[Due to the extraordinary interest
generated by this issue, a more detailed discussion was found necessary. Hence a
series of articles are being presented links for which are given below as BB1,
BB2,BB3 etc....Naavi]
BB1:BB-2
: BB3:BB4:
BB 5:BB6:BB7:BB8:BB9:BB10
In our previous articles "Bloggers Beware...1"
and Bloggers beware 2, we had
discussed the impact of Section 67 on the Blog owner when "Information which is
Obscene in Electronic Form" gets displayed on the blog space and the
difference between a Forum and the Blog.
We shall now discuss some of the other Legal issues involved
in Blog management.
Issue (2): Is there a difference in "Creating an Object of
Information" and "Publishing the Object"?
In a recent incident in Chennai a blogger had reported that
he was in receipt of a video clipping through e-mail which consisted of a short
video clipping of a well known actress taking bath in a Hotel room apparently
filmed through a peep hole camera attached some where in the bath room.
The
report generated viewer interest some of whom pleaded for the hyper link for the
video, some offered to pay money for the clipping and some even offered to
exchange another video clipping (The Delhi Public School Mobile Clipping) if
some body was interested.
Though the blog owner refused to provide the hyper
link one of the visitors posted the hyper link which stayed on site for some
time before the blog owner removed the posting containing the hyper link.(
Shortly there after the entire blog entry with the comments were also removed by
the blog owner. For the time being let us accept that the film was "Obscene" in
content as per the definitions of Section 67 of ITA-2000 and proceed to discuss
the implications.)
This is a very interesting case to study the various issues
involved in such an incident.
This incident had many players and many actions such as .
1. Fixing a peephole camera in a Hotel Room and taking
obscene pictures during the private moments of an individual who also happens to
be a celebrity in her own right.
2. The film was processed digitally (saved in some specific
file format with or without editing) in a computer
3. The distributable version of the film was placed in a web
repository which is owned by somebody.
4. Different persons who were informed directly by the first
distributor, saw the clipping.
5. Some of the recipients started distributing hyper
links to the public.
6. Many Netizens saw the clipping online.
7. Some of the Netizens downloaded it to their computers
8. Some of the Netizens distributed the file through e-mail
to their friends
9. Some or all out of the original distributor, his
first circle friends and Netizens sold the clipping for a price in
the Meta Society.
10. Some Citizens bought the clipping from a market
place paying money and viewed them in their personal computers or shared
computers.
11. Some of the persons who bought the Clip in the Meta
Society or acquired through the Cyber Space, caused the clipping to be exhibited
to others through Cyber Cafes or private shows.
12. The information about the existence of the video, the
location where it was available, etc was made available to the public through
Blogs, websites and perhaps through News Reports in the physical world by
distributors, Journalists, Crime Analysts, Sociologists etc.
It would be necessary for us to consider the legal
implications of the incident and consequential action on each of these category
of persons.
These discussions would also be relevant in cases such as the
famous "Dr Prakash Case" in Chennai where the accused was alleged to have
photographed women under duress or otherwise in compromising positions and
published it through a website hosted abroad by his brother and friends. The
trial is still going on in Chennai Courts against Dr Prakash, while his brother
is still at large in a foreign country.
There are many more such incidents where
the Crime is a combination of Cyber Crime and a Non Cyber Crime and there will
be need to look at law for Cyber Crimes in conjunction with the law for other
crimes. In India the Cyber Crime Law is available in ITA-2000 effective from
October 17, 2000 and Non Cyber Crime related penal Laws are available mainly in Indian
Penal Code (IPC).
Let us restrict our
present discussion to the provisions of ITA-2000 and IPC. (Since some points have
already been discussed in the first article of this series, we shall now focus
only on what has not been discussed.)
The 12 activities listed above revolve around the
following.
a) Creation of the object which is the
subject of crime
b) Using the Object in a specific manner.
To start with, we can consider that the video film
might have been created by an individual to satisfy his own sensuous desires. In
such a case the film would have been seen only by him and not transmitted. (A
similar incident had been reported a few months back where a Hotel Owner had
fixed a web cam in the bath room attached to a swimming pool.)
