Internet Obscenity Law and Intermediary Liability in India – A Look at the Avnish Bajaj v. State case

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 27^th 2004, a report was filed stating that the item being sold was pornographic and featured minors. Between around 2030 hours on the 27^th and around 1000 hours on the 29^th, eight transactions took place from eight distinct users from various parts of the country. The police registered an FIR on 9^th December and obtained information about the working of the company by sending notices to Sharat Digumarti, Senior Manager, Trust and Safety, BIPL. On the 14^th, 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 17^th, 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

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[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.

Sleeping Partners

Sitting in Shankara's class sometimes transports me back to an Japhetian era. Except I'm quite sure the latter meant all the innuendo, and the former just assumes we don't think dirty enough (LOL).

Here are the most recent ones - "The girl is reluctant because I'm looking, but the boy just keeps trying"

"The girl does not protest - she should say, this is not the place - why don't you go under a tree outside?"

Well, yeah, the joke's half lost when it's not delivered right. It's impossible to mimic Shankara's delivery in written language. 

When he isn't making these 'sleazy' comments - he speaks like a statute. "Prakash did not teach is no excuse - you shall be deemed to know mortgages."

Given all this, and his writing the alphabet on the board, he is still one of the better teachers we have (note the use of teacher - and not lecturer). He is completely fair in his evaluation and bias plays no role anywhere. Most importantly, unlike most of the faculty, he knows english.

Addicted

I can't think of a moment in my life when I haven't been addicted. As far back as I can remember with clarity, I have always been addicted to something (there was TT in school, movies in 11th, pool in 12th, alcohol etc in I year. I stop here cos this is possibly where my current addiction took over. There isnt a very clear demarcation and the timelines get grayed. These are just approximate outlines). Most of the time it was harmless, but sometimes it's just degenerate and destructive. My addictions seem to pass only when I find something else to get addicted to (which happens when I get 'bored' of the previous addiction - for instance, I now see no point in playing pool as I have gotten decent at it and don't feel the drive any longer. Or the fact that over 96% of the movies and TV I now watch, I can predict the story to precision halfway through latest - which pretty much beats the purpose of watching it) It's a complete vicious cycle, which I just cannot break. 

This got me thinking. What is the cause of addiction? As always, I find all my answers in movies. I always feel that when in doubt, turn to art. Quite surprisingly, I find my answer in a very unlikely source. The movie is 'Road Trip' (yeah, it's one of those teenage adventure shitty crap - which makes you chuckle at how crude they can possibly get - this one is quite old and therefore, isn't so bad - it's surpisingly funny actually - nothing like band camp/naked mile/superbad). In this one of the characters (part of the main four) is constantly smoking weed. In one scene as he speaks to Grandpa Manilow - 

Grandpa: Are you gonna pass that doobie, or what?
Doobie? Yeah. Yeah, sorry.
Uh, thanks.
You know what your problem is?
You're all brains. Not enough cock and balls.
Actually, uh, people have been telling me that my whole life. In the sixth grade I got so worried about the situation in lraq, that I was on an adult dosage of Xanax. And by eighth grade, I was in therapy three times a week. And the truth is, weed is the only thing that could balance me out. (Source)

I think the root cause of all addiction is simple. It's boredom. All other causes (peer pressure, curiosity - well this stems from boredom anyway, emotional weakness) are secondary or may be triggers, at best. It all happens because you're bored. It is due to this that you seem to look for some way (by doing or consuming various things), to induce a chemical reaction that keeps the brain occupied (the aim being to get over the boredom). This leads me to believe that intelligent people are more suceptible to such addiction. It's a lot easier to bore an intelligent person than it is to bore a stupid person. 

Perhaps that is just it. We are constantly in a state of balancing our instant gratification with long term gain. This is possibly because we find ourselves without an aim, a direction. So many people feel there is no point in working (or living) as there is no passion in their life or there is really nothing to expect, except drudgery (myself included). 

But I digress.

I'm not addicted to weed, cocaine, alcohol, nicotine or tobacco. It's something that could either be far more serious or far less. For once, I feel helpless and totally out of control over it. Maybe the time has come to finally swallow my pride and ask for help and support. Maybe not just yet. I've gotten through everything else myself, I see no reason why I can't get through this one (oh yeah, that's still the pride talking - I haven't resorted to the 12 step programme yet, no reason to start now). 

