Computer Crime Research Center


Let's get our IT Act together

Date: December 28, 2004
Source: ZDNet India
By: Probir Roy, New Delhi

The noise and colour of a brassband at an Indian wedding more or less describes the events of the last few days. There is a common saying that the law is an ass. And in the case of, a 100% Indian subsidiary of eBay - world's largest online marketplace, it is in some danger of being proven so. Except in this case the law is fairly robust; it is its interpretation and style of enforcement that is asinine!

Baazee was in the news recently on account of a rather profitable valuation and subsequent acquisition by eBay making its shareholders both happy and rich! Reportedly at $50 million for a subscriber base of just about 1 million registered users! No doubt an isolated case of an Indian dotcom success in today's post internet bubble world. So what are the issues which have bought a fairly open and shut case to such prominence.

Firstly, an auction or marketplace site is much like a mandi, bazaar, stock exchange or flea market except that it has no physical boundaries, is virtual and almost anybody in the world with an email id and internet access can participate by just registering and listing the product description of what they want to sell - not the product per se! So in this case the infamous clip was not to be found on the site, contrary to what is reported in most media, just an innocuous text description of the item.

Secondly, trading sites are fairly self-regulating. While anyone can register and transact, all buyers and sellers rate each other based on feedback on the reliability and trustworthiness of their transaction experience. The site, neither 'owns', 'creates' or 'publishes' the product nor is necessarily aware of what passes through the site since there are literally millions of transactions taking place at any point of time. Baazee as an 'intermediary' is in no practical position to control what is available on its site nor act as a moral gatekeeper. In short it has limited responsibility.

Thirdly, a detailed mandatory user agreement between the user and the site further protects the service provider and defines what is not allowed to be listed and what indeed constitutes breach of this agreement and penalty for being in breach. This includes barring a subscriber from access and even being brought to the notice of the cyber crime division of the local law enforcement agency. If one keys in the keyword with the name of the public school on the world's most famous search engine - Google, then the results listing throws up links to sites actually containing the clip! In such cases the spirit and principle of Section 79 of the IT Act ought to kick in and restrict the direct liability of the service provider.

Fourthly, in its current strict interpretation of Section 67 of the IT Act, the Municipal Corporation of Delhi (MCD), under the jurisdiction of which is the Palika Bazaar, the telecom company on whose network these MMS's were sent, and the director of the IIT, where the images were found stored, stand implicated. Had Baazee failed to pull out the objectionable material the police would have been perfectly in its rights to enforce the law. Clearly, from all accounts Baazee took off the offending listing within 48 hours of its listings and much before the law even got to know about it! Mainly on being alerted by its online self-policing community 'watchdog' feature.

Unfortunately since the IT Act was passed there has been no sensational case and therefore by all counts this is a test case for all concerned. Finally, the internet services "intermediary" community, as small as it is here, is largely underrepresented and fragmented with little or no statesperson, body or special interest group to promote and protect its cause!. To that extent the Internet business in India though admittedly regarded, as a child prodigy, alas is one who has been orphaned at birth! The little representation caters to motley of interest groups and their limited charters and agendas. It is time for someone to step up to the plate.
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