THE THREATS OF OBSCENITY AND PORNOGRAPHY

BY

PRAVEEN DALAL*

 The aim of this article is to clarify the mist, uncertainty and legal risks surrounding the functioning of web-site owners and network service providers. It seems the legal position in this regard is not clear, as the cyber law in India is in its infancy stage and very few professionals are available to solve the problem. The vulnerable segment of web-site owners and service providers has not taken the ramifications of the Information Technology Act, 2000 with all its seriousness.  They have not deemed it necessary to make their dealings in cyberspace as  “cyber law compliant”. This apathy on their part may put them into trouble, as ignorance of law is no excuse.

 I. Introduction

             The world has witnessed a sea change and today the dealings of big corporations are not confined to traditional methods of business. They have stated to utilise information technology for an efficient, profitable and convenient business administration. But every coin has two sides and similar is the case of use of information technology. The information technology is a double edge sword, which is benign and deleterious at the same time. This process becomes more complicated, cumbersome and harsh when it is supplemented by an indifferent attitude towards law dealing with cyberspace. It must be noted that ignorance of law cannot be pleaded as a ground for proving innocence, but a careful, timely and dedicated effort can save all the troubles and harassment. Thus, it becomes very important to dedicatedly, judiciously, and religiously follow the requirements of “Techno legal solutions”, which are very important for a successful and trouble free business administration. This requires availing of services of those technical and legal experts who have a sound and holistic knowledge of the field. Since the matter involves great “public interest”, I consider it appropriate to briefly make aware these vulnerable segments of the rights and liabilities, which they have to take care of while doing business in cyberspace[1].

 II. The risk factors

             The following provisions of the Information Technology Act, 2000 may bring criminal consequences[2] for the vulnerable segments:

 (1) Section 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. 

 (2) Section 79: Network Service Providers not to be liable in certain cases   

No person providing any service as a Network Service Provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

 Explanation.  - For the purposes of this section -

 (a) "Network Service Provider" means an intermediary;

(b) "Third Party Information" means any information dealt with by a network service provider in his capacity as an intermediary. 

(3) Section 85: Offences by Companies.   

(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a Company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

 Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. 

 (2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

 Explanation-

For the purposes of this section

(i) "Company" means any Body Corporate and includes a Firm or other Association of individuals; and

(ii) "Director", in relation to a firm, means a partner in the firm.

These provisions are self-explanatory and need not be discussed in detail. At this point of time it is more important to examine the rights and liabilities of the companies[3].

 III. Rights and liabilities of the companies

 The Explanation to section 85 provides that the expression “company” means any Body Corporate and includes a Firm or other Association of individuals. A careful perusal of the definition would reveal that not only companies registered under the Companies Act, 1956 are covered but even firms and associations of persons is included within the definition of companies. Thus, these people/entities are equally vulnerable to the criminal sanctions of the Information Technology Act, 2000. This mandates a “precautionary strategy” rather than fighting in the Court of law and ultimately proving the innocence. It must be noted that even if the innocence is proved ultimately, the harassment cannot be undone. To prevent such harassment, it is better to take precautionary and techno-legal safeguards.

 (A) Rights of the company

             If a company is observing the mandates of the law, not only in its letter but also in its spirit, then it has certain rights, which are available to it under the Constitution of India and under various statutes, including the Information Technology Act, 2000. Though, a company cannot claim the status of “Citizen[4]”, it is entitled to various rights which are equally available to all “persons[5]” under the Constitution of India.  In Bennet Coleman Co v U.O.I[6] the Supreme Court held that the fundamental Rights of the shareholders as citizens are not lost when they associate to form a company. When their Fundamental Rights as shareholders are impaired by the State action, their rights as shareholders are protected. The reason is that the shareholder’s rights are equally and necessarily affected if the rights of the company are affected. The natural corollary of the above decisions is that the company acquires a standing by adding a shareholder with itself in an action. Besides certain Fundamental Rights, which are available to all “Persons”, including a corporate entity, a company also enjoys the protection of various Constitutional Rights as provided under the Constitution. For instance, a company has a Constitutional Right to hold and enjoy its property. Article 300-A of the Constitution confers a right on all persons to hold and enjoy their properties. Thus a company cannot be deprived of its property save by authority of law. Any violation of this right of the company can be challenged in a court of law.

In Bhavnagar University v Palitana Sugar Mills Pvt Ltd[7] the Supreme Court held that an owner of a property, subject to reasonable restrictions, which may be imposed by the Legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode or manner laid down under the statute would not be presumed.  Similarly, Article 301 of the constitution confers on a company a right to have a free trade, commerce and intercourse throughout the territory of India. This right, however, is subject to the provisions of Articles 302 to 305 of the Constitution. Thus so long a company is carrying on its business in accordance with the law, its business activities cannot be interfered with. A company incorporated under the Companies Act, 1956 also enjoys certain privileges under other statutes, which a partnership firm, an association of persons or a registered society does not possess. These privileges flow form the “distinct entity status” of a company, which other associations lack.

 (2) Liabilities of the company

 A company enjoying various rights is also subjected to certain liabilities and obligations under the Companies Act and other statutes. The information Technology Act, 2000 is one such statute, which is providing for stringent penal consequences if the provisions of the same are not complied with. As mentioned earlier, an ISP[8] shall be liable if he has played a role in either “committing” the act of posting the pornographic and obscene material or “omitting” in the removal of the same as soon as possible, after the matter came to his knowledge. However, a network service provider will not be liable if he proves that the offence or contravention was committed without his knowledge or he had exercised all due diligence to prevent such commission[9]. Thus, the mandates of “constructive knowledge” and “due diligence” require the web site owner and an ISP to take immediate action by removing the offensive material from the source, as soon as he/it becomes aware of the same. If he/it fails to do so, he/it can be booked under the provisions of IPC and ITA.  In fact, websites promoting hate, contempt, slander or defamation of others, promoting gambling, promoting racism, violence and terrorism, pornography and violent sex can reasonably be blocked since all such websites cannot claim the Fundamental Right of free speech and expression. The blocking of such website may be equated to “balanced flow of information” and not censorship[10]. The business of running and maintaining a web site or server has its own legal challenges, which may have serious penal ramifications. Thus, web site owners and ISP should be well versed with the consequences of posting offensive material on their sites/servers. The definition of “intermediary” u/s 2(1) (w) makes any person who receives, stores or transmit a message or provide any service with respect to that message liable for punishment if the same is obscene or/and pornographic in nature[11]. They must be very cautious while dealing with materials containing obscene and pornographic contents; otherwise they may find themselves in the clutches of law.

 IV. Conclusion 

            The provisions of the Information Technology Act, 2000 must be properly appreciated before dealing in e-commerce and e-governance. The precautionary measures are, however, the best solution and the “management planning” of the companies must essentially include a cyber compliant strategy. The laws cannot be formulated in terms of business convenience and norms; instead the businesses must adjust themselves as per the requirements of the law. It is not the law but the indifference towards the law, which is the real cause for the miseries. Thus, in the larger interest of the companies, they are required to shift their attention towards cyber laws as well, unless they wish to prove their innocence in the court of law.