Law school definitely doesn't help with any of this. It takes something as unique and interesting as the law and with te 'brilliant' teachers makes it as interesting, engaging and exciting as golf. Perhaps what we need are younger teachers, teachers who can better relate to students (NOT the juris freak, who'll just burst into tears if we asked him a doubt he could not answer). Courses need to be more engaging and should be taught with more vigour. Most teachers are so unenthused that students themselves feel there's absolutely no point in studying or bothering about the course ('scamming' being an easier, more efficient, quicker and possibly more rewarding way of dealing with courses). Criminal Law, wich is possibly the most intriguing of all laws was made into a drawn out lull, a dull ache that needed to be ignored (of course it did end with a bang for most of the batch). Quite simply, instead of cribbing about drug addiction in law school, the admin is much better off trying to understand why it happens and for god's sake improve the state of affairs in academics. If that is sorted out, everything would fall into place. Is it truly that difficult to find good teachers? What happens to all those fees we pay anyway?

GAANCHALI BIDI, KANNADA MAATHAADI…….!!

Got this as an email forward. Pasted, as is. Absolutely stunning (and quite true). Forgive the formatting.

Bill Gates organized an enormous session to recruit a new Chairman for Microsoft Europe. 5000 candidates assembled in a large room. One candidate is Raghu, an Indian guy. 

Bill Gates thanked all the candidates for coming and asking those who do not know JAVA programs to leave. 2000 people leave the room. Raghu says to Himself, "I do not know JAVA but I have nothing to lose if I stay. I'll Give it a try". 

Bill Gates asked the candidates who never had experience of managing more than 100 people to leave. 2000 people leave the room. Raghu says to himself 

"I never managed anybody by myself but I have nothing to lose if I stay. What can happen to me?" So he stays. 

Then Bill Gates asked candidates who do not have management diplomas to leave. 500 people leave the room. Raghu says to himself , "I left school at 15 but what have I got to lose?" So he stays in the room. 

Lastly, Bill Gates asked the candidates who do not speak Serbian - Croat to leave. 498 people leave the room. 

Raghu says to himself, " I do not speak one word of Serbian - Croat but what do I have to lose?" So he stays and finds himself with one other candidate. 

Everyone else has gone. 

Bill Gates joined them and said "Apparently you are the only two candidates who speak Serbo - Croat, so I'd now like to hear you have a conversation together in that language." 

Calmly, Raghu turns to the other candidate and says "En guru, aarama?" 

The other candidate answers "Nann magane, Sooryange Torcha??" 

GAANCHALI BIDI, KANNADA MAATHAADI…….!!

News!

News!

Is this really news? I mean, how could ANYONE (i refer here to the reporters) be so daft? I mean, who is stupider? The reporters or the French Government who apologised?

The Tmes Of India, a few weeks ago had on their first page a solemn report of some 200 odd deaths in a blast. On the right column they had a headline "Balle Balle at Galle" praising Harbhajan's greatness. Apart from the fact that the headline does NOT rhyme (no it's not pronounced that way), it seems a little insensitive. Below the fold on the same page, they had something about Shah Rukh's ankle getting sprained when he slipped on a diamond which had fallen off his wall, while he was exiting his Phantom. Why on earth is the news so irrelevant? 

Coming to Page 3, as shown in the movie brilliantly, what's the point? Who the hell cares what parties happen and who attended? It irks me to no end to read all this gossip about all these stars. But I still do. Personally, I think it's just us looking for cranks, holes or mistakes in the celebrities so we can always say, "Oh, they're human, too". Just lucky, compared to us. Why do we derive so much pleasure in others faults?

Personally, I have no qualms gossiping or 'sliming', or being slimed for that matter. In law school, it is taken to an extreme, but I never have had any issues with it. Sometimes it gets upsetting, but most of the time, it is just humour. The fact that my slime is heard by the party being slimed, has never concerned me. Such 'sliming', and I use the term as used in law school, is not done with any malice and is not meant to be secret. 

But there is one sort of 'sliming', a kind that disgusts me. It is when things are reported which have never been said, or never happened, without making it abs clear that it is a joke, with an intent to deceive or knowing that it is likely to deceive. This is something I just cannot stand. There is a thin line between such 'bitching' (as i term it) and 'sliming'. For me, the latter is perfectly acceptable.

I think the test lies in whether you mind if the party concerned happens to be standing behind you, as you speak. If you do, then it's best not said, for it shows you lack the courage to say it to the person's face. In such a case, it's best to keep quiet and not 'slime' or 'bitch'.

Some ppl of course make no distinction between the two. It's all the same to them. It is to these ppl that I would like to point out that ANY talk about another person, when the person is not around, positive or negative, can be regarded as 'sliming', as per their own definition. I am also confident that these ppl who complain about how slimy law school is, are actually the slimiest of them all. For not only do they slime, they also claim to abhor it. 

