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 ___________________________ india-gii mailing list: https://ssl.cpsr.org/mailman/listinfo/india-gii india-gii archives: https://ssl.cpsr.org/pipermail/india-gii/ Computer Professionals for Social Responsibility: http://www.cpsr.org/ ----- End forwarded message ----- -- Suresh Ramasubramanian | suresh@private | gpg EDEDEFB9 email sturmbahnfuehrer | lower middle class unix sysadmin _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2.1.3 : Wed Dec 22 2004 - 22:21:10 PST