Saturday, 19 September 2015

Whether manager can be held guilty for eBay ads? Liability of intermediaries in case of online sale

Supreme Court on Friday decided to examine protection to web intermediaries which are open to public for posting items for online sale. 

The issue came up for adjudication before a bench of Justices Dipak Mishra and P C Pant when one Sharat Babu Digumarti moved a petition challenging framing of charge against him by a Delhi court under Section 292 of Indian Penal Code just because he was a senior manager of eBay site in 2004 when a sexually explicit MMS clip was uploaded by a registered user, Ravi Raj, for sale. 

The registered user uploaded the MMS clip of a schoolgirl allegedly filmed by her boyfriend on eBay around 8 am on November 27, 2004 priced at Rs 128 per clip of which eBay was to get Rs 3 per download. Before the clip was taken off from the site, there were eight transactions with buyers from different parts of the country. The site had even disbursed money to the registered user as payment from buyers. 

The police registered a case on December 9, 2004. Police filed a charge-sheet against Ravi Raj, Avinash Bajaj and Digumarti in February 2006 under Sections 292 and 294 of Indian Penal Code (indecent portrayal of women) and Section 67 of IT Act (punishment for transmitting obscene material in electronic form). The SC quashed the criminal case against Bajaj in April 2012. 

Digumarti was similarly discharged from the sections under which Bajaj was earlier charged. However, the charge under Section 292 still remained against him. The Delhi High Court refused to quash the charge saying he could have stopped the clip being uploaded but did not do so promptly. 

Appearing for him, senior advocates A M Singhvi and Siddharth Luthra told the bench that the HC fell in error as in 2004, there was no government-prescribed rules or standards for intermediaries to take down objectionable material from their sites within a specific time period. The Information Technology (Intermediaries Guidelines) Rules were notified by the government in 2011. 

They said the trial court erred by framing the charge to accuse Digumarti of possessing the alleged obscene video clip even though it was independently uploaded by the registered user over whom the site had no control. 

The bench of Justices Mishra and Pant sought response from the Delhi government and sought assistance from attorney general Mukul Rohatgi on the ground that "it requires interpretation of Section 79 of the Information Technology Act, 2000, read in juxtaposition of Section 292 of Indian Penal Code". It scheduled further hearing on the case for October 6. 
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