labels: e-business, infotech, writers & columnists, ebay india
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Probir Roy
24 December 2004

Well intentioned cyber laws are only as good as their subsequent intrepretation and implementation.

The noise and colour of an Indian shaadi (wedding) brass band, more or less, describes the events of the last few days. That the law is an ass, in the case of, a 100 per cent Indian subsidiary of eBay - the world's largest online marketplace - 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… the largest dotcom deal after the sale of IndiaWorld (Sify) to Satyam at the height of the internet boom No doubt an isolated case of an Indian dotcom success in today's post internet bubble world, but much needed success nonetheless. So what are the issues which have bought a fairly open and shut case to such prominence?

First, as everyone knows, an auction or marketplace site is much like a mandi, bazaar, stock exchange or flea market except that it has no physical boundaries. It 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. It was not the 'objectionable' "DPS (Delhi Public School) clip" that was found on the site, contrary to what is reported in most media, but just an innocuous text description of the item.

Second, 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, unlike the local kirana wallah (grocery shop-owner) neither 'owns', 'creates' or 'publishes' the product nor is necessarily aware of what passes through their site since there are literally millions of transactions taking place at any point of time. If one types the keyword "DPS Dhamaka" on the world's most famous search engine - Google, the results throw up links to sites actually containing the infamous clip! Baazee or Google, Inc as 'intermediaries' are in no practical position to pre-emptively control what is available on their sites nor act as moral gatekeepers. In short they have limited responsibility.

Avnish BajajThird, 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 (viz. objectionable material, pornography, weapons, drugs, etc,) 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.

Situations which could fall under a similar dilemma in the real world are where a newspaper editor or publisher cannot be quite held directly responsible, under existing legal jurisprudence, if their classified section carries fairly 'explicit' ads of massage parlours or escort and dating services.

Similarly in the digital or electronic world, if subscribers send objectionable text, voice or multimedia material over the net, mobile phone, telephone lines, Wifi- or Bluetooth-enabled devices then can the local telephone company, internet service provider or spectrum licensees be held directly responsible?

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 (unless or otherwise clearly proven that the site or "intermediary" knew about it or did not exercise all due diligence to prevent the "offence").

Fourthly, in its currently strict interpretation of section 67 of the IT Act (electronic transmission and / or publication), 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 IIT, Delhi where the images were found stored, stand implicated.

Had baazee failed to pull out the objectionable material, the police would have been perfectly right to enforce the law. Clearly, from all accounts baazee took of 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 'watchdog' feature.

Recently in the UK a member of the Queen's Household was dismissed from service for listing the Queens X'mas Gift to him - a $10 X'mas Pudding cake - up for auction on eBay! Needless to say, there was no question of anyone being hauled up from the site, let alone arrested. So what is the reason for the rather over-the-top reaction by all concerned here?

There has been a sudden spate of raids all over the country on cyber cafés, seizing of mobile phones, random checking of SMS / MMS of students, emails of actresses, etc, ever since. Unfortunately since the IT Act of 2000 has been passed there has been no sensational case which has come up and therefore, by all counts, this is a test case since there are only a few in the enforcement and legal fields who are familiar with the nature of the internet and modern communications technology and cyber laws which govern them.

It is obvious that however well intentioned the law, it is in the interpretation that there is going to be a veritable free-for-all till wiser counsel prevails!

Finally, the internet services "intermediary" community, as small as it is here, is largely underrepresented and fragmented with little or no spokes-person, 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 protégé, alas, is one which has been orphaned at birth. The little representation caters to motley interest groups and their limited charters and agendas. It is time for someone to step up to the plate.

also see : Indian IT's moment of truth

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