The Hindu Business Line : Obscenity: `General laws won't help online media'

THE application of the general law to the electronic media has given rise to results which may lead to patent injustice, says a review of the Information Techology Act 2000 prepared by the law firm Amarchand & Mangaldas & Suresh A Shroff & Co.

The law firm has prepared the study for a non-profit organisation, The Internet & Online Association, which says it was created specifically to address the issues, concerns and growth-related to online media, e-commerce and the like.

The report is titled `Memorandum on Online Liability in respect of Laws on Obscenity and Sedition'.

One of the observations in the study is that the provisions of the IT Act that deal with regulation of obscene material suffers from a few definitional problems. This was in fact the very same issue that came up in discussions following the arrest of the CEO, Baazee.com, a few months ago.

A portal user had managed to put up an advertisement for sale of a pornographical video clipping.

The memorandum reinforces what critics of the arrest had been saying, that as regards the exemption of liability under Section 79 of the Act, certain terms are not defined.

These terms being `network service provider'; `due diligence'; and `transmits'.

`Network service provider' is a catch-all phrase under the IT Act, notes the report. It has been, in the form of an explanatory note, equated to an intermediary. The term intermediary has not been defined.

The directives of the European Union on Electronic commerce could be a guiding point for gathering international practices, notes the report. One Directive for instance, seeks to provide an exception to liability where a service provider's role is restricted to a technical process of operation and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored.

The directive recognises that the Internet has active and passive players, and provides immunity to passive players from liability.

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