[LINK] Liability of Publisher v. ISP/Space-Lessor
Roger.Clarke at xamax.com.au
Wed Dec 22 12:26:00 EST 2004
Indian schoolboy's phone sex prank reverberates around the world
The Sydney Morning Herald
Date: December 22 2004
To the Indian schoolboy, it must have seemed like an ingenious if
indelicate use of new technology. But when the 17-year-old used his
mobile phone camera to record his girlfriend giving him oral sex he
could have had little idea of the far-reaching global consequences.
By this week his ungentlemanly act had provoked a scandal that was
dominating every Indian newspaper, the chief executive of a large
company had been jailed, and a diplomatic row was brewing between
India and the US, with Condoleezza Rice to the fore.
The boy himself has been tracked down by police, faced court on
Monday and has been expelled from his school.
The trouble started a few days after the teenager made the recording,
when someone tried to sell a video clip of him and his 16-year-old
girlfriend on the Indian online auction site Baazee.com. The firm is
a subsidiary of the US auction giant eBay.
Indian officials were not amused. On Friday detectives arrested
Baazee.com's chief executive, Avnish Bajaj, a US citizen and Harvard
graduate. Soon afterwards, the police arrested the 17-year-old as
[What law has the the lad breached? Non-consensual sex? Recording
sexual acts? There seems to be no evidence that he *published* the
[What law has Bajaj breached? EBay isn't the publisher, but a renter
of space. Depending on the terms of contract with posters, might
Bajaj have breached the law had he taken it down or blocked it
without due cause?]
The Delhi High Court yesterday granted bail to Bajaj on condition he
does not leave the country without the court's permission.
The boy and his girlfriend were students at the Delhi Public School,
one of India's most prestigious institutions. He appeared in a packed
juvenile court on Monday - with his face covered - and has been put
in the care of a juvenile welfare officer until he appears again
The case has gripped India, a largely conservative country where
anything more revealing than a wet sari is generally regarded as
More surprisingly, though, the scandal also appears to have provoked
the interest of one of the world's most powerful women.
Dr Rice is understood to have telephoned the US ambassador to India,
David Mulford, about the case. The Bush Administration's National
Security Adviser and future secretary of state has let it be known
she is furious at Bajaj's humiliating treatment.
He was locked up in Delhi's Tihar Jail, the country's most infamous
prison. He slept on a floor with 70 other untried defendants.
it had taken the video off its site as soon as it became aware of it.
The case has even been debated in the Lok Sabha, the lower house of parliament.
The right-wing Hindu nationalist Bharatiya Janata Party - which ruled
India until May and takes a tough line on immorality, especially when
it comes from abroad - has condemned the US "interference".
Delhi police officials have defended their action. They were merely
upholding a comparatively new law preventing the spread of
pornographic material, they said.
[So shouldn't they prosecute the publisher?]
The boy was arrested on Sunday night after a week-long hunt.
He is expected to be charged under the Information Technology Act,
passed in 2000, which deals with pornographic materials and their
Police also arrested an engineering student from a top college in
eastern India last week, saying he had posted the video clip on
Although public transmission and sale of pornography is a crime,
possession and viewing are not. Pornographic videos - often of dire
quality - are available in most Indian cities, where there is a
flourishing underground trade.
[On that basis, *only* the publisher is liable]
[But ... it's only the Grauniad - a not always entirely reliable source]
Roger Clarke http://www.anu.edu.au/people/Roger.Clarke/
Xamax Consultancy Pty Ltd, 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au http://www.xamax.com.au/
Visiting Professor in the eCommerce Program, University of Hong Kong
Visiting Professor in the Baker Cyberspace Law & Policy Centre, U.N.S.W
Visiting Fellow in Computer Science, Australian National University
More information about the Link