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The ignoble peccadilloes of a Delhi school students and the subsequent peddling of their now infamous MMS clip on the Baazee site has opened up a Pandora's box in the Indian legal firmament. Legal luminaries are hard at work and John Grisham-esque courtroom dramas are on the anvil once the courts open in the new year.

It would perhaps be more judicious at this junction to examine how the existing laws stand scrutiny to their international counterparts and whether amendments are required in them.

Vaibhav Parikh, who heads the technology law practice at Nishith Desai Associates, opines that the Bazee case would not have raised much brouhaha in the US where interpretation of what constitutes pornography is much more liberal. "But then you have to consider that the definition of pornography works differently across people, across different time periods and, most significantly, across different community cultures." While the West, like the US and UK, are more liberal, there are similar enforcements, if not stricter, according to laws prevalent in Singapore and China. In the US, what is looked at more seriously is the issue of pedophilia or child pornography. The US has an Online Child Pornography Preventive Act, whereby strict measures are taken to deter transmission of pornographic acts that involve minors.

Does the law in India require big time amendments, given the international set up? Parikh suggests that this could be done in two ways-either use only Sections 67 and 79 of IT Act as tools for prosecution after factoring in the issue of cross-border publication or make necessary amendments to Section 67 so that it supplements Section 292 of IPC.

The IPC was framed during the 1860s when no one even dreamt of issues like cross-border publications. But with today's technological advances, this has become an imperative. Parikh asks what happens if the e-commerce site was registered in India, server hosted in the US and domain registered in another country. "Bajaj is a US citizen and could have been in US. What would the Indian prosecution have done in that case?"

What is most important at this stage is to amend Section 67 of the IT Act to supplement Section 292 (IPC). Parikh takes the example of Section I of the IT Act, which deals with an e-commerce contract. "It nicely supplements the Contract Act; while the IT Act explains an e-commerce transaction and the Contract Act defines what entails a Contract. And their mutual consummation leaves little scope for ambiguity," says Parikh. This should be the precise prescription for Sections 67 (IT Act) and Section 292 (IPC). Currently, Section 67, being just a watered down version of Section 292, serves little purpose.

Incidentally, India would do well to copy the provisions of the Digital Millennium Copyright Act, 1998 of the US. Though this deals more with IP violation rights, it also defines issues about liability, especially in an e-commerce kind of scenario. The law may be extrapolated in the necessary manner and incorporated into Indian Acts.

This is particularly pertinent in the case where the Social Service Branch of the Mumbai Police has sent a notice to Baazee for selling fake brands through its website. Here, Parikh feels that Baazee cannot be held responsible for what is advertised on its site, as it would not be possible for them to ascertain the quality of each product auctioned through them. In case of its parent company eBay, the Digital Millennium Copyright Act exactly takes care of this by informing the site about any such violation. Only if such advices go unheeded, does action get started against the site.

Last but not the least, the onus of proving that "due diligence" has not been taken is on Delhi Police and not Bajaj. "Even if Bajaj now proves that adequate "due diligence" was taken, the arrest has already hurt his credibility." The common consensus among the legal fraternity is that this case has uncorked a huge lacuna in cyber law. This does not come as a surprise as the virtual world is a relatively new domain with loopholes in the legal framework. Any judgment would set a precedent for such cases in future in this country.

Rajneesh De

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