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