The Hindu Business Line : Baazee.com case

THE failure of the Delhi police to invoke Section 292 of the Indian Penal Code (IPC) in effecting the arrest of Mr Avnish Bajaj, Chief Executive Officer of the auction Web site Baazee.com, on charges of allowing the sale of VCDs showing two Delhi school students in an explicit sexual act, is intriguing in the extreme. Mr Bajaj has been arrested and remanded to judicial custody under Section 67 of the Information Technology Act, which deals with the transmission of obscene material through the electronic media.

While there may be some ambiguity in the IT Act with specific reference to the liability of Internet auction companies as also online marketplaces where buyers and sellers conduct transactions directly and without middlemen, Section 292 is absolutely clear about prohibition of "the sale, etc, of obscene books, etc."

The Section states: 138 (1) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it).

139[(2)] Whoever:

(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) 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, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section,

shall be punished 140 [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand 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 five thousand rupees].

140 [Exception] This section does not extend to:

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

(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 of learning or other objects of general concern, or

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

(b) any representation sculptured, engraved, painted or otherwise represented on or in

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]

The above exceptions manifestly do not apply to Bazee.com.

According to Mr Gautam Patel, Mumbai-based advocate and cyber-law expert, the IPC becomes relevant in the context of the argument put forward by some commentators that an on-line auction site cannot be held liable for crimes committed on it by its clientele.

A view has been expressed by some legal luminaries that the IT Act must be amended to limit the liability of the network service provider (including auction sites) to certain specified categories of the Act and to ensure that the network service provider is not held liable for all circumstances, barring the two currently set out in Section 79.

Mr Gautam Patel asserts — as a general principle and without any specific reference to the Bazee.com case — that no distinction can and should be made with regard to violations of the IPC, whether in the cyber or the real world.

As for the contention that an Internet auction portal cannot possibly be expected to know about the true nature of the transactions conducted on it, he points out that disclaimers and the doctrine of minimum standard liability ("know or have reason to know") have no relevance in instances involving the violation of the IPC.

In any event, Bazee.com is a business-to-commerce online firm and not a P2P (peer-to-peer; according to Whatis.com, P2P is "a communications model in which each party has the same capabilities and either party can initiate a communication session") network in which those maintaining it can claim reasonably that no offending data is stored in their servers.

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