[LINK] Liability of Publisher v. ISP/Space-Lessor

[Roger Clarke]

Indian schoolboy's phone sex prank reverberates around the world
The Sydney Morning Herald
Date: December 22 2004
http://www.smh.com.au/text/articles/2004/12/21/1103391774573.html

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 
well.

[What law has the the lad breached?  Non-consensual sex?  Recording 
sexual acts?  There seems to be no evidence that he *published* the 
record]

[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 
today.

The case has gripped India, a largely conservative country where 
anything more revealing than a wet sari is generally regarded as 
culturally unacceptable.

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. 
Baazee.com said

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 
electronic transmission.

Police also arrested an engineering student from a top college in 
eastern India last week, saying he had posted the video clip on 
Baazee.com.

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]

The Guardian

[But ... it's only the Grauniad - a not always entirely reliable source]

-- 
Roger Clarke              http://www.anu.edu.au/people/Roger.Clarke/
			            
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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