Anti-porn cyber laws in India set to change

BANGALORE, INDIA: Anti Porn Cyber Laws in India were first passed in 2000 through Section 67 of the Information Technology Act 2000 (ITA 2000). Now the ITA 2000 amendment bill 2006 has been introduced in the Parliament on December 15th.

The recent Press Release from PIB states that “the Government is proposing further amendments in IT Act, 2000 that provides punishment for publishing or transmitting in electronic form any material which contains sexually explicit act or conduct”.

In order to ensure that the public are not mislead it is necessary for us to remember that what the Government is proposing (Subject to last minute changes) is to split the current Section 67 of ITA 2000.

The first part of the new Section 67 would be a reproduction of the current provision with the imprisonment term reduced from five years to two years and enhancing the fine amount from Rs 1 lakh to Rs 5 lakh. For the second and subsequent commission, the imprisonment is reduced from the present ten years to five years while the fine is increased from Rs 2 lakh to RS 10 lakh.

The second part, Section 67A is defining a new offence applicable to publishing or transmitting an electronic material which contains “sexually explicit act or conduct” for which the punishment would be five years of imprisonment and Rs 5 lakh for the first time and 7 years imprisonment and Rs 10 lakh fine for subsequent offence.

This would be applicable only for pictures and videos, which show a “sexually explicit” act, and text or voice e-mail may remain outside the provisions of this new section 67A. The punishment in terms of imprisonment under Sec 67 A is equal to or less than what was provided under the erstwhile Section 67.

Additionally, the offence would now be considered not cognizable (no arrest without court warrant) and would become compoundable (jail sentence can be traded off with a fine).

Further Section 79 is being amended so that Intermediaries would not be liable for the publication unless they are found to have “conspired and abetted in the act”. Their liability comes only when they fail to act after being notified.

In view of the combined effect of the modifications to Section 67, 79 and the compounding provisions, the amendments are considered to weaken the law from the existing levels.

For example, the conviction which occurred in Chennai in November 2004 under this section was for a text message posted in Yahoo group. This offence would now be “Non Cognizable” and covered under the two-year imprisonment possibility instead of five years.

The owners of Savithabhabhi.com may try to defend themselves that they are not “conspiring” or “abetting” in any crime since they are only owners of a domain name or business and not for the content. It is not possible to “notify” them since their identities are not known.

The reason why the Government is trying to set up the public to receive the Bill positively with a motivated, false press release is not known. Can we expect more surprises?

Until we receive the copy of the draft in public domain it is difficult to say. But the strategy would be to rush through the Bill before the public or the media can alert the MPs so that the Bill becomes a law as presented even if it is a dilution of the current law.