c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6

Available online at www.sciencedirect.com

www.compseconline.com/publications/prodclaw.htm

Cyber pornography in India and its implication on cyber café

operators

Amita Verma
University Institute of Legal Studies, Panjab University, Chandigarh, India

abstract

Keywords: Cyber pornography plays an accessory role in negative social issues such as child abuse,
Cyber pornography violence against women, rape, inequality, relationship and family breakdown, youth crime,
Obscenity promiscuity and sexually transmitted diseases. Cyberspace and the pornographic matter
Liability of cyber café owner transmitted through it have created challenges for India’s antiquated laws. The lack of
jurisdictional boundaries and the sheer volume of traffic that the Internet can handle, as
well as the potential for anonymity have resulted in a complete lack of control over what
appears on the Web at the click of a mouse button. Before there was no liability of a cyber
café owner but with the introduction of the Information Technology Amendment Act, 2008,
the responsibilities of Cyber Café owners have only increased. This paper deals with the
Cyber pornography, its legal implications and the liability of cyber café owner under the
Information Technology Amendment Act, 2008.
ª 2012 A. Verma. Published by Elsevier Ltd. All rights reserved.

1. Introduction reputable cyber-cafe said he was surprised that his establish-

The terror mail threat received by the Sri Lankan Cricket team
before the Ahmedabad Test has once again brought focus on
Cyber Cafes. The mail was sent from a Cyber Café in Chattis-
garh and promptly the Police arrested the Cyber Café owner.
For the record, Police are happy that an arrest has been made
but it is unlikely to lead to the finding of the real culprit since
the Cyber Café may not be maintaining proper records.1
In another case, Police in Uttar Pradesh arrested more than
50 people, some of them naked. The Director-General of Police,
ordered the drive after complaints that students were watching
porn instead of attending classes. It follows a scandal over the
case of a Delhi schoolboy who allegedly filmed a sex act with
a girl on his cell phone. In Uttar Pradesh, a police crackdown
targeted a number of places that sold pornographic films and
videos. In Agra, the owners of two cyber-cafes were allegedly
providing sex cubicles for boys and girls for 60 rupees ($1.30) an
hour. Most of the cubicles did not even have computers -
instead police found used condoms. Police arrested 22 boys and
girls there, in various states of undress. The manager of one
ment was virtually deserted while the others were crowded
despite being almost twice as expensive. DGP also said some
cinema halls were caught illegally showing parts of films that
were cut by the censors. Allahabad District Police Chief said two
people had been arrested there for selling pornographic video
CDs. However, he denied media reports that police had received
a video CD, allegedly made by a boy, of a sex act with his girl-
friend which was then sold in markets for 250 rupees.
In a similar case, which has shocked India, a 17-year-old Delhi
schoolboy allegedly recorded a sex act with a girl, 16, on his mobile
phone. The clip was later sold on video CDs via auction site
Baazee.com, sparking the arrest of its manager for India, Avnish
Bajaj. A juvenile court granted the boy bail but ordered him not to
leave the country. Mr Bajaj was also bailed and told not to leave.
He was arrested under Information Technology Act 2000, which
prohibits the use of the Internet to distribute obscene or porno-
graphic material. Bazee.com has said the offending clip was
removed from the website as soon as the nature of its contents
became known. The alleged seller of the 2 min and 37 s clip, an
engineering student, has also been arrested.2 This is a typical

1
http://www.bloggernews.net/ visited on 25-10-10
2
http://www.desitwist.com/freedom-castle/blitz-indian-cyber-cafe-porn-232.html visited on 25-10-10
0267-3649/$ e see front matter ª 2012 A. Verma. Published by Elsevier Ltd. All rights reserved.
doi:10.1016/j.clsr.2011.11.003
70 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
scenario in respect of all crimes of this nature where a Cyber Café
is used for sending and receiving e-mails or using Internet for
viewing porn sites.
So, Cyber pornography has exploded onto the Internet,
creating an impact that was previously unimagined. Cyber
pornography is the dissemination of pornographic material
using the Internet as medium. This could be in the form of
pictures, text, audio, and more recently video and virtual
images. The profusion of pornography and sexually related
material, most of it non-educational in nature, on the Internet
seems contradictory to India’s stringent laws and more so,
orthodox social norms. Just about anyone from the age of two to
102 can view pornography online. Pornographic sites generally
have disclaimers that state: "This Web site is to be viewed only
by adults above the age of 18." There is however, nothing to
verify the age of the visitor.
