Under ITA-2000, Section 67 dealt with the offence
relating to "Publishing and Distribution" of information which is obscene
in Electronic form. There have been many cases which have been filed
by Police under this clause both on individuals as well as Cyber Cafes.
There has been a case which had been filed against rediff.com and
indiatimes.com also in the past which were perhaps aborted midway. The
Bazee.com case which became the raison d'etre for the amendment exercise
saw a case being filed and arrests being made of both the person who sold
the obscene video clip and the CEO in charge of the e-auction place.
A conviction took place in Chennai under this section where the accused
was awarded imprisonment of 2 years under this section.
The revision of the section has now been suggested to
correct the past mistakes. Additionally the section 72 which earlier was
restricted to "Breach of Privacy" by mainly the Certifying Authorities is
sought to be expanded to cover the case of the Bazee type.
...Naavi
The present section 67 of ITA-2000 states as under
67. Publishing of information which is obscene in electronic
form
Whoever publishes or transmits or causes to be published in the electronic
form, any material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which may
extend to five years and with fine which may extend to one lakh
rupees and in the event of a second or subsequent conviction with
imprisonment of either description for a term which may extend to ten
years and also with fine which may extend to two lakh rupees
While the section could be invoked for "publishing",
"Transmitting" and "Causing to be published", the term of imprisonment was
5 years for the first time offence and 10 years for subsequent time.
The definition of "Obscenity" was left for interpretation as per the facts
of the case based on the effect to "deprave and corrupt persons who are
likely to see.."
The proposed section is reproduced below.
New 67. Publishing in electronic form
of information which is obscene
(1)
Save as provided in this Act under Section 79 which exempts intermediaries
from liability in certain cases, whoever publishes or transmits or causes
to be published in the electronic form, any material which is lascivious
or appeals to the prurient interest or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in
it, shall be punished on first conviction with imprisonment of either
description for a term which may extend to two years and with fine which may extend to five
lakh rupees and in the event of a second or subsequent conviction with
imprisonment of either description for a term which may extend to
five years and also with fine which may extend to ten lakh rupees.
(2)
Whoever intentionally and knowingly publishes or transmits through
electronic form any material which relates to child pornography, shall be
punished with imprisonment for a term not less than three years and with a
fine which may extend to ten lakh rupees and in the event of a second or
subsequent conviction with imprisonment of either description for a term
which may extend to seven years and also with fine which may extend to ten lakh rupees.
Explanation: - For the purposes of this section
“child pornography” means material that features a child engaged in
sexually explicit conduct.
Exception – This sub-section (1) does not extent
to –
(a) any book, pamphlet, paper, writing, drawing,
painting, representation or figure in electronic form
(i) the publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper, writing,
drawing, painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern, or
(ii) which is kept or used bon fide for religious purposes;
The first point to be noted here is that the section is
not applicable to "Intermediaries as defined in Section 79". This includes
Cyber Cafes. Hence Section 67 will no longer be applicable to Cyber Cafes
barring the exception mentioned in Section 79 (Proposed) namely
"conspiracy", "abetment" and "Prior knowledge".
The description of the obscenity remains the same but
the period of imprisonment comes down from 5 years to 2 years for first
instance and from 10 years to 5 years for subsequent instance.
However the sub clause (2) introduces the new offence
of "Child Pornography" where the imprisonment could be 3 years fro the
first instance and 7 years for the subsequent instance and the fine could
be Rs 10 lakhs. The term "Child" however is not defined though the term
"Child Pornography" is defined as "material that features a child engaged
in sexually explicit conduct.". If the Bazee.com MMS participants are
treated as "Children", this may mean that the IIT Student who was involved
in the case may be given 3 year sentence and 10 lakh fine while Bazee.com
would not be responsible.
The net impact of the changes made to Section 67 is to
give immunity to "Intermediaries" which incidentally is a relief to Cyber
Cafes. The reduction of the term of imprisonment could mean that the
offence may not be considered cognizable even under CrPc. The increase in
fine amount is of marginal importance though it is relevant in the context
of "Power of the Controller and Adjudicator to Compound Offences"
[The amendments made to Section 72 in
defining what is "Privacy" has some relation to the term "Obscenity" in
electronic form and we shall therefore take a look at this section
simultaneously. We shall discuss this in a subsequent article.]
[Will continue]
Naavi
September 1, 2005