The funniest aspect of all this is that I've been called a 'slime' so many times that it ceases to affect me. I take pride nowadays in being called a 'slime'. I wonder, would calling me a 'slime', in itself, also amount to 'sliming'?

Mooting (and its futility?)

This may be a late response, but it is more than a response. I just use her post a starting point.

The temptation to write an angsty post about the futility of mooting is almost impossible to resist.

Almost.

Pssssst. It's futile. Completely. Don't whore your soul to inevitable ignominy.

Most times, how random things get, are funny, maybe even surprising. It is when one is at the receiving end of the brunt of the randomness, that how distressing it actually is, seems to hit one. Well, I am no judge of a moot court or the rankings, but in my eyes, the entire system followed in the University Selections (for that is ALL the experience in a moot court I have) seems absolutely random. 

I am not a stranger to this absolutely random arbitrariness. When in a college where the teachers have autonomy, it is normal to see such random results almost never commensurate with merit. It was slightly unnerving at first, but ince it always seemed to affect me positively, I chose to ignore it. 

Apart from my subjective opinion that people who were more deserving and most definitely better (myself not included) ended below those who didn't or weren't, I feel there are certain empirical reasons to believe that my mooting experience has been totally random. Three rounds of moots and not one bit of similarity between them. After 2 memorials and 6 judges (well 600 marks of orals, at any rate), it seems odd that the ranks ended up being determined by one judge, whose range of marking (3 to 70 odd) skewed all ranks. Well, the point of this post is not to crib. It is quite the opposite, actually.

I feel, as must be apparent already, that I deserved to do better than I actually did. I ended up somewhere near half, when my memorial marks alone would have placed me in the Top 10. My second round oral marls, total of three judges (out of 300) was less than my memo score (out of 100). But even after all this, I dont believe mooting is futile. I feel I learnt so much more from these 3 weeks than I had learnt in my entire law school life till date. Mooting helps in more ways than one. It helps you learn procedure. It helps you learn to research (quickly and accurately). It helps you focus. It helps you think. It helps you in myriad ways. 

What I am essentially trying to say is that apart from the slime, the randomness, the absolute disappointment etc etc, I still came out wealthier than I went in. What I regret is not doing this in my Second Year. I plan, as of now, to carry this on to my 5th. I may never make the top 5 due to the randomness, or because I'm just not good enough. But that is NOT the only reason I wish to moot. The entire process.

The process of spending one week thinking of nothing but the problem. Doing research. Every little argument is a victory. The satisfaction of looking at a finished memorial printed a few hours early to check objective errors. The euphoria of looking at the memo pass from your hands and into the hands of the MCS member, just in time, after running from Swathi. The process of looking to defend and make your arguments in absolute unpredictable randomness. The entire process makes mooting absolutely worth it. I would much rather write a dozen memos in a week than write a project, although even one of the former is more work than one of the latter.

At the end of all of this, the randomness seems so minor. The results are insignificant. It is the process that is meant to be enjoyed, and enjoyable it definitely is. After all, how much less (rather more) random, are actual Courts?

Palin

Seems Blogger's changed since I was last here. Whole new interface, new features etc etc. Seems the world DOES actually move on when I'm not around. That's good to hear of course, considering I can't be in all places at once.

I've decided to start writing again, but before I do, I just wanted to embed some videos of Palin. These are just spectacular.

Here's a link to the interviews of which the above was part.

Couric: You've cited Alaska's proximity to Russia as part of your foreign policy experience. What did you mean by that?

Sarah Palin: That Alaska has a very narrow maritime border between a foreign country, Russia, and, on our other side, the land-boundary that we have with Canada. It's funny that a comment like that was kinda made to … I don't know, you know … reporters.

Couric: Mocked?

Palin: Yeah, mocked, I guess that's the word, yeah.

Couric: Well, explain to me why that enhances your foreign-policy credentials.

Palin: Well, it certainly does, because our, our next-door neighbors are foreign countries, there in the state that I am the executive of. And there…

Couric: Have you ever been involved in any negotiations, for example, with the Russians?

Palin: We have trade missions back and forth, we do. It's very important when you consider even national security issues with Russia. As Putin rears his head and comes into the air space of the United States of America, where do they go? It's Alaska. It's just right over the border. It is from Alaska that we send those out to make sure that an eye is being kept on this very powerful nation, Russia, because they are right there, they are right next to our state. (Source: CBS)

And finally, the follow up to the first interview!