Cyberspace and the pornographic matter transmitted
through it have created challenges for India’s antiquated laws.
The lack of jurisdictional boundaries and the sheer volume of
traffic that the Internet can handle, as well as the potential for
anonymity have resulted in a complete lack of control over
what appears on the Web at the click of a mouse button.
The use of new technology to commit traditional crimes is
not new phenomenon and all advancements in technology have
always provided wrongdoers new means for engaging in
unlawful conduct. Cyberspace is no different in this manner and
is simply a new medium through which traditional and new
forms of crimes can now be committed through the use of
inexpensive and widely available computer and telecommuni-
cations systems, and with unprecedented speed and on a far-
reaching scale. Nobody had anticipated that one-day develop-
ment of the Internet as a medium of communication and data
transfer could also become problematic for mankind in
a number of ways. At first instance the technology was used
primarily for military and educational purpose. The electronic
revolution has made pornography more accessible, bringing
decadent and hard-to-get images into the home.
The expansion of computer databases on the Internet has
provided the greatest access to date to sexually explicit images
accessed by both adults and children. Online pornography plays
an accessory role in negative social issues such as child abuse,
violence against women, rape, inequality, relationship and
family breakdown, youth crime, promiscuity and sexually
transmitted diseases. Child molesters are using the electronic
superhighway to look for victims. Pornography on the Internet is
available in different formats. These range from pictures and
short animated movies, to sound files and stories. Most of this
kind of pornographic content is available through World Wide
Web pages; but sometimes they are also distributed through an
older communication process, Usenet newsgroups. The
Internet also makes it possible to discuss sex, see live sex acts,
and arrange sexual activities3 from computer screens. The word
‘porne or porno’ means ‘prostitution’, which further implies
3 very well said that all obscene material is pornographic but
Section 2 of the Sexual Offences (Conspiracy and Incitement) Act,
1996, which makes it an offence to incite another person to commit
certain sexual acts against children abroad. The scope of incitement
for the purposes of section 2 extends to the use of Internet and any
incitement will be deemed to take place in the UK if the message is
received in the UK.
that the subject is not mutual love, or love at all, but domination
and violence against women. It ends with a root ‘graphos’,
which means ‘writing about’ or ‘description of’ which puts still
more distance between the subject and object. Thus it induces
a spontaneous deep desire for closeness with object and voyeur,
a dangerous situation rendering a person to become a covert,
passive and powerless observer of the pornographic activities
written or otherwise available in cyberspace. With the advent of
online pornography, however, there has been a boom in new
and younger pornography users. Chat rooms and instant/
private messages are two main tools pedophiles use to contact
children online. Pedophiles use the Internet for virtual valida-
tion of their activities within their circles of fellow pedophiles, so
they feel accepted and consider their sexual interest in children
normal.4 Pornography is violence against women, as a class,
who must live in fear because of the atmosphere of terror it
creates. Pornography has also evolved from ancient caves to
modern day fastest means i.e. Internet and has always kept pace
with the development in technology. There has never been any
stage of the progress where pornography has not been an inte-
gral part of human progress.
2. Pornography or obscenity-a debate
The literal meaning of pornography is ‘describing or exhib-
iting sexual acts in order to cause sexual excitement
through books, films, etc.’ This in itself cannot be termed as
crime and had this been the case, we should have banned
Kama sutra and removed Raaslila of Lord Krishna from the
course books altogether. But, if it is not so, then where is the
problem? In our view the problem is with obscenity and not
pornography. It is submitted that pornography in itself is
not bad until it becomes obscene and detrimental to
decency. When a medical student is taught the human
reproductive system, depiction of all the reproductive
organs and their functions in great detail is not indecent and
hence not obscene, but becomes obscene if used to cause
any sexual excitement.
