The Hindu Business Line : Unnecessarily harsh?

THE CONTROVERSY TRIGGERED by the arrest of the Baazee.com Chief Executive Officer, Mr Avnish Bajaj, for selling objectionable material through the Internet auction site exposes the lacunae in the provisions of the Information Technology Act, 2000, which govern offences of this kind. In Section 67, the Act defines an offender as "Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest... " The operative words are "publishes", "transmits" and "causes to be published". Baazee.com would argue that these do not describe the role it played in the transaction for the offensive video did not pass through its Web site. Yet the open-ended provisions of the law fail to draw a distinction between the actual vendor of the objectionable material — pornography in this case — and the intermediary — such as an Internet auction site — used to facilitate the commerce. To put both actions on the same pedestal, without the necessary checks and balances, can prove to be a harsh measure for Internet auction sites in the country.

The hazards of conducting commerce in digital content are all too evident. Since such auction sites typically put up thousands of items for sale every day, full knowledge of all the material is impossible to establish even for a site manager, let alone the CEO. The sites can at best insulate themselves with a few safety clauses in their user agreements. In this case, the agreement signed with each user of the Baazee.com site expressly forbids the sale of pornographic material; any transaction violative of the agreement that is brought to the attention of the site manager is liable to be taken off the site The law in the US has recognised this hazard which is why it allows a network service provider the opportunity to remove any objectionable material from the Web site and prescribes action only if the parties concerned fail to act on it. Had Baazee.com been subject to this law, it would have remained in the clear, for it removed the offending item from its auction list once it was alerted to the transgression. Even without that beneficial legal framework here, its CEO ought to have been entitled to the right to liberty which has been curtailed by his arrest. There is no reason to suppose that he would destroy evidence or intimidate witnesses to weaken the prosecution's case.

Auction sites such as Baazee.com do have an escape clause in Section 85 of the IT Act which states that they would not be liable for punishment if they can prove that the contravention took place without their knowledge or that they exercised all due diligence to prevent such contravention. This clause in the IT Act testifies to the special nature of e-commerce. Since the ambit of the Act is fairly wide in scope for covering cyber crimes, a distinction has to be made between the different types of cyber crimes and the action that can be taken depending on the gravity of the offence.

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