ApiAp - Legal

Can’t let states spoil the surf, feels Nasscom

web-admin — Sat, 30 Sep 2006 00:00:00 -0700

The Economic Times, TIMES NEWS NETWORK

K YATISH RAJAWAT AND RITWIK DONDE

MUMBAI: The Mumbai police’s decision to regulate internet cafes as public amusement places through a gazette notification has boiled over into a national issue. Nasscom, along with other national bodies, is trying to get the IT Act amended to regulate the cafes. The objective is to prevent state government and state police from coming up with their own norms to regulate the cafes.

The move to put in place a centralised legislation gained momentum after ET first reported (in issue dated September 22, ’06) the Mumbai Police’s initiative to regulate the cyber cafes in the city.

Sunil Mehta from Nasscom told ET, “There has to be a national debate on the issue of policing the cyber cafes and other access points for the World Wide Web.” There is definitely a need to have a central law to monitor cyber cafes in the country instead of the piecemeal regulation that exists in the different states presently, he said. It is very important to realise that the internet has become a vital issue for national security.

The Indian IT Act is modelled on the EU legislation on e-commerce. IT Act section 79 has been revised to bring-out explicitly the extent of liability of intermediaries like ISPs and internet cafes in certain cases. The IT Act provides the power to make rules for “intermediary” including “cyber cafes” under section 87. Though, no specific rules have been framed. The lack of any legislation has given the state government the freedom to pursue their own rules.

“Currently, the state governments are not mature enough to frame IT laws and also there is no deliberation with the players in the business before framing such laws,” says Ashish Saboo, president, Association of Public ICT Tools Access Provider. Cyber cafe regulations in Bangalore and Chennai propose maintaining internet caches and cookies for a year. The UP government is even proposing a ban on online chatting in cyber cafes. All these legislations are clearly an evidence that there needs to be consistency in framing the laws.

Says Subho Roy, president, Internet and Mobile Association of India, “There is a lot of ambiguity in the laws governing cyber cafes at the moment. Different states have varied rules on cyber cafes, thus the need to have a central legislation.” The laws should also be simple and same for all the players in the business, otherwise small local players would be forced to wind up their business , he added.

Industry watchers also say that over-rigorous implementation and variance in laws among states would lead to the small internet cafe owners being forced to sell their business to bigger players like Reliance WebWorld, Sify iWay and others.
According to a recent gazette notification, the Mumbai police wanted to license all internet cafes in the city, classifying them under the public amusement category. Each internet cafe owner will have to shell out a licensing fee of Rs 500 per computer for registration.

The state government had published a notification to seek public feedback on the proposed rules, which give the police the discretion to reject a licence. After the ET report on the issue and a deluge of feedback to the state police department, the police decided to reduce the fees per computer to Rs 75.

According to the draft rules, a no objection submission from the landlord/society where the cyber cafes conduct their business, along with NOCs from the civic body’s health and other departments, will also be needed. The rules do not, however, cover STD/ISD booths which also have computing terminals for VOIP calls and email communications.

The rules seek to identify internet cafes on the basis of whether online gaming is being carried out there. The city police has wanted to regulate internet cafes for the past three years but the urgency appears to have increased after the investigations in the 7/11 blasts.

Highlights Higher licence fees would mean small players selling off to corporate players like Reliance WebWorld and Sify iWay, say industry watchers.

Cyber cafe regulations in Bangalore and Chennai propose for maintaining internet caches and cookies for a year
The Uttar Pradesh state government is even proposing a ban on online chatting in cyber cafes .Mumbai Police wants each internet cafe owner will have to shell out a licensing fee of Rs 500 per computer for registration.Rules do not cover STD/ISD booths which also have computing terminals for VOIP calls

Mumbai cops to invade cyberspace

web-admin — Fri, 22 Sep 2006 07:16:46 -0700

K YATISH RAJAWAT AND RITWIK DONDE in Ecomomic Times report

TIMES NEWS NETWORK[ FRIDAY, SEPTEMBER 22, 2006 03:24:28 AM]

MUMBAI: This time round, they don’t want to be left limping in the chase. The 7/11 blasts have spooked the Mumbai police into tightening the noose around cyber crime. With terrorists using internet-based communication to manage their sleeper cells and plan operations, the Mumbai police wants to monitor the city’s cyber cafes.

The police wants to licence all internet cafes in the city, classifying them under the public amusement category. Each internet cafe owner will have to shell out a licensing fee of Rs 500 per computer for registration.

The state government has published a notification to seek public feedback on the proposed rules, which give the police the discretion to reject a licence. According to the draft rules, a “no objection submission” from the landlord/society where the cyber cafes conduct their business, along with NOCs from the civic body’s health and other departments, will also be needed.

The rules do not, however, cover STD/ISD booths which also have computing terminals for VOIP calls and email communications. The rules seek to identify internet cafes on the basis of whether online gaming is being carried out there.

The city police has wanted to regulate internet cafés for the past three years but the urgency appears to have increased after the investigations in the 7/11 blasts. A top Mumbai police official told ET that anti-nationals are increasingly becoming tech-savvy and hence, the need to police such places. The police had also planned to impose a 11 pm deadline on cyber cafes, he added.