The question now comes down to whether pornography
should be regulated and stopped altogether or whether the
focus should be on obscenity. Pornography in itself cannot
become a crime unless it amounts to obscenity. The word
‘obscenity’ has been defined as ‘offensively or grossly
indecent, lewd; law (of a publication) tending to deprave and
corrupt those who are likely to read, see, or hear the
contents’, which clearly shows that this act is likely to cause
criminal intent. Webster’s dictionary defines it as ‘desig-
nating or of books, films, etc. which when judged by
contemporary community standards, are found to appeal to
a prurient interest in sex, be patently offensive, and have no
serious artistic, scientific, or social value’. Further, the
Supreme Court has stated that obscene means ‘offensive to
modesty or decency, livid, filthy, repulsive’. Thus, it can be
vice versa is not true. It is not necessary that all that is
pornographic should fall in the category of obscenity. The
4
India’s Fight Against Online Pornography? at http://netsafety.
nic.in/Internet.html visited on 15-10-10
 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
whole gamut of the efforts would lie on understanding the
difference between obscenity and pornography and in
simple terms would mean the difference between what is
the limit of decency.
3. Liability under Indian legal system
The dying embers of the 20th century witnessed the emergence
of high tech media such as the Internet, which completely
metamorphosed the conception of Information Technology.
With the growth of IT, it was strongly felt by the world
community that it should introduce some legislation to regulate
information and communications technology. In India, the
constitutional protection available to citizens, in respect of their
speech and expression, is enshrined in Article 19(1)(a) of the
Constitution of India. 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 this legislation prescribes that ‘obscenity’
in certain circumstances constitutes an offence. The legislation
is (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) defines ‘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 of this kind
would likely be considered to be ‘obscene’. Section 2925 of the
IPC comprehensively sets out the circumstances in which
‘obscenity’ and/or any ‘obscene’ material is an offence. There-
fore, obscenity is an offence if it falls within any of the below
prescribed purposes.
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,6 the accused was caught
5
According to section 292, (i) whoever sells, lets to hire, distrib-
utes, 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.
6
1999 CR LJ 2562 (Raj)
71
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 to quash 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 one’s 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 also lie for mere possession of obscene material. 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
can be proved that the offence is a probable consequence of the
abetment. There are certain exceptions7 under Section 292 of
Indian Penal Code, which sets out the purposes under which
obscenity is not deemed to be an offence.
Section 67 deals with the penal offence of publishing of
information, which is obscene in the electronic form. Section
67 of the IT Act, 20008 is modelled on the basis of Section 292
IPC. The Information Technology (Amendment) Act 2008
made certain changes in Section 679 and introduced some
7
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.
8
Section 67 of the IT Act reads as follows: “Whosoever publishes
or transmits or causes to be published in the electronic form, any
material which is lascivious or appeals to be published in the elec-
tronic form, any material which is lascivious or appeals to the
prurient interest or it 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 an
imprisonment of either description 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 conviction with imprisonment
of either description for a term which may extend to ten years and
also with fine which may extend to two lakh rupees.”
9
Section 67 Punishment for publishing or transmitting obscene
material in electronic form (Amended vide ITAA 2008)
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 three years and with fine which may extend to five lakh
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 ten
lakh rupees.
72 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
new Sections in it.10 The Information Technology (Amend-
ment) Act 2008 made certain changes in Section 67 i.e the fine
10
Section 67 A Punishment for publishing or transmitting of
material containing sexually explicit act, etc. in electronic form
(Inserted vide ITAA 2008)
Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains
sexually explicit act or conduct shall be punished on first conviction
with imprisonment of either description for a term which may
extend to five years and with fine which may extend to ten lakh
rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to
seven years and also with fine which may extend to ten lakh rupees.
Exception: This section and section 67 does not extend to any
book, pamphlet, paper, writing, drawing, painting, representation
or figure in electronic form-
(i) the publication of which is proved to be justified as being
for the public good on the ground that such book,
pamphlet, paper, writing, drawing, painting, representa-
tion or figure is in the interest of science, literature, art, or
learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes.
Section 67 B Punishment for publishing or transmitting
of material depicting children in sexually explicit act, etc.
in electronic form.
Whoever,-
(a) publishes or transmits or causes to be published or trans-
mitted material in any electronic form which depicts chil-
dren engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes
material in any electronic form depicting children in
obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship
with one or more children for and on sexually explicit act or in
a manner that may offend a reasonable adult on the
computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others
pertaining to sexually explicit act with children, shall be
punished on first conviction with imprisonment of either
description for a term which may extend to five years and
with a fine which may extend to ten lakh rupees and in the
event of second or subsequent conviction with imprisonment
of either description for a term which may extend to seven
years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this
section does not extend to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form-
(i) The publication of which is proved to be justified as being
for the public good on the ground that such book,
pamphlet, paper writing, drawing, painting, representation
or figure is in the interest of science, literature, art or
learning or other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious
purposes
Explanation: For the purposes of this section, “children” means
a person who has not completed the age of 18 years.
