Relevant provisions for effective control absent

Updated: Jan 22 2007, 07:23am hrs
The recent incident of a video being posted on the website called YouTube where an Indian youth got dressed as Mahatma Gandhi and performed a poll dance has raised a controversy.

Clearly, it is possibly for the first time that the world is seeing a look alike of a historical personality like Gandhi being portrayed in an extremely derogatory light. There has been a tremendous public outcry to the said event.

Legally speaking, the said content is in the electronic form on the www.youtube.com. This is electronic data and is indeed covered by the provisions of IT Act, 2000. This clearly is an attack on the sensibilities and sensitivity of people within India. The Indian cyber law does provide various ramifications of the same.

The government can invoke the provisions of Section 67