“The move is to get these commercial outlets to be more responsible... The gazette has sought public opinion and if people feel there is a need to address certain points, they’re welcome,” he said.

Intelligence agencies in the US and the UK track Internet Protocol (IP)-based communications like emails and VOIP calls using technology tools. Unlike voice calls which can be tapped easily, IP communication is difficult to tap as the end-user device changes. Users can communicate from different computers, change email IDs, or communicate even through postings on blogs or websites.

Cyber cafes, though, are just one access point for terrorists. GPRS-enabled mobile phones, and access to the net through other personal computing devices are equally common.

Cyber cafe owners, on their part, feel the fees are too high, and bad for business.

On whether cyber cafes are often portrayed as “shady joints”, Ashish Saboo, president, Association of Public ICT Tools Access Providers, which has internet cafe owners as members says, “We are service providers and shouldn’t be penalised for users’ actions. Cyber cafes are not public entertainment places.” This fee would mean that half of the monthly earnings of an internet cafe owner would go towards acquiring the licence, and will effectively render small and medium-sized internet cafes unviable, he adds.

Earlier, the cyber crime cell of the Mumbai police had initiated a move under Section 144 of the Criminal Procedure Code, which made cyber cafe users show documents such as college or school IDs or driving licences as proof of identity and had the cyber cafes maintain a log book for users.

The Tamil Nadu police has also insisted on registration of all internet cafes in Chennai. This was done in an attempt to monitor Tamil militants using these cafes for communication. The registration fee, though, is Rs 75 per terminal.

Suggested Public notice for cyber cafe visitors

web-admin — Thu, 15 Jun 2006 00:00:00 -0700

Based on feedbacks form various groups we have made a guidlines for visiotrs accessing the Cyber Cafe.

Cyber Cafe operators are requested to display notice prominently in the cafe.

Download the pdf document

Public Notice for cyber cafe visitors.pdf ( ver 2.03 )

Attachment	Size
Public Notice for cyber cafe visitors.pdf	36.48 KB

Opinion The Law on pornography in India & implication on Cyber cafe operators

web-admin — Mon, 26 Dec 2005 00:00:00 -0800

Cyber Cafe operators have many time been implicated for the acts of their customers.

Legal expert Mr Lekhesh Dholakia has on IAMAI's request released a paper describing the The Law on Pornography in India & its implication on Cyber Cafe operators

THE LAW ON PORNOGRAPHY IN INDIA

Pornography and Obscenity

The term ‘pornography’ when used in relation to an offence is not defined in any statutes in India but the term ‘obscenity’ has been effectively explained in two statutes in India, and these legislations prescribe that ‘obscenity’ in certain circumstances constitutes an offence. These legislations are (i) The Indian Penal Code, 1860 (‘IPC’) and (ii) The Information Technology Act, 2000 (‘IT Act’).

Although neither the IPC nor the IT Act defines what ‘obscenity’ is, section 292 of the IPC and section 67 of the IT Act, (which corresponds to section 292 of the IPC) explain ‘obscenity’ to mean anything which is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons. Therefore according to the law in India, anything that is lascivious or appeals to the prurient interest or if its effect is to deprave and corrupt persons would be considered to be ‘obscene’.

Obscenity as an offence under the Indian Penal Code.

Section 292 of the IPC comprehensively sets out the circumstances in which ‘obscenity’ and / or any ‘obscene’ material is an offence.

According to section 292, (i) whoever 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 (ii) imports, exports or conveys any obscene object for any of the purposes mentioned in (i) above, or knowing or having reason to believe that such obscene object will be sole, let to hire, distributed or publicly exhibited or in any manner out into circulation, or (iii) 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 mentioned in (i) above, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (iv) 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 section 292 or that any such obscene object can be procured from or through any person or (v) offers or attempts to do any act which is an offence under section 292, is punishable with imprisonment and fine. Therefore, obscenity is an offence if it falls within any of the above prescribed purposes.

Obscenity – personal viewing – Is it an offence

From a plain reading of Section 292 of the IPC it appears that if a person is in mere possession of the obscene material for his personal use without any intention to perform any of the purposes specified in section 292 (as stated above) it may not be an offence under section 292. In the case of Jagdish Chavla and others v/s the State of Rajasthan, 1999 CR LJ 2562 (Raj), the accused was caught viewing an obscene film on the television with the help of a VCR which along with the cassette was seized and a case under section 292 of the IPC was registered. The accused filed a petition in the High Court for quashing of the proceedings and it was held that simply being in possession of a blue film could not make a person guilty under section 292 unless it was further proved that the purpose of keeping the same was selling or letting it on hire. Therefore without proving the purpose of keeping the same no offence mentioned in section 292 was made out and the proceedings were quashed. The law therefore excludes from liability (under section 292) the mere possession of obscene material for ones own personal use without any intention to perform any of the purposes specified in section 292.