Section 67 C Preservation and Retention of information by
intermediaries
(1) Intermediary shall preserve and retain such information as
may be specified for such duration and in such manner and
format as the Central Government may prescribe.
(2) Any intermediary who intentionally or knowingly contra-
venes the provisions of sub section (1) shall be punished
with an imprisonment for a term which may extend to
three years and shall also be liable to fine.
increased to Rs 5 lakhs for first instance conviction and Rs 10
lakhs for subsequent instances and imprisonment reduced to
three years for first instance and 5 years for subsequent
instance. A new Section 67A was introduced to cover material
containing a “Sexually Explicit Act” Increased imprisonment
and fine were introduced compared to Sec 67. This is a sub-set
of Section 67 and compared to the existing Section 67, it does
not represent any significant change.
The new Section 67B was introduced to cover Child
Pornography with stringent punishment which provides
imprisonment 5 & 7 years and fine Rs. 5 & 10 lakhs for first and
subsequent instances respectively. It also covers “grooming”
and self-abuse. A new Section 67C introduced a duty requiring
Intermediaries to preserve and retain certain records for
a stated period. This is an excellent provision. A period of
retention needs to be notified. The provisions of section 67 are
wide enough to cover all perpetrators of ‘Cyber-obscenity’, be
it the Internet Service Providers, web hosting entities, the
persons behind the actual web site or cyber café owner. The
possible criminal consequences that person will face who has
posted pornographic materials on the Internet will be the
Indian Penal Code. However, this does not refer to the term
pornography at all. As such, before examining Section 67 of
the IT Act, 2000, it would be prudent to examine briefly Section
292 IPC.
In India, the offence of obscenity is dealt with under the
Indian Penal Code. Section 292 IPC deals with the offence of
obscenity. Interestingly the Indian Penal Code, 1860 does not
define the word “obscene” or “porn”. Coming specifically to
the Information Technology Act, Section 67 of the IT Act
defines an offence substantially similar to Section 292 IPC, the
only material difference being that Section 67 of the IT Act has
made the offence of obscenity applicable to any material in
the electronic form and in the electronic world. Thus, each
and every, electronic information, whether it is obscene or not
uses the same tests for determining obscenity as are defined
under Section 292 IPC.
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 elec-
tronic 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 one’s 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.
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. Section 67 (which correspond to the
 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
provisions of section 292 of the IPC as stated above) under
the IT Act, deals with computer systems and networks, the
intangible medium of the Internet and electronic commu-
nication devices such as the cellular phone handsets -
a prosecution can be commenced independently or jointly
under both the Acts.
The concept of obscenity differs from country to country,
age to age, from region to region and even from person to
person, depending upon the particular social conditions and
there cannot be an immutable standard of moral values. It
may be pertinent to mention that the landmark judgment that
the Supreme Court delivered on Section 292 IPC, on which
Section 67 of the IT Act is based, was in the case entitled R.D.
Udeshi v. State of Maharashtra.11 In that judgment, the Supreme
Court held:
The word, as the dictionaries tell us, denotes the quality of being
obscene which means offensive to modesty or decency, lewd, fil-
thy and repulsive? Both, of course, offend against public decency
and morals but pornography is obscenity in a more aggravated
form.
Further, in the another case, C K Karodkar v. State of Maha-
rashtra,12 the Supreme Court held that the standards of
obscenity would differ from country to country depending on
the standards of morals of contemporary society:
What is considered as a piece of literature in France may be
obscene in England and what is considered in both countries as
not harmful to public order and morals may be obscene in our
country. It was further held that, what we have to see is whether
a class, and not an isolated case, into whose hands, the book,
article or story falls, suffer in their moral outlook or become
depraved by reading it or might have impure and lecherous
thoughts aroused in their minds. The charge of obscenity must,
therefore, be judged from this aspect.
