Under ITA-2000, Cyber Cafes were not specifically
defined. However they could be considered as "Intermediaries" and hence
Section 79 (old) was applicable to them. This made them liable for
offences and contraventions subject to the following of "Due Diligence
Practices". Section 85(old) also applied to such entities. Further in the
states where specific laws were available for Cyber Cafes, Section 65
(old) was also applicable in respect of maintenance of visitor's
registers. The state laws regulating the Cyber Cafes also defined the term
"Cyber Cafe".
ITAA(p)-2005 (We shall use this abbreviation for the
amended act proposed by the "Expert Committee") now proceeds to define the
term Cyber Cafe and also re define Section 79. This will have a
significant impact on the activities of Cyber Cafes as discussed below....Naavi
Cyber Cafes are one of the important stake holders in
the Cyber Industry in India to whom the ITAA (p)-2005 has relevance.
Police in every part of the country have been going after them to book
them under several sections of ITA-2000 primarily Section 67. Most of
these cases are where public have been allowed to visit pornographic
websites through the Cyber Cafe. Mumbai and Karnataka had already passed
regulations within their state jurisdictions . These regulations define
their term "Cyber Cafes", their responsibilities and also intended
punishments for contraventions.
It was therefore of interest to see how the proposed
amendments would address the issue of regulating Cyber Cafes.
From the provisions now announced it appears that the
expert committee (This term refers to the committee which has produced the
draft of the ITAA (p)-2005) has failed to take note of the existing laws
on Cyber Cafes in these states and proceeded to make changes. In all
fairness it can be stated that the Committee was unaware of the existence
of these laws since there is no mention of the same in the report.
Alternatively, the committee must have taken the view that the laws passed
by the state are subordinate to the ITA-2000 and hence it would be the
responsibility of the states to automatically bring it in tune with the
ITAA(P)-2005 as and when it becomes effective.
To cite an example, the term "Cyber Cafe" has been
defined in the Karnataka IT rules as follows:
“Cyber Café” means a premises where the Cyber Café Owner/Network Service
Provider provides the computer services including Internet access
to the public.
Now ITAA(p)-2005
proposes to define Cyber Cafes as follows.
Cyber Cafes
have been defined in two places in the ITAA(p)
Firstly,
Section 2(nn) defines Cyber Cafes directly, as
(nn)
"Cyber
Café”
means a place where
access to electronic form
is provided to the public
Further Section 79 (amended) states
Sec 79
(Explanation): ‘Intermediary’ shall include, but not limited to, telecom
service providers, network service providers, Internet service
providers, web-hosting service providers, search engines including
on-line auction sites, online-market places, and Cyber Cafes.
The term s
"Intermediaries" is in turn defined as
2 (w) "intermediary"
with respect to any particular electronic record means any person
who on behalf of another person receives, stores or transmits that
record
or
provides any service with respect to that electronic
record
Under the Karnataka Act, Cyber Cafe services may
include any form of "Computer Services". The ITAA amendment also appears
to be similar since it defines any service to public providing access to
"Electronic Form" as a Cyber Cafe.
This definition is much broader than the definition of
the "Intermediary". The intermediary acts on behalf of another person and
handles third party data. On the other hand there are many services where
Electronic Form access is provided where the data belongs to the system
owner.
To give an example, a kiosk run by Railways to provide
information on trains etc is now a "Cyber Cafe". The village kiosks giving
information to farmers on crops etc maintained by the Village Panchayat is
now a "Cyber Cafe". etc. At the same time, services to "Non Public" such
as students in a college, members in a Club etc may not be considered as
"Cyber Cafe".
They may still be an "Intermediary not being a Cyber
Cafe".
Now, let us look at the implications of this
definition.
The revised Section 79 now reads as follows:
79. Exemption from liability of intermediary in
certain case
1.
An “Intermediary” shall not be
liable under any law for the time being in force, for any third
party information, data, or link made available by him, except when
the intermediary has conspired or abetted in the commission of the
unlawful act.
2.
The provisions of sub-section (1)
shall apply in circumstances including but not limited to where:
a.
Intermediary’s function is
limited to giving access to a communication network over which
information made available by third parties is transmitted or
temporarily stored; or The intermediary: (i) does not initiate the
transmission, (ii) does not select the receiver of the transmission, and
(iii) does not select or modify the information contained in the
transmission.
3. The provisions of sub-section (1)
shall not apply if, upon receiving actual knowledge of, or being
notified by the Central Government or its agency that any information,
data or link residing on a computer resource controlled by the
intermediary is being used to commit the unlawful act, the intermediary
fails expeditiously to remove or disable access to that material on that
resource.
As can be seen from the above, Cyber Cafes just like
other intermediaries have been given almost absolute immunity from all
liabilities. Unless Conspiracy or Abetment is proved, no action can be
taken on them. Their responsibility arises only when a notice that an
incriminating information residing inside the computer is being used for
an unlawful act.
Note the word "Any law in force" used in Section 79.
Since only Copyright Act and Patent Act have precedence over ITAA
(P)-2005, Cyber Cafes will enjoy immunity even for offences under IPC.
If this provision is read with the amended Section 69
which talks about the "Powers to order Monitoring or Interception" where
"Prevention of Cognizable Offences" have been deliberately ommitted, it is
clear that Cyber Cafes are being provided a special protective cover from
any interference from Police. Ostensibly this is to protect ISPs
from any action by Police. Judging by the luke warm response that ISPs
were providing for Cyber Crime investigations at present, they will now be
even emboldened to turn off the Police even for any routine criminal
investigations.
Perhaps the Cyber Crime Cells created by Police in
different cities will now be redundant and has to close down. While the
Society is concerned about raising Cyber Crimes, the Committee obsessed
with the sole objective of making the law to protect the privileged has
diluted the law and rendered the law enforcement totally redundant.
The brazenness with which the change of laws have been
attempted indicate a turf war between the Home Ministry (Lead by Mr
Shivaraj Patil, Congress) and the Ministry of Communication and
Information Technology (Lead by Mr Dayanidhi Maran, DMK) whether the
concerned ministers realize it or not.
From the point of view of the Liabilities therefore,
the ITAA has provided a great bonus to Cyber Cafes. Even the Cyber
Cafe owners had least expected this bonanza.
It is for intelligent observers to judge whether the
Committee has been so naive or if there is some thing which we cannot see
which the committee members could see. Afterall they are seeing things
from a different perspective.. to create a law for the privileged, by the
privileged and to protect the privileged.
Naavi
August 31, 2005