However, it would be prudent to be aware that a prosecution may lie for mere possession of obscene material also. It could be argued that a person, even though he is in mere possession of the obscene material which may be for his own personal use, actually aids and abets the publication, sale, hire, distribution etc of the obscene material, which is an offence under section 292. And under section 111 of the IPC, the abettor is held to be equally guilty of the offence which he has abetted provided it is proved that the offence is a probable consequence of the abetment.

Exceptions under the Indian Penal Code

Section 292 also sets out the purposes under which obscenity is not deemed to be an offence and these are when any such material is used (i) justifiably for the public good for e.g. interest of science, literature, art or learning or other purposes of general concern (ii) for bona-fide religious purposes and (iii) in any ancient monument within the meaning of the Ancient Monuments and Archeological Sites and Remains Act, 1958 or in any temple, or on any car used for the conveyance of idols.

Obscenity under the Information Technology Act

Section 67 of the IT Act lays down the law that obscenity is an offence when it is published or transmitted or caused to be published in any electronic form. The expressions, ‘publishing’ or ‘transmission’ have not been specifically defined under the IT Act, but in Taxmann’s commentary under the IT Act, ‘publishing means making information available to people’. The commentary also states that ‘transmission’ and not mere possession, of obscene information is an offence. Transmission may be addressed to an intended recipient for his personal use. But that is not relevant. The act of ‘transmission’ is sufficient to constitute an offence under section 67 of the IT Act. Therefore if any obscene material is published or transmitted in any electronic form it is an offence under section 67 of the IT Act. The provisions of section 67 of the IT Act are therefore similar to section 292 of the IPC where mere possession of the obscene material for ones own personal use may not be construed as on offence, however, it would be advisable to be cognizant of the fact that the prosecution can take a plea of abetment in a case of mere possession.

Although section 292 of the IPC principally deals with obscene material capable of expression in the physical medium such as books, pamphlets, papers, writings, drawings, paintings, representations, and the provisions of section 67 (which correspond to the provisions of section 292 of the IPC as stated above) under the IT Act, deal with computer systems and networks, intangible medium of the internet and electronic communication devices such as the cellular phone handsets, a prosecution can be commenced independently or jointly under both the Acts.

Applicability of the Acts to cybercafé owners

In the context of cybercafés in particular, if a customer downloads any obscene material for his personal viewing on the terminal assigned to him and this fact is known to the owner of the cybercafé it would constitute an offence and the owner of the cybercafé would be liable under section 292 of the IPC read with Section 67 of the IT Act. Provided however, if it is established that this act was without the knowledge of the owner of the cybercafé it could be difficult for the prosecution to sustain its plea under section 292 of the IPC and section 67 of the IT Act. However the owner may not be completely exonerated from liability and it is possible that he may be held responsible for abetting the offence (if not for its commission) in terms of facilitating the circulation and distribution of the obscene material.

The law relating to the liability of cybercafé owners under these provisions of the IPC and the IT Act is not very well settled and therefore open to subjective interpretation. To mitigate liability and to avoid possible criminal prosecution the cybercafé owners could perhaps make an attempt to take protection under section 79 of the IT Act, which absolves ‘intermediaries’, who only provide access to content but do not provide content itself, by extending the argument of intermediaries to cybercafés (although not tested in courts in India). The grounds of defense could be also made stronger by setting up a mechanism (hardware or software) whereby the customers are prevented from accessing any obscene websites and disclaimers are displayed prominently informing customers that obscenity is an offence which is punishable with imprisonment and that despite the warning, if customers still view such websites, they will be personally responsible and not the owner of the cybercafé.

However, this argument (of drawing a parallel between intermediaries and cybercafé owners) has not been judicially tested so far and from a plain reading of section 79 of the IT Act, the intermediaries are restricted to mean only ‘network service providers’ such as Videsh Sanchar Nigam Limited, Mahanagar Telephone Nigam Limited etc. Even in such cases, the provisions of section 79 of the IT Act imposes an obligation on intermediaries that they would be able to take the benefit of this section only if it is shown that the offence was committed without their knowledge or that they had exercised all due diligence to prevent its commission. What exactly is this due diligence is unfortunately not defined or explained in the IT Act so it is completely open for the prosecution to define its own level of due diligence.

Under the circumstances, the law as it stands on obscenity with regard to the liability it imposes on the owners of cybercafés is certainly not free from doubt and casts an onerous obligation on them to successfully defend a prosecution under the relevant provisions of the IPC and the IT Act. However, if certain precautions are observed such as establishing mechanisms which block such websites and displaying the disclaimers as suggested above, prominently, at least may help in providing a good defense.

Punishments prescribed under the Acts for obscenity

The punishment for an offence under section 292 of the IPC is on first conviction with imprisonment (simple or rigorous) 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 convictions, with imprisonment (simple or rigorous) for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

The punishment for an offence under section 67 of the IT Act is on first conviction with imprisonment (simple or rigorous) 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 convictions, with imprisonment (simple or rigorous) for a term which may extend to ten years, and also with fine which may extend to two lakh rupees.

Prepared by
Lekhesh Dholakia
Lekhs Legal
3rd December, 2005