It is the duty of the Court to consider the obscene matter
by taking an overall view of the entire work and to deter-
mine whether the obscene passages are so likely to deprave
and corrupt those whose minds are open to such influences
and in whose hands the book is likely to fall and in doing
so, one must not overlook the influence of the book on the
social morality of our contemporary society. Section 67 of
the Information Technology Act has created a bit of
confusion by merely copying the material phrases from
Section 292 IPC and by not taking into consideration the
changed standards of society and human behaviour in
modern India. The Hicklin test would still be applicable in
the context of the electronic form, though the judiciary
would now be required to suitably modify and adapt the
Hicklin test in the context of the online environment and
the Internet.
On a plain reading of section 67, it appears as if it seeks
to assume the role of a global supervisor and regulator. It
gives the impression that any person who puts up a sex
web site in a foreign land showing obscenity, would also be
11
AIR 1965 SC 881.
12
(1969) 2 SCC 687.
73
liable there under. However, this is not so and cyber porno
sites in foreign lands, merely publishing pornographic
material, would not be liable under section 67 because
section 75 provides that the IT Act shall apply to an offence
or contravention committed outside India by any person if
the act or conduct constituting the offence involves
a computer, computer system or computer network
located in India. Therefore, if an Indian surfer visits
a pornographic website based in a foreign land, the site
would not be liable under section 67 because it is the
visitor’s act which gives him access to the website whereas
the website itself does not commit any offence. However,
where a website, based in a foreign land, transmits
lascivious material to a person in India or if it advertises its
services on a computer network in India, it would be liable
under section 67 of the IT Act. The essence is that the act or
conduct constituting the offence must involve a computer,
computer system or computer network located in India.
Earlier, search engines would also not be liable under
section 67 because they neither publish nor transmit any
material, if taken due diligence. A search engine is a virtual
directory of thousands or millions of addresses arranged
subject wise or name wise, etc., which is used by net
surfers.
The only material difference that Section 67 makes to the
offence defined under Section 292 IPC is that it has extended
the same offence to the electronic format. Thus, a peculiar
situation is likely to emerge in the practical working and
implementation of the IT Act. For example, a person may
publish a pornographic book and he is liable to be punished
with imprisonment up to two years under Section 292 IPC. But
at the same time, if the same person publishes the porno-
graphic book in the electronic form, then he becomes entitled
to a much higher imprisonment of three years and fine up to
five lakh rupees on first conviction under Section 67, IT Act,
2000.
Though there are prohibitive and penal laws for
punishing cyber pornography, the real problem lies in
the implementation of these provisions by the law
enforcement agencies. Besides the dualism in India, there
are inherent difficulties in applying these laws honestly,
fairly and without any bias upon the medium of the
Internet.
4. Liability of cyber café owner under the
Information Technology Act, 2000
If you own a cyber café at which a client is accessing
Internet porn, you are responsible for transmitting and
broadcasting pornographic material on the Internet, and
could be punished under Section 67 of the Information
Technology Act.
With the introduction of the ITA 2008 (ITA 2000 amended
with effect from October 27, 2009), the responsibilities of
Cyber Café owners have increased. In the event they fail to
maintain a “Due Diligence” plan for the Cyber Café they run
the risk of being accused directly for such crimes as above or
for “Vicarious Liabilities” under different sections of ITA
74 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
2008 such as Section 67C. As per section 6913 of the amended
Act, the power is given to Central and State Government to
issue directions for interception or monitoring or decryption
of any information through any computer resource. Under
section 69 A14 it can issue directions for blocking for public
access of any information through any computer resource
13
Section 69 Powers to issue directions for interception or
monitoring or decryption of any information through any
computer resource (Substituted Vide ITAA 2008)
(1) Where the central Government or a State Government or any of
its officer specially authorized by the Central Government or the
State Government, as the case may be, in this behalf may, if is
satisfied that it is necessary or expedient to do in the interest of
the sovereignty or integrity of India, defense of India, security of
the State, friendly relations with foreign States or public order or
for preventing incitement to the commission of any cognizable
offence relating to above or for investigation of any offence, it
may, subject to the provisions of sub-section (2), for reasons to be
recorded in writing, by order, direct any agency of the appro-
priate Government to intercept, monitor or decrypt or cause to
be intercepted or monitored or decrypted any information
transmitted received or stored through any computer resource.
