'Baazee case will set precedent'

The students sex scandal -- a videotape of two schoolchildren in sexual acts, taken by a third student -- has opened many Pandora's boxes. Questions about morality in schools and the use of sophisticated technology are just two of the most obvious. A third box was opened after an Indian Institute of Technology, Kharagpur, student decided to sell a CD containing the sexual act on the auction web site, baazee.com

While the IIT student was arrested for peddling pornography, so was the chief executive of baazee.com, Avnish Bajaj, who was held responsible since the sale had taken place on his site. baazee.com is owned by the giant American auction company Ebay.

Bajaj's arrest raises many concerns. While some observers have raised the question of corporate responsibility, there is also the question of how responsible is the CEO of an Internet site that is open to the public to buy and sell. The web site plays the role of a facilitator, allowing the public to engage in trade, and considering that much of the buying and selling is automated through enabling software, individuals are not directly involved.

The Indian Information Technology Act 2000 was passed with the idea of helping Indian software business grow and yet ensure that the same did not give free rein to people, as seems to have happened in the school students scandal. In a sense, this case is among the first that pits the new world of high and fast evolving technology, with the old world of jurisprudence.

Indranil Ghosh and Joseph Koshy, partner and senior associate at Fox Mandal, a solicitors and advocates firm, spoke to Deputy Managing Editor Amberish K Diwanji in New Delhi about the case and what it portends.

How is baazee.com is responsible for this act of buying and selling?

Indranil Ghosh: As per the Information Technology Act 2002, Section 67, a web site is responsible publishing or transmitting material that is obscene is responsible. But I must add that as per Section 79, if it can be proved that this action happened without his knowledge or in spite of his efforts to the contrary, then he is not necessarily responsible. In that sense, Section 79 is an escape clause (Sections 67 and 79 are listed below.)

As per information know today, the CD was first put up for sale on 27th (of November) and was being sold till the 5th (of December). In such a scenario, baazee.com should have come to know of what was happening on their site. It was on the 5th that the site took some action and stopped the sale.

baazee.com is a site where tens of thousands of people come in to buy and sell every day. How is it physically possible for any person to actually keep track of each and every sale?

Also Read: Baazee case: Making sense of nonsense

Indranil Ghosh: The answer is how one operates the web site. If you can prove that you had taken adequate measures to stop the sale, then one has a genuine excuse. True, the site did not actually do the selling, but if it allowed such a sale, then as per the existing laws, it is responsible. After all, the site is providing the server and the site.

baazee.com does make a declaration that it won't permit anything illegal or the selling of pornographic material on its site, but the question that will come up is how far it implements its own standards and rules. And it also depends on the bona fides of the company, if it can show that it acted in good faith, undertook measures that were necessary, etc. This is where Section 79 comes in.

Mr Bajaj's arrest has created a worldwide flutter.

Joseph Koshy: Much of the trial was by the media.

Indranil Ghosh: This (the students sex scandal) is a high profile case.

Is it fair to hold him directly responsible for something that happened because of technology.

Indranil Ghosh: The problem with Section 67 is that it is very wide and the problem with criminal law is that initially, you can't prove anything. So when you apply for bail, you can't say that 'I have undertaken so and so steps' Until the investigation is complete, the criminal courts are not going to accept bail applications.

I come back to my earlier question. A site, once it is ready, runs mostly automatically on its software. How much is the CEO, or even the staff, directly responsible for some lapses that might occur by some persons using the site?

Indranil Ghosh: I would say that the web sites will have to be one step ahead of those likely to transgress the law.

But that might not be possible. For example, in doing a search, a person might search for pornography through certain combinations of words or letters. It is impossible to ban all such combinations and permutations.

Joseph Koshy: If you visit a search engine and search for a particular object, the engine throws up some results. This is the job of the search engine. And here Mr Ghosh is right: Our law is not totally appropriate enough. It is effective enough but we do need a little more clarity.

'Transmitting' is a very big word, but here the engine is only providing the information. And when one clicks on a site thrown up, the reader is taken to another site outside the search engine. So really to blame a search engine to not be able to cut off objectionable sites completely is a bit harsh.

Indranil Ghosh: That is why what action the officials take after coming to know of something illegal happening becomes very important.

But ironically, as a site becomes more popular and more automated, you have more visitors and fewer people to monitor their actions. It is physically impossible for anyone to keep tabs on some million clicks through a day. I mean, how guilty is the knife maker if someone uses if for murder instead of using it for cutting vegetables?

Indranil Ghosh: I would say this would depend on the facts of the case as to when did they (baazee.com officials) come to know about this sale (of the CD containing the sexual acts); what action they took thereafter, etc. That is very important. If it can be shown that nothing was done after becoming aware of the wrongdoing, then there is a case.

Joseph Koshy: In that sense, the only protection comes under Section 79, which provides the escape window to sites that are open to the public.

But is the site/firm responsible?

Let me give you an example. Suppose I use my office computer to download music, which is against the law. And my firm is not in the business of selling music. Now, not only am I guilty, but so are my bosses since I have been using my office computers even though they would have absolutely no clue as to what I am up to. In that sense, one is responsible for one's site or firm, even if you may not be aware of what all is happening at the bottom.

Indranil Ghosh: But here, the Supreme Court and high courts have been intervening to point out that in every case, the top directors cannot always be held directly responsible and their culpability lies in the facts of each case.

There haven't been too many such cases.

Indranil Ghosh: Everyone is watching since this is a new case and many aspects remain unknown. It will set a precedent for the future. The IT Act will undergo changes as the cases evolve.

There is also the perception the laws are not keeping up with the fast moving technology world.

Joseph Koshy: A problem is that our magistrates are quite cut off from this emerging new world. A magistrate is day in and day out extremely busy handling cases of theft, dowry, murder, and such crimes; he or she hardly has time to know about the new technology changes taking place. Then suddenly, they are confronted with such a new case. In such a scene, they take recourse to the laws as they know it, and this is understandable.

Indranil Ghosh: But I must add that the courts do keep abreast of changing perceptions. A few years ago, in labour cases, the courts were almost always pro-labour, now they are pro-management; earlier tenants could get away with anything, now it is the landlords whose pleas are heard. So laws and judges do keep abreast of changing perceptions and as they become aware of IT and its implications, they too will apply the law as required.

Relevant sections of the Information Technology Act, 2000:

Section 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 the first conviction 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.

Section 79: 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.