[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 " we had discussed some of the
legal issues regarding Blogging. Let us visit a few more here.
Issue (3) Is the Blog owner responsible for a hyper link posted
by a visitor?
There are two points to be considered here.
First is whether the "Comments" posted by the visitors is
part of the "Original Posting" or is a "Continuation of the Original Posting".
Second is whether a "Hyperlink" either in the main posting or
in a comment is a continuation there of.
Technically speaking, " Hyper Link" is a software command
that initiates a http request for a designated file. When a user "Clicks" on the
hyper link, he initiates the software process leading to reaching out to the
designated file. The link itself is provided by the web page designer who is the
"Programmer" at the instruction of the web page owner "Who causes the link to be
made available".
If therefore a person clicks on a hyper link, the
consequences of such action has to be borne by both the person clicking the
hyperlink as well as the person who made the link available.
In case the person who created the link mislead the
person clicking by creating a fraudulent or misrepresenting hyper text, then the
user would not be responsible for the consequence. For example if the linked
hyper text says "Here is a Picture of Tirumala Temple" and then links it to an
obscene photograph, the person who is clicking the hyperlink would be absolved
of the adverse consequences.
But if the link provider says that the linked file contains
some explicit material and the user is visiting the link at his risk and
responsibility, then the responsibility for the consequences is squarely on the
visitor. I may recall here that the website tamilsex.com involved in Dr
Prakash's case did have such a disclaimer on the home page which stated to the
effect " ..Please do not visit the site if it is illegal in your country to
visit such adult material ".
By the same logic if the link provider says "It is
exciting,..must see.." etc then he is actually urging the visitor and canvassing
him to visit.
There is also another way of looking at "hyper linked
Documents". For example, just as a document may contain references to
"Annexures" which may actually be separate documents and in which case the
document along with the annexures is considered as a single document, an
electronic document with a hyper linked document can be considered as one single
document. As far as the hosting responsibility is concerned therefore, the web
page owner who provides a link is actually intending that the linked document is
to be considered as a part of the content of the web page itself, though, for
logical clarity it is presented as an "linked annexure".
In case the linked document is stored in the hosting space
owned by the web page owner, then the association of the linked document and the
main page is even more explicit.
Unlike a physical world scenario where a person may give a
direction "Please go to Burma bazaar..Shop number ...... You will get this
material", in a hyper linked environment, the web page owner is not only giving
direction to where the offensive material is available but is also initiating
the delivery process automatically because the link may automatically initiates
the file download process. So the link provider is both canvassing and
delivering the material himself (may be free of cost). If we apply Section 292
IPC norms to such an activity, then there are multiple offences committed by a
blog which hosts information about an offensive material and also provides a
hyper link.
We have already discussed in the earlier article that the
"blog" by definition is meant to consolidate content from a group of people the
blog owner is only the in hyper link posted by the visitor.
It is however granted that a link may get posted without the
approval of the blog owner. In such a case it is important for the Blog owner to
act within a reasonable time to remove the offensive material. If such action is
taken then we can say that the consequences of the link having been posted by a
visitor can be avoided.
Naavi
December 9,2004
..Will Be Continued in Bloggers Beware..5
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