(2) The Procedure and safeguards subject to which such inter-
ception or monitoring or decryption may be carried out, shall
be such as may be prescribed
(3) The subscriber or intermediary or any person in charge of the
computer resource shall, when called upon by any agency
which has been directed under sub section (1), extend all
facilities and technical assistance to -
(a) provide access to or secure access to the computer
resource containing such information; generating, trans-
mitting, receiving or storing such information; or
(b) intercept or monitor or decrypt the information, as the
case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to
assist the agency referred to in sub-section (3) shall be pun-
ished with an imprisonment for a term which may extend to
seven years and shall also be liable to fine.
14
Section 69 A Power to issue directions for blocking for public
access of any information through any computer resource
(1) Where the Central Government or any of its officer specially
authorized by it in this behalf is satisfied that it is necessary or
expedient so to do in the interest of sovereignty and integrity
of India, defense of India, security of the State, friendly rela-
tions with foreign states or public order or for preventing
incitement to the commission of any cognizable offence
relating to above, it may subject to the provisions of sub-
sections (2) for reasons to be recorded in writing, by order
direct any agency of the Government or intermediary to block
access by the public or cause to be blocked for access by public
any information generated, transmitted, received, stored or
hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking
for access by the public may be carried out shall be such as
may be prescribed.
(3) The intermediary who fails to comply with the direction
issued under sub-section (1) shall be punished with an
imprisonment for a term which may extend to seven years
and also be liable to fine.
and under section 69B15 to authorize to monitor and collect
traffic data or information through any computer resource
for Cyber Security. This can take care of the blocking of
websites which may host pornographic content, which is an
offence under Sections 67, 67-A, 67-B and 67-C of the
amended Act.
In the context of cybercafé 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 Cyber Café it would constitute an offence
and the owner of the cybercafé would be liable under
section 292 of the IPC when 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 Cyber Café it
could be difficult for the prosecution to sustain its plea
under section 292 of the IPC and section 67 of the IT Act.
Nevertheless, the owner may not be completely exonerated
from liability as it is possible that he may be held respon-
sible 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 Cyber Café 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 prose-
cution the Cyber Café owners could perhaps make an
15
Section 69B Power to authorize to monitor and collect traffic
data or information through any computer resource for Cyber
Security
(1) The Central Government may, to enhance Cyber Security and
for identification, analysis and prevention of any intrusion or
spread of computer contaminant in the country, by notifica-
tion in the official Gazette, authorize any agency of the
Government to monitor and collect traffic data or information
generated, transmitted, received or stored in any computer
resource.
(2) The Intermediary or any person in-charge of the Computer
resource shall when called upon by the agency which has been
authorized under sub-section (1), provide technical assistance
and extend all facilities to such agency to enable online access
or to secure and provide online access to the computer
resource generating, transmitting, receiving or storing such
traffic data or information.
(3) The procedure and safeguards for monitoring and collecting
traffic data or information, shall be such as may be
prescribed.
(4) Any intermediary who intentionally or knowingly contra-
venes the provisions of sub-section (2) shall be punished with
an imprisonment for a term which may extend to three years
and shall also be liable to fine.
Explanation: For the purposes of this section,
(i) "Computer Contaminant" shall have the meaning assigned
to it in section 43
(ii) "traffic data" means any data identifying or purporting to
identify any person, computer system or computer
network or location to or from which the communication
is or may be transmitted and includes communications
origin, destination, route, time, date, size, duration or type
of underlying service or any other information.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
attempt to take protection under section 7916 of the IT Act,
which absolves ‘intermediaries’, who only provide access to
content but do not provide content itself. They could do so
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 mech-
anism (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 Cyber Café.
However, this argument (of drawing a parallel between
intermediaries and Cybercafé owners) has not been judi-
cially 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 impose
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 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.
16
Section 79 Exemption from liability of intermediary in certain
cases
(1) Notwithstanding anything contained in any other law for the
time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable for
any third party information, data, or communication link
made available by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing
access to a communication system over which informa-
tion made available by third parties is transmitted or
temporarily stored; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted in the
commission of the unlawful act
(b) upon receiving actual knowledge, or on being notified by
the appropriate Government or its agency that any infor-
mation, data or communication link residing in or con-
nected to a computer resource controlled by the
intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating
the evidence in any manner.
(4) Intermediary shall observe such other guidelines as the
Central Government may prescribe in this behalf
Explanation: - For the purpose of this section, the expression
“third party information" means any information dealt with
by an intermediary in his capacity as an intermediary.
