NEW DELHI - What started off as an ordinary
little scandal about youngsters and pornography has
exploded in India's face, with the world's top auction
website screaming blue murder as its India manager sits
behind bars, questions being raised in parliament, and
even US Secretary of State-designate Condoleezza Rice
getting involved.
But perhaps the real can of
worms is the implication for Indian e-commerce in
general, after a magistrate ruled that ink on paper was
required, not the mere clicking of an "I agree to the
terms of service" button.
Indian police are now
conducting a massive hunt for porn in cyberspace, and
its perpetrators. Into the dragnet have fallen the
schoolboy who lit the fuse of outrage when he secretly
filmed an oral sex act with his girlfriend (When sex gets out of the
cupboard, Dec 9), and a former student of
the prestigious Indian Institute of Technology (IIT)
who, to help pay for his education, peddled the sex clip
on Baazee.com, the Indian arm of eBay. They are both in
jail, along with Avnish Bajaj, Baazee.com's manager and
chief executive officer.
The fact that the offending blue movie was
filmed with a camera-phone is apparently all-important: the
saga has become known as the "MMS case" because of the technology used.
Adding fuel to that particular fire - the misuse of
technology and invasion of privacy - was the secret
filming (using camera phones, what else) of top
Bollywood actors Kareena Kapoor and Shahid Kapur getting
passionate - French-kissing, no less - at a nightclub this month.
<snip>
But why is Condoleezza Rice involved? She is
taking a personal interest in the welfare of
Baazee.com's Bajaj, and has contacted David Mulford, the
US ambassador in India, and asked him to impress upon
the government to ensure Bajaj's safety. Bajaj, an IIT
and Harvard graduate, is a US citizen and, if convicted,
faces a prison term of several years. "The US Embassy is
following this case very closely and there is high-level
interest in Washington regarding it. Consistent with
normal US consular practices, the [court] hearing was
attended by a US consular official," said a
spokesperson.
India-born Bajaj was arrested under
Section 67 of the Information Technology Act (transmission
of obscene material through electronic media),
which can carry a jail term of up to five years. He
was expected to have a bail hearing on Tuesday:
meanwhile, the high-flyer was lodged in India's most
infamous prison, Jail No 3 of Delhi's Tihar Prisons,
sleeping on the floor in a room along with 70 other
prisoners awaiting trial on charges ranging from
pick-pocketing to rape and murder.
Bajaj's arrest came about courtesy of Ravi Raj, another
IITian (they are the country's brand ambassadors as far as
IT goes). Ravi, a final-year student of IIT, was the
first person to be arrested in the case, as he was
selling clips of the said sexual act - procured from a local
area network as it rested on the desktops of many other
students - on Baazee.com. Raj is a regular seller on
the site to pay for his tuition and other expenses as he
belongs to a poor family.
<snip>
Indeed, one of the biggest loopholes in
the Indian laws against cyber-crime was the fact that no
action could be taken against websites selling or
promoting prurient matter as the servers could be
located at any international location. However, over the
past year Internet business models are stabilizing
worldwide, with two Indian dotcoms - Baazee.com and
Jobsahead.com - being bought by eBay.com and Monster.com
respectively. Other major portals such as Yahoo.com and
MSN.com too have their India operations well under
way. By making Baazee.com accountable for material
on its website, whatever may be the merits of arresting
Bajaj, the Indian authorities have sent a powerful
message that local laws and sentiments have to be
abided.
The question is, what are the
implications of the laws for Indian e-commerce in
general? According to an online
petition addressed to Prime Minister Manmohan
Singh, authored by venture capitalist Mahesh Murthy and
calling for the quick release of Bajaj, Raj allegedly
put the film clip up for sale on Baazee.com after
reading and agreeing to the website's terms of service,
which expressly forbid trade in any pornographic items.
He advertised the item as a "video of Delhi girls having
fun" and said he would email it to anybody who sent him
Rs125 (about US$3). In the next two days, eight people
sent in their money and Raj allegedly emailed them the
clip. None of this exchange happened on Baazee.com, and
at no time was any pornographic material of any sort
hosted on Baazee.com.
"When eBay India/Baazee's
lawyers applied for bail [for Bajaj] on Saturday,
December 18, by quoting, among other things the Terms of
Service of Baazee that the merchant had to agree to
before signing up, the magistrate apparently rejected
the documentation by saying that there was no
ink-on-paper signature on the agreement and hence she
would not accept it as evidence."
And then
comes the crux of the issue: "By rejecting the
admissibility of the paper version of Terms of Service, and
insisting on an ink-on-paper signature for legal status,
the entire legality of the e-commerce business in India
is called to question. This is ironic, for the
largest e-commerce operation in not just India, but South
Asia, is the Indian Railways online ticket-selling business
- a government-owned and -run operation - which
does business worth Rs18 crores [$4 million] a month. This
magistrate's decision seems to imply a lack of legal
standing for all ticket sales online by the railways. It
also calls to question all other e-commerce sales in
India ... "
EBay
has predictably reacted angrily to the arrest,
calling it "completely unwarranted". Acknowledging that the listing of
the smut clip was against Baazee.com's policies
and user agreement, it said in a statement that the video
clip itself could not be played on the website and
the illegal item was deleted from the site once it
came to notice. Moreover, Bajaj had on his own flown down to
New Delhi to assist the police, which helped to locate
and arrest Raj. "It is unfortunate that local law
enforcement has chosen to misdirect its energies towards
Mr Bajaj. Baazee.com today is a part of eBay Inc, the
world's online marketplace, which has a presence in 32
markets around the world. Never before has such an
action been taken against the company. This position
advocated by the police is shocking especially as Bajaj
has been working closely with and fully cooperating with
the Delhi police since they contacted us on December 9,"
the firm said in a statement.
<snip>
To conclude, while it does
seem that the treatment meted out to Bajaj is harsh,
it is apparent that the action against Raj and the
schoolboy, who cannot be named under Indian juvenile laws, will surely
be a deterrent to such future occurrences. Think about
the girl for a moment - it is only her face that is
visible in the clip and all she did was engage in an
intimate act with her boyfriend, not the rest of the
world.
