulation in all spheres of life. The Internet is no different. By this judgement, a push for self-regulation by intermediaries was mooted, and with penal consequences to ensure that the intermediaries do the regulation diligently. True this would cast a greater obligation and cost on the intermediary, but this obligation is necessary and justified as the intermediary is using the Internet as a means of profit. Some of that profit can and should be directed towards ensuring that public interest and societal norms are not violated or adversely affected. The judgement here draws the line in the right place in relation to obscenity law and the difficulty faced by intermediaries in policing third party content,[9] specifically where minors are involved. The judgement did not declare Avnish Bajaj guilty. It only stated that he could be guilty, that is, a prima facie case was made out. Under the current law, after the 2008 amendment, barring the existence of any guidelines by the Central Government, no prima facie case would also be made out due to the non-obstante clause present in Section 79 of the Information Technology Act. It is felt that this move by the legislature undermines the importance of public morals and decency, while trying to protect the bottom line of the intermediaries. It is hoped that the Central Government brings this under control by the issue of adequate guidelines that impose a strict standard of scrutiny and diligence as that[1] This was a video clip featuring two students of Delhi Public School (DPS) in somewhat sexually explicit conditions. It was recorded on a phone and sent by one of the students to his friends via MMS. This video later found its way onto the internet and was listed for sale on bazee.com.
[2] The company has now been acquired by EBay Inc., USA and has been renamed EBay India Private Limited (EIPL).
[3] The item description read “DPS Girls having fun!!! Do you want to see that video clip which has rocked the whole DELHI and now has become a hot point of discussion in the entire Nation? YES, Then what are you waiting for!!! Just order for this product and it will be delivered to you within few hours. This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in very sexual explicit conditions. Please note: This video clip of around 2:30 Minutes and will be send to you as an email attachment.”
[4] See Supra Note 4 for words of listing which included the words “very sexual explicit conditions” which was deemed to appeal to the prurient interest of man and satisfied the test laid down by Section 292.
[5] As stated by Matthan “The Internet is a giant network of individual computers which are interconnected through a complicated structure of servers and designed to withstand a nuclear attack. From its inception, the network was designed to be a decentralised, self-maintaining series of links between computers and computer networks, capable of rapidly transmitting communications without any direct human involvement or control… As a result of this type of structure, the fact of the matter is that no single entity is responsible or capable of managing or regulating the Internet… There is no centralised storage location, control point or communications channel for the Internet, and it would not be technically feasible for a single entity to control all the information conveyed on the Internet.” See Rahul Matthan, The Law Relating to Computers and the Internet, 58-59 (New Delhi: Butterworths India, 2000).
[6] See Generally Mann and Belzley, “The Promise of Internet Intermediary Liability”, The University of Texas School of Law – Law and Economics Working Paper No. 045, 2005.
[7] This was the Section as it stood when the Delhi High Court decided the aforementioned case.
[8] Report of the Parliamentary Standing Committee on Information Technology, 2006.
[9] The judgement in numerous places makes allusions to the failure of filters and further the time delay between the clip being notified as obscene by Community Watch and the actual removal of the listing. It refers to the fact that policing third party content is not easy, but is much easier for an intermediary than for a Central entity like the Government.
