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police recently arrested managers of the website www.indiatimes.com,
belonging to the Times of India group, for abetting pornography. Their
website contained a hyperlink to another website, www.indian-models.com,
hosted abroad, which contained pictures of nude women. The police proceeded
with the arrest even though www.indiatimes.com
protested that it did not control www.indian-models.com, and promptly
removed the hyperlink. However, it is likely that the judiciary will acquit
them since courts in several countries have ruled that webmasters or
Internet Service Providers (ISPs) cannot be punished for pornographic or
other offensive content that they do not themselves host.
dominant view among the judiciary in Europe and North America a couple of
years ago was that ISPs were akin to publishers and broadcasters and
therefore responsible for content, even if provided by a third party.
However, the majority view nowadays is that ISPs are more like telephone
networks who cannot be held liable for the conversations of their
1997, German prosecutors indicted Compuserve Deutschland because its
customers downloaded child pornography from websites in USA. Compuserve
argued that it had installed software filters to block subscribers from
accessing such websites, but these had been bypassed. Even so, a Munich
court convicted its chief executive, Felix Somm. However, in 1999 a Bavarian
court overturned that verdict. Noting that Somm had tried to block access to
paedophile websites, later giving up because the blockade proved
unmanageable technically, the higher court said Somm could not be held
responsible. Germany’s parliament also passed a new law which protected
ISPs from liability for content which merely traveled over their networks.
1997 the Helsinki Court of Appeals overruled a lower Finnish court which had
ordered anonymizer and remailer
services to turn their subscriber postings over to the police for tracking
suspected child pornography.
fortnight, a French court in Nanterre declined to order an ISP, Multimania
France, to shut down a neo-Nazi website uploaded by one of its customers.
The judge ruled that even though racist material was prohibited on French
radio and television, an ISP could not be held liable for material uploaded
by its subscribers.
Clauses 66 and 78 of India’s
Information Technology Act, just passed by both houses of parliament, would
make it clear that the webmasters of www.indiatimes.com cannot be held liable.
Clause 66 states:
of information which is obscene in electronic form
Whoever publishes or transmits or causes to be published in the electronic
form, any material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which may
extend to two years and with fine which may extend to twenty-five thousand
rupees and in the event of a second or subsequent conviction with
imprisonment of either description for a term which may extend to five years
and also with fine which may extend to fifty thousand rupees.
a hyperlink to another website cannot be construed as publishing the
latter’s content; it is akin to a bibliographic footnote citing the source
78 implies that an Indian ISP cannot be held liable if its subscribers
access a pornographic website which it did not host.
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.
the purposes of this section,—
"network service provider" means an intermediary;
"third party information" means any information dealt with by a
network service provider in his capacity as an intermediary.
66 does not make it an offence to access or receive pornography, but only to
publish or transmit it. This is as it should be. Most Indian internet users
have been spammed with unsolicited emails with innocent sounding subject
lines which turn out to offer pornography. Merely opening these messages
will cause the pornographic content to be accessed.
is also easy to inadvertently stumble across pornographic websites since
many of their domain names are either innocent sounding or similar to
legitimate ones. Typing www.whitehouse.com instead of www.whitehouse.gov will take you to a porn
site instead of the US President’s website, and mistyping www.yahhoo.com will not take you to the
premier portal Yahoo but to a hardcore site. Many pornographers divert
traffic from legitimate sites to themselves by manipulating meta tags in
moral police should realize that Indians will access pornographic websites
in spite of all barriers and it will be technically difficult for our
vigilante organizations to prevent them. The US consultancy firm Media
Metrix estimates that India’s 300,000 internet users visit two million
hardcore and six million softcore sites per month, accounting for 11 % of
India’s internet traffic. Approximately 1500 pornographic websites
featuring Indian women are presently hosted on US servers due to the large
bandwidths required for videos and images, although they were created in
India. Clause 66 of the Information Technology Act will drive providers of
even mild erotica to servers in USA, leading to foreign exchange outflow
from India, as happened recently in Australia. It had passed a law
forbidding Australian ISPs from hosting pornography after January 2000. Tony
Hill, executive director of the Internet Society of Australia, stated that 30,000 Australian
businesses would be forced to shift their online divisions to USA,
with corresponding loss of high-tech employment and flight of revenues.
is the major driver of innovation in new communications technologies.
Pornographers were the first to realize the potential of the printing press
in the fifteenth century, photography in the nineteenth, cinema in the early
twentieth century, the VCR in the 1970s, and direct-to-home broadcasting and
the internet in the 1990s.
providing a large price-insensitive market, pornographers supplied the
initial cash-flow that was ploughed back into technology refinement and
market expansion. Due to economies of scale, costs of fledgling
communications technologies decreased greatly in a few years until the mass
market could afford them. The American space program invented the VCR in the
mid-1950s. It was only after pornographers produced home movies for VCR
formats in the mid-1970s that costs came down to the level that households
could afford them.
by the need to make the price of a monthly subscription lower than that of
renting a videotape, pornographers have lowered the costs of the World Wide
Web until it can be afforded by mass consumers. Since they required
customers to pay by credit card, pornographers spurred the development of
secure electronic commerce systems, and encryption and authentication
technologies. They have lowered transaction and delivery costs to the point
where flowers and chocolates can be ordered and books and music sold online.
by the requirement to minimize file sizes for quick downloading and
transmission, pornographers spurred innovation in digital compression, image
recognition and pattern recognition technologies. These have proved to be a
boon in medical diagnosis, satellite remote sensing, natural resource
prospecting, and intelligence gathering.
of trying to prevent Indians from accessing pornography, the government
should harness its spin-off benefits, especially to our software and
Published in The Telegraph, Calcutta, India, on Monday, 19 June 2000 on the Edit Page
http://www.telegraphindia.com, Click on Archives, Go to Issue of Monday, 19 June 2000, Click on Editorial, Click on “The Frontiers of Smut”
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