75
If a customer who visits an Internet café downloads any
obscene material for personal viewing on the terminal that is
assigned to him and the café owner is aware of this, it is
a serious offence that the owner can be held liable for under
section 292 of the IPC, read with section 67 of the IT Act.17 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. The
punishment for an offence under section 67C of the IT Act is
directed at any intermediary who, intentionally or knowingly
contravenes the provisions of sub-section (1) of section 67C. If
convicted he shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to
fine.
Under the circumstances the law as it stands on obscenity,
with regard to the liability it imposes on the owners of
cybercafé, is certainly not free from doubt and casts an
onerous obligation on them to successfully defend a prosecu-
tion under the relevant provisions of the IPC and the IT Act.
However, if certain precautions are observed, such as estab-
lishing mechanisms which block such websites and promi-
nently displaying the disclaimers as suggested above, at least
this may help in providing a good defense.
5. Recommendations
There are certain recommendations for cyber café owners to
set up some effective hardware or software that prevents
customers from accessing or viewing any obscene websites.
Further, they should display clear disclaimers that inform
customers about this policy. Customers should be made
aware that obscenity is an offence which is taken seriously
and is punishable with imprisonment under Indian cyber
laws. If customers persist in viewing and downloading
obscene materials, despite adequate warning, they will be
personally responsible and the café owner will not be
considered liable.
Though ITA 2008 has been notified with effect from
October 27, 2009, the rules regarding Cyber Café regulations
have been notified separately in April 2011 in this regard.18
Prior to that Cyber Cafes had to follow “Due Diligence” in
a manner that was considered as “What a prudent man under
similar circumstances” would do. The government will now
17
http://www.lawisgreek.com/cyber-laws-publishing-obscene-
information-in-electronic-form/ visited on 15-10-10
18
http://www.mit.gov.in/sites/upload_files/dit/files/RNUS_
CyberLaw_15411.pdf
76 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 8 ( 2 0 1 2 ) 6 9 e7 6
have powers to collect “traffic data” and also seek online
access to information in the hands of an intermediary.
Under the amended Act, the Government can force cyber
cafés to follow safeguards specified and also demand online
access if required. There is an expectation that the Indian
Computer Emergency Team may itself be designated as an
agency of the Central Government with a national jurisdiction
and CERT-In, the present division of MCIT, mat itself be
stepping into the shoes of the Indian Computer Emergency
Team.
Cyber cafés must be now more vigilant than ever about
security breaches since the protection they could claim under
Section 79 has been largely made irrelevant since the “Due
Diligence” clause under section 79 (2) (c) casts a duty on the
cyber café With the security practices to be notified under
sections 69, 69-A and 69-B, the requirement of “Due Diligence”
would be satisfied if relevant security practices are main-
tained. It would, therefore, be necessary for cyber café to
undergo a Cyber Law Compliance Audit for fulfilling the
specific requirements under these sections.
Certain methods need now to be adopted. Liability of the
Internet Service Providers should be more precisely laid down.
They must introduce more advance filtering devices that can
filter the objectionable content. Cyber cafe owners will need to
buy a license to set up shop. They will be legally required to
install software filters to screen out pornography and
unsuitable content and they must insist upon potential
surfers filling out lengthy forms listing addresses, telephone
numbers and other details. All of these will legally have to be
made available to the police if required. Cyber cafe customers
would need to display photo identity cards. Only then can they
go online.
6. Conclusion
As regards cyber cafés, the 2008 amendments in the ITA are
thus a step in a positive direction, keeping in mind the earlier
and ongoing needs relating to information security, protec-
tion and prevention of crime while addressing issues of
national security and integrity. It also provides potent
authority to the owners of cyber cafés who can take recourse
to such legal provisions by imposing legal hindrances before
their customers, who earlier could use cyber cafés for any
illegal activity. This is necessary now for sustaining the
business of Cyber Cafes in India as the State can neither
prevent criminals from using the Cyber Café network nor
permit the Police to consistently blame Cyber Café proprie-
tors on grounds of negligence. The ITA 2008 makes a genuine
effort to provide immunity to the intermediaries but has
nevertheless failed to achieve its full objective due to loose
drafting of a few provisions. Indian Legislators need to
address these issues and provide essential immunity to
Internet Service Providers (ISPs) to enable them to operate in
India without fear and inhibition.
Dr. Amita Verma (amitaverma21@gmail.com) Assistant Professor,
University Institute of Legal Studies, Panjab University, Chandigarh