Liability of network service providers / intermediaries, for the offence of cyber pornography under section 67 of the I.T. Act, 2000

Certain interesting legal questions are likely to arise with respect to the liability of network service providers for the offence of cyber pornography under section 67 of the I.T.

Act, 2000. These are some of the legal questions that are likely to confront judicial minds in the times to come, for their verdict as final interpreters of the law.

* Do search engines cause publishing of electronic obscenity?

* Does the blog service provider who sets up a blog for netizens to express views cause publishing of electronic obscenity, when a netizen posts porn on the blog?

* Does the bulletin board service provider cause publishing of electronic obscenity when the netizen posts pornographic material thereon?

* Does the auction web-site (not 'bazee.com' and those similarly placed) cause publishing of electronic obscenity if .. " obscene content is itself uploaded on the web-site (unlike the bazee.com case)?

* Is the ISP liable for causing publishing of electronic obscenity, by providing band-width and access to cyber pornography through the Internet?

* Is the telecom service provider on whose network electronic obscenity is mounted, liable for causing the publishing thereof when sent to a large number of people (for e.g. the 'DPS MMS' clipping)?

*Is the e-mail service provider on/through whose network electronic obscenity is sent to a large number of people as bulk - mail, liable for causing the publishing thereof?

The words "causes to be published in the electronic form" any obscene material, in section 67 I.T. Act, 2000 are rather broad, to cover all proximate causes to the publishing of electronic obscenity: The words are unqualified and the law can be applied to a spectrum of intermediate activities that can be alleged as causes of publishing obscenity in electronic form. These words are amenable to misuse and erroneous application. 'On a reasonable construction, remote causes would not be covered especially since section 67 is a penal statute. Mens rea or guilty mind is required to be proved before any offence can be said to be complete. However, the law against ) obscenity has been applied substantially on the principle of strict liability with intention/mens rea playing a minimal role.

All the aforesaid intermediaries can be accused of causing the publishing of electronic obscenity thus putting them through the ordeal of criminal trial. One shudders to imagine their vulnerability of facing multiple prosecutions and persecutions, thanks to the broad words used in section 67. Moreover, as argued earlier, section 79 is a weak 'protection that is almost a farce and would not come to the immediate rescue of these intermediaries. Section 79, as argued earlier, comes to the rescue of intermediaries / network service providers too late in day i.e. at the stage of leading defence evidence which is at the end of the criminal trial, after all the ordeal has, been faced by the accused.

However, taking the words "causes to be published" as they are, it -is necessary to examine the question as to the liability of these intermediaries for the offence of cyber pornography under section 67.

Search engines: It may be argued on behalf of search engine? that they are like a dictionary or a map. If the map of Amsterdam shows-the red light area there, does it amount to abetment or a cause of prostitution? There is a general misconception about what search engines actually do, The subject one wishes to access on the internet is searched by the search engines and the resources on the subject are placed before the netizen. The netizen may choose to access any of such web-sites, the addresses of which are made available to him. It is the browser and not the search engine that makes the web-pages selected to be accessed, available to the netizen. Hence, it may be argued that the search engine is no more than a roadmap cum ­ dictionary. A search engine is like a pair of eyes with a mind, to search through the Internet as commanded, leaving the choice of access to the netizen. Beyond this point, it is the browser technology and the human act that leads the netizen to the desired destination, whether it is cyber pornography or a discourse on medication. In my opinion, search engines do not cause the. publishing of. electronic obscenity and hence are not liable under section 67

Blog service providers and bulletin board service providers: It may be argued on behalf of the blog service provider and the bulletin board service provider that they merely create the technological platform and provide web­ space on which people freely express their views and exercise their freedom of speech and expression. If may be further argued on their behalf that the medium of a blag that gives netizens the opportunity and freedom to post their views spontaneously at any time, itself loses its purpose if they were duty bound to assess the material before its posting on the blog. Though to impose criminal liability under section 67 may not be justified on the blog service providers and bulletin board service providers but they are liable under section 67 just as publishers printers and sellers of newspapers, journals and book publishers are liable under section 292 I.P.C. for the obscene articles or material authored by others.

To save blog and bulletin boards as mediums for people at large to spontaneously-y exercise their freedom of speech . and expression, standards of due-diligence upon the service provider including keeping a watch on these mediums and removal of objectionable material (e.g. pornography) within the shortest time-frame would be a reasonable solution that balances the freedom of speech and expression with larger social interests.

Auction web-sites: An auction web-site that enables the posting of the obscene material j content" itself (unlike the 'bazee.com' situation) is squarely liable for causing the publishing of electronic obscenity. They must take responsibility for posting of obscene material j content on their web-site. They cannot be heard to argue that it is' not . possible f0r them to scan all material that is being uploaded on their web-site, due to the heavy traffic of material being posted. Just as the publisher of a newspaper or journal containing obscene material authored by another, cannot claim innocence on the ground of size or number of articles, auction web-sites cannot too. Hence, they are liable under the present form of section 67 of the LT. Act, 2000.

Internet Service Providers (ISPs), telecom service provider.; and. E-mail service providers: ISPs, telecom service providers and e-mail service providers are purely technology service providers who have nothing to do with the content that is transmitted through their networks. Since telecom se~vice providers and e-mail service providers cause transmission of content from the originator to the addressee and do not cause publishing,' they would not be covered in section 67 as causing transmission of obscene material is not an offence.

However, it may be argued that in cases where obscene material is transmitted by the e-mail service provider or telecom service provider to a long list of persons, they would be liable as it would amount to causing publishing of obscene material. It is difficult to accept such an argument. Since they are purely technology providers, even though transmitting obscene content to many may amount to causing publishing, yet, as technology providers, mens rea cannot be attributed to telecom service providers and email service provid~rs. However, as mens rea plays a minimal role in the offence of obscenity/pornography, e-mail service providers and telecom service providers are vulnerable to the harassment of multiple persecutions and prosecutions. Although they should not be made liable but are presently in the vulnerable zone of being prosecuted for the offence under section 67 of the LT. Act, 2000.

As ISPs (Internet Service Provider) merely provide technology in the form of band-width and enable access to the Internet they cannot be made liable for causing any publication. The role of an ISP does not constitute a proximate cause of publishing. It is too remote a cause to attribute knowledge of obscenity or m~ns rea upon the ISP.

Web-hosting companies: Similarly, providing technical infrastructure to web-sites such as web hosting etc. are also purely technological s~rvices that cannot be said to be the causes of publishing and hence web-hosting companies would not be liable for cyber pornography under section 67. The role of a web hosting company is not a proximate cause of publishing.