In such case it is purely a crime of "Violation of Privacy"
of the woman. If it is a single incident, perhaps the cause of action lies only
with the victim and the remedy may vary according to the effect of the violation
on the victim. In case such filming has been resorted to as a matter of routine or
at least in more than once, then it may be construed as a "Crime against
Society" and criminal prosecution may be in order, under the assumption
that "They were meant to be used" for Sale or for harassment etc.
After the Video having been created, the manner in which it is
used defines other crimes associated with the incident.
For example,
if the copy of the film is shown to the lady
herself for the purpose of embarrassing her, perhaps section
509 of IPC may be invoked.
If it is used to cause harassment to the lady it
may come under Section
503 of IPC and
if it is used to extort money from her it may come
under section
383 of IPC.
In case the video film is exhibited in the form of a
cinematographic film, then the provisions of Cinematographic Film Act pertaining
to prohibition of display of a film without censor approval may become
applicable.
In case the video film is "Published" or "Distributed" or
"Caused to be Distributed" to persons who are likely to be adversely affected as
per Section 67 of the ITA-2000, then Section 67 of ITA-2000 becomes applicable.
When the film gets distributed, it also has the effect of
causing dis-reputation for the victim. This reduction in the value or esteem of
the person in the minds of the public itself may be an act of "Defamation". If the distribution was accompanied by
words or gestures of explanation then "Defamation" under Section 499 of IPC
would result without any doubt.
According to Section
499 of IPC,
Whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to defame that person
According to
Section 500,
Whoever defames another shall be
punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.
Additionally the person who is defamed may
claim damages by way of a Civil suit.
In case the original digital film has been
edited and modified (Such as in the case where pictures are morphed and
altered), it may constitute "Hacking" under Section 66 of ITA-2000.
According to
Section 292 of IPC
Whoever-
(a) sells, lets to hire, distributes, publicly
exhibits or in any manner puts into circulation, or for purposes of sale,
hire, distribution, public exhibition or circulation, makes, produces or has
in his possession any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene
object for any of the purposes aforesaid, or knowing or having reason to
believe that such object will be sold, let to hire, distributed or publicly
exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any
business in the course of which he knows or has reason to believe that any
such obscene objects are for any of the purposes aforesaid, made, produced,
purchased, kept, imported, exported, conveyed, publicly exhibited or in any
manner put into circulation, or
(d) advertises or makes known by any means
whatsoever that any person is engaged or is ready to engage in any act which
is an offence under this section, or that any such obscene object can be
procured from or through any person, or
(e) offers or attempts to do any act which is an
offence under this section,
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 two thousand 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 five thousand rupees.
In the list of 12 categories of people indicated earlier in
this article, different persons will come under different categories described
by the above section.
Lastly, According to Section
120 A of IPC
When two or more persons agree to do, or cause to be
done,-
(1) an illegal act, or
(2) an act which is not illegal
by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except
an agreement to commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
Explanation- It is immaterial
whether the illegal act is the ultimate object of such agreement, or is merely
incidental to that object.
According to this section, those who participate in the
creation of the film and in its distribution can be considered as "Conspiring"
towards the common illegal activity. Therefore one of the bloggers creating a
blog and another expanding on it, yet another posting a link, yet another
talking of where it is available etc.. may amount to a conspiracy under a deemed
agreement.
"Seeing the Video" is not defined as a Crime either under the
ITA-2000 or IPC. However, Being in possession of a "Copy for Sale" could
be an offence under Section 292 of IPC.
Thus, law recognizes different punishments for "Creation of
the Video" and " Using of the Video" in different manners. "Publishing" is
one such act.
The different crimes of creation and publication can be done by
different people for gain or otherwise.
Thus the surreptitious photographer may be liable for the
Violation of Privacy, while the Blogger and the Link Provider may be liable for
publication and Others asking for the link and offering payment may be liable
under IPC...and so on.
Naavi
December 8,2004
..Will Be Continued in Bloggers Beware..4
Related Articles:
Scandal in school shakes up Delhi..Telegraph
First Conviction Under Sec 67 of ITA-2000
Defamation on Internet-Ivan Hoffman
Defamation-IVan Hoffman
What is Defamation?..libelxpress
