The MMS Conundrum

The not-so-innocent sexual act between the two minor Delhi school students
has now left the front pages of the dailies. However, the saga-from the
creation of the video clip to its listing for sale on Bazee to the arrest of the
seller, an IIT Kharagpur student, and Baazee's CEO Avnish Bajaj-has not only
thrown the nation into a tizzy but sparked off a huge debate.

The furor revolves around the legality of the Delhi Police's action to
arrest Bajaj, who has been exonerated of the offence (read Bazee's
involvement) in a trial by media and industry, even before the judiciary had the
opportunity to hear the merit of the case.

Bajaj's
arrest also saw Internet-based activism taking off in India. Besides demanding
immediate release of Bajaj, the petition circulated by PassionFund CEO Mahesh
Murthy sought clarification from the Government on the legality of e-commerce in
India without ink-on-paper signatures and demand for immediate change in the IT
Act (ITA) 2000. FICCI Secretary General Amit Mitra also called for 'change in
the IT laws', a need that was acknowledged by Infosys' chief mentor Narayana
Murthy as well as the Commerce Minister Kamal Nath.

What's wrong with ITA 2000?

Experts suggest that while the IT Act has been used to book the Bazee
website for posting obscene electronic information on it and making it liable
for the same within Section 67 of the ITA 2000, Bajaj was arrested as per
Section 85(1) of the ITA 2000 which mandates that every person who was
responsible for the company's conduct of business, at the time the
contravention was committed, shall be guilty of the contravention and liable to
be proceeded against and punished accordingly.

The proviso to section 85 (1), however, provides that such person will not be
liable for punishment if it is proved that the contravention took place without
his knowledge or that all due diligence to prevent such contravention was
exercised. A similar safeguard has been provided to the network service provider
in the ITA 2000 under Section 79 which states that no person providing any
service as a network service provider shall be liable under this Act 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.

According to Pawan Duggal, a Supreme Court advocate, the problem lies in lack
of clarity in the Section 79 of ITA and the definition of 'network service
provider' as an intermediary. "I believe that Section 79 has not been
drafted in a crystal clear manner. The real import of Section 79 is also that
barring the two conditions stipulated therein, network service providers shall
be liable for all third party information or data made available by them. This
is clearly not a happy situation," he says.

There are other problems too indicates Mahesh Murthy. "While Section 79
offers safe harbor for the defendant if they can prove that either they were
unaware of the nature of such material on their network, or that they took
reasonable safeguards to prevent the entry of such material in to their network,
the point here is that-if charged, you have to prove your innocence after your
arrest-as opposed to normal legal practice of assuming innocence till guilt is
proven."

Murthy and most in the industry also feel that the right procedure would be
for prosecutors to gather evidence, go to a court of law, argue their case,
persuade the authority that an arrest is called for and then proceed. "This
trend of law is also contrary to the well-established principle of criminal
jurisprudence in India that a person in India is presumed to be innocent, unless
proved guilty," Murthy says in his petition.

Does that mean India needs to change the IT Act 2000 or is there a need to
take a more prudent approach in interpreting the law-by the industry, the
police and the judiciary?

The Case Points

'Due diligence' seems to the most crucial point that would decide Bajaj's
fate. The Delhi Police allege that no action was taken by either Bazee or Bajaj
till 32 hours of notice on the offensive clip. In the meanwhile, the clip was
sold to eight online buyers. Delhi Police claims that not only was it an act of
negligence on the part of Bajaj, but Baazee also profited by virtue of sale of
obscene pornographic material.

While Bazee and its CEO refute Delhi Police charges of the '32 hour gap'
and we wait for the court's decision on it, experts suggest that it would be
extremely difficult for them to get away with the fact that according to the
seller agreement with Ravi Raj, Bazee was expected to get 8% or Rs 750, which
ever was less, as commission from the sale of the MMS clip. Experts also argue
that from the prosecution's point it is immaterial whether or nor Bazee
received the payment or not. What is important is the intent and the fact that,
had the case not come to light, the company would have profited from the sale of
the clip.

Interestingly, the Police acted judiciously in the case of the eight
purchasers of the said MMS clip. According to experts, under Section 292, the
viewer of pornographic material is not deemed responsible if he does not
transmit it for profit, but only keeps it for his personal viewing. While
Vaibhav Parikh of Nishith Desai Associates, a specialist in intellectual
property, IT and e-commerce, is not sure whether the Court will take a contrary
stance on the eight purchasers or not, he feels that the police accepts the fact
that personal viewing of obscene material is not illegal as long as it can be
authenticated that it has not been transferred for means of public exhibition or
profit.

The IPC Aspect

While the furor remains centered around the ITA, we decided to check out the
Indian Penal Code and its fall out on Bazee and Bajaj. Parikh believes that it
is Section 292 of the IPC, which could turn out to be a greater threat for Bajaj.
"After all, Section 79 of the IT Act is merely a watered down version of
IPC Section 292." According to him, Section 292 is fairly all encompassing-it
holds a network service provider responsible for transmission of pornography or
other obscene materials, unless he/she can prove that this happened despite
him/her taking adequate due diligence.

