[Politech] CEO of Indian Ebay affiliate Bazee.com arrested, out on bail [fs]

From: Declan McCullagh (declan@private)
Date: Wed Dec 22 2004 - 20:52:46 PST


He's now out on bail:
http://www.forbes.com/work/2004/12/21/1221autofacescan01.html



-------- Original Message --------
Subject: CEO of indian amazon.com affiliate baazee.com arrested
Date: Fri, 17 Dec 2004 22:15:25 +0530 (IST)
From: Suresh Ramasubramanian <suresh@private>
To: declan@private
CC: dave@private

baazee.com, india's largest online marketplace site, was recently acquired
by ebay in a multi million dollar deal.

A couple of weeks back, two high school students (a retired army officer's
daughter and a rich jeweler's son), both from an elite New Delhi school
had sex.  The boy taped it on a mobile phone camera, and then forwarded it
around to his buddies.  This video clip started getting forwarded around
extensively on MMS / email, and soon found its way into porn CD stores.

So, somebody puts a CD of this video clip up for sale on baazee.com.  The
guy's arrested for doing this .. but the police then arrest Baazee's CEO
as well.

http://in.rediff.com/news/2004/dec/17bazee.htm

Lewd MMS row: Bazee CEO arrested

December 17, 2004 19:12 IST

Delhi Police on Friday arrested CEO of on-line auction site Bazee.com
Avnish Bajaj in connection with the circulation of the lewd multi-media
messaging service clip depicting two students of Delhi Public School in a
sexual act.

Bajaj was arrested by the Economic Offences Wing of the Delhi Police,
Deputy Commissioner of Police Prabhakar said.

The MMS had allegedly been put on the website of Bazee.com for sale.

-----------

Funny, as the Indian IT act of 2000, which covers "cybercrime", does have
a safe harbor section -

Direct quote from the IT act of 2000 -

> 79. Network service providers not to be liable in certain cases.
>
> For the removal of doubts, it is hereby declared that 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;








-------- Original Message --------
Subject: baazee.com arrest - a lawyer's opinion
Date: Fri, 17 Dec 2004 22:38:36 +0530
From: Suresh Ramasubramanian <suresh@private>
Organization: Who? Me?
To: declan@private

Badri Natarajan is a clued lawyer, and he's been on the internet for
several years now (he's a friend of Udhay Shankar's if that rings a bell)

This is his analysis of the situation, posted on india-gii .. dissecting a
prominent Indian lawyer's reported claim in an interview that baazee.com is
guilty because "ignorance of the law is no excuse".

Points out the safe harbor provisions in the Indian IT act and explains
some more things as well ..

There's another, similar case brewing in India as well. A bollywood film
star Kareena Kapoor allegedly got caught passionately kissing her boyfriend
in a restaurant.  Someone took a video of this with - what else - a phone
camera - and sent it to a tabloid and various TV channels, which of course
gave the clip top billing.  She's talking of suing the newspaper (Mid Day,
a bombay afternoon daily) and the channels for several million rupees.

	srs

----- Forwarded message from Badri Natarajan <asimov@private> -----

From: Badri Natarajan <asimov@private>
Date: Fri, 17 Dec 2004 22:24:05 +0530
To: india-gii@private
Subject: Re: [india-gii] MMS saga has unexpected consequences

 >Prasenjeet Dutta wrote:
 >>Baazee is guilty:
 >>
 >>>The baazee.com officials are pleading not guilty, saying they were
 >>>unaware of the VCD's contents. But Duggal says: "Law is not
 >>>bothered about your awareness. You are not supposed to list
 >>>anything on the Web site without knowing about its content.
 >
 >This is wrong - not to mention ungrammatical

Thank you Suresh - I was just going to post some of this stuff, but
you beat me to it.

To add something more:

That statement attributed to Duggal is so blatantly misconceived,
that I tend to think the reporter misquoted him, or perhaps he was
talking about the seller on Baazee.com, not Baazee itself.

There's no doubt that the seller (the IIT student) is guilty under
S.292 of the Indian Penal Code (assuming the video clip is found
obscene, which it probably will be). I don't think he's guilty under
S.67 of the IT Act - that's a very narrowly drawn section which
prohibits "publishing or transmitting" (if I remember correctly)
obscene information, but offering a VCD for sale doesn't fit under
that definition. On the other hand, the kid who made the video clip
originally, (against whom an arrest warrant has been issued) is
probably guilty under both sections, although there are some
difficulties with prosecuting minors.

But it is utterly ridiculous to suggest Baazee is guilty under any of
these sections, especially for the reasons given above. Duggal's
(supposed) comment basically says that Baazee is guilty because
ignorance of the law is no excuse. This is true, but that principle
of law has *no application* here.

Baazee can't say "We didn't know the law so we aren't guilty" - but
that's NOT what they are claiming. They are saying they didn't know
about *the VCD's contents*, which is ignorance of FACTS, not
ignorance of LAW. Not having notice of the VCD's contents is a clear
defence under general legal principles, as well as under S.79 of the
IT Act which Suresh has quoted. Besides, Baazee removed the listing
as soon as they learned of it, which looks very good of them - it is
also one of the requirements of S.79 of the IT Act  - you have to
take action after being given notice of the existence of a possible
problem..



 >
 >Direct quote from the IT act of 2000 -
 >
 >>79. Network service providers not to be liable in certain cases.

Yes, I have a feeling this section is finally going to be tested in
court. We were just discussing this on Cyberlaw-India a couple of
days ago. My reading of the section suggests that Baazee is not
liable (I'm not sure if Baazee will fall under the definition of
network service provider, but it probably will).

But the section - and the Indian law on vicarious liability of
ISPs/website hosts, etc - has never been tested in court before and
its application is unclear. (Except for the Asian School of Cyberlaws
case Suresh mentioned, and it is very unclear what that case actually
said) The time is ripe for a detailed judgment by a High Court or
Supreme Court on these issues. Maybe it will happen with this case..

Badri
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----- End forwarded message -----

-- 
Suresh Ramasubramanian | suresh@private | gpg EDEDEFB9
email sturmbahnfuehrer | lower middle class unix sysadmin

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