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Updates: eBay India CEO arrested for allowing sale of porn on site
Posted by Badri Natarajan on Friday, December 17 @ 18:17:23 EST Computer Crime

The CEO of eBay India (called Baazee.com) was arrested today in connection with a scandal involving sale of a pornographic video CD on the site. (Indian law makes the sale/distribution/circulation, etc of "obscene" materials criminal under S.292 of the Indian Penal Code with some minor expansion of the offence under S.67 of the Information Technology Act. Although the definition of "obscene" is pretty broad, enforcement is extremely spotty, with hardcore pornography being freely available at most neighbourhood video stores.)

The case revolves around a video clip of a high school couple engaged in various sexual acts, which were filmed by the boyfriend using his mobile phone's video camera. (It is unclear if the girl knew about the filming). He sent the video clip to several friends' mobiles and things got rapidly out of hand until half of New Delhi had seen the clip on their phones, and there were front-page newspaper articles and TV talk shows devoted to the Decline in Morals in Our Society. Both teenagers have since been expelled from their school, and an arrest warrant has been issued for the boy, although he has not (yet) been arrested.

The clip was transferred to a video CD and put up for sale on Baazee.com by a college student who has since been arrested. Again, although facts are still coming out, it appears that the auction was up for a couple of days, but Baazee claims they pulled it as soon as they realized what it was.

I think the Delhi Police has basically been forced into Taking Action, irrespective of how ridiculous the action is, by the publicity this case has received.

Can you spell "chilling effects"? Arresting the CEO of Baazee.com on a completely unsupportable charge doesn't exactly inspire confidence.



The college student who put the CD up for sale is clearly liable under S.292 of the Indian Penal Code (assuming the clip is found to be obscene, which it probably is), and the high school kid will also be liable under S.67 of the IT Act for essentially the same offence, and probably under S.292 as well.

But arresting the CEO of Baazee.com is ridiculous. He's been arrested under S.67 of the IT Act which is a very narrowly drafted section prohibiting the transmission or publication (or causing the publication) of obscene materials in electronic form. Not only did he not do any of these things, the IT Act includes a safe harbour provision in S.79 which essentially exempts a "network service provider" from liability, if he can prove while asserting the defence that the offence happened without his knowledge (This is what Baazee claims happened..the police don't disagree - they just say he didn't take sufficient efforts to prevent such things from happening - how, I can't imagine).

More interesting is the general criminal offence of circulating obscenity, under S.292 of the Penal Code, which is not covered by the above safe harbour provision. I still think he's in the clear, but it isn't quite so clear cut.

S.292 prohibits distribution or circulation in any manner of an obscene object. It is arguable whether Baazee's unknowing, temporary hosting of the auction amounts to "distribution" or "circulation". Perhaps more relevant, the same section also prohibits taking part in or receiving profits from "any business in the course of which he knows or has reason to believe"...that obscene objects are put into circulation for the purposes of sale, public exhibition, etc. Again, I doubt whether there is sufficient mens rea in this situation to convict the CEO of Baazee - I don't see how he "knew or had reason to believe" what precisely was being sold on the site.

Perhaps more importantly, this will hopefully become an important test case for ISP/website liability under Indian law, if it ever reaches an appellate court. There is essentially no case law on this point, and not even any cases under the S.79 safe harbour provision that I am aware of.

The only relevant precedent I know is a suit filed against Rediff.com (an Indian news/portal/search site) a few years ago, under the same S.292 mentioned above alleging liability under the section because Rediff's search engine allowed access to pornography elsewhere on the web. Details are unclear, and I haven't been able to get a copy of the final judgment, but it appears that the case was essentially a publicity-seeking maneuver and never went anywhere after the initial publicity of the judge finding the existence of a prima facie case.

Also, that case was in a trial court, and I'm not sure if it really laid down law especially if it was dismissed at an early stage. I'm hoping the current case makes it up to the Delhi High Court (like a Circuit Court) or even the Supreme Court, and a muscular precedent preventing chilling effects on websites is laid down. Given the sheer frivolity of this prosecution, especially in relation to Baazee.com, there might be a good chance of that happening..

 
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