The petition by Murthy also raised another interesting question on the
definition of network service provider when it argued that while the Police
arrested Bazee CEO, it apparently found no fault with the Director of the IIT,
who's network hosted the video clip. A senior legal expert, on conditions of
anonymity, said that, "There is a fair chance that the IIT-Kharagpur
Director would also deemed to be liable for prosecution," adding that,
under provisions of both the Section 292 of the IPC as well as the Section 67 of
the IT Act, he might be deemed to be even more responsible than Bajaj.

According to him, while Bajaj was only a third-party service provider, in
case of the IIT Director, the transgression happened in his own network by his
own student. Now if the court proves that he has not taken enough of due
diligence to prevent transmission of pornographic material on his own network,
he can be prosecuted-for Section 292 is very clear that the network service
provider will be held responsible for transmission of obscene material unless he
can prove that what happened was despite his taking due diligence.

Due Diligence

Talking about the issues raised on the 'due diligence', Chennai's
Cyber Law College director and founder of the NGO naavi.org N Vijayashankar says
that it might not be entirely correct that the 'due diligence' requirement
is not in keeping with the principle of Jurisprudence that 'everyone is
innocent until proven guilty' and the onus of proving innocence is shifted to
the accused by virtue.

"What Sections 79 and 85 of ITA 2000 imply is that after having proved
that a crime has in fact been committed in a network/company, 'due diligence'
will protect the network service provider or the company official from any of
his responsibilities," he explains.

Vijayashankar further argues, "Just because the Police tend to
misinterpret provisions in the pre-trial stage, it is incorrect to say that the
law is weak. Similarly, if the industry does not know how to present electronic
evidence as per the provisions of Section 65 B of Indian Evidence Act and they
lose their bail application, we cannot blame the law."

Don't Raise the Bogey...

Calling the industry not to raise the bogey that the 'law is wrong',
Vijayashankar in an article on naavi.org says that the Delhi Police had actually
very little choice but to go ahead with the arrest since this is an established
practice in the country.

He argues that if 'the exercise of due diligence' is to be considered by
the Police at the time of the detailed investigation and not at the preliminary
stage, then going ahead with the arrest and asking for remand for further
investigations is a natural process. Vijayashankar also says that while the
arrest may not affect Bajaj's career, the arrest of the IIT student might have
already spoiled his entire future. "Should the Police look at the
reasonableness of punishing this boy also during the preliminary
investigations," he asks.

A better approach, according to him, is to look at the issue of 'when'
and 'how' to arrest a person and set norms for arrests in all cases.
"It is only when we change these standards and clarify when the Police
should resort to arrest and when the arrest could be executed in the form of
lodging a 'Guest House' or in the form of a 'House Arrest' (as against
sending the accused to be in the company of pick pockets and petty criminals in
the Tihar jail or in the company of snakes in the Vellore jail), we can argue if
Bajaj's arrest was wrong," he says.

...Bring In Sensibility Instead

While the issue revolving around Police action against the Bazee CEO will
continue to be debated in and out of the Court, a bigger issue that the law
makers and the industry needs to worry about is educating people and bringing in
a sense of responsibility amongst the technology users.

While it would be foolish to think and spread the impression that the law
makers of world's largest democracy are against the Internet and e-commerce,
it will be worthwhile for companies-irrespective of their nature of business-to
review their IT mechanism as technology has penetrated deep in to the lives of
people. Similarly, it is also imperative for those formulating and enforcing the
law of the land to understand the changing business needs and come up with more
relevant norms.

While the naivety of the Delhi school kids has brought forth a major
techno-social issue, lets not forget that there are several such skeletons in
company cupboards across India Inc-a recent case being that of a mail in
circulation with photographs of two employees in compromising position in a BPO
company, most probably captured by the surveillance camera. A debate can be on
whether a company can be held solely responsible for the irresponsible behavior
of few errant employees?

The lesson: don't rubbish the law bring in sensibility instead.

Shubhendu Parth in
New Delhi/CyberMedia News

The Saga Continues...

Dec 24, 2004 Court grants bail to IIT
student

Dec 22, 2004 Court grants bail to minor boy

Dec 21, 2004 HC grants bail to Baazee.com
CEO

Dec 20, 2004 The 17-yr-old sent to police
custody

Dec 19, 2004 Delhi police arrests the Delhi
school student as he returns from Nepal

Dec 18, 2004 Metropolitan Magistrate
Nivedita Anil Sharma rejects Avnish Bajaj's bail plea. Remands him to judicial
custody till December 24

Dec 17, 2004 Delhi Police arrest Baazi.com
CEO Avnish Bajaj

Dec 16, 2004 Police brings Ravi Raj Singh to
Delhi

Dec 15, 2004 Ravi Raj Singh gets transit
remand

Dec 14, 2004 Police arrest Ravi Raj Singh on
charges of selling the MMS clip

Nov 29, 2004 Amidst media reports, Baazee
swings to action and removes the MMS sale listing at 10.09 am

Nov 27, 2004 Ravi Raj Singh lists the Delhi
School MMS clip for sale on Baazee site at 12.35 pm

Nov 25, 2004 Amidst media reports, school
expels the two students

Nov 25, 2004 Students' indecent MMS shocks
Delhi

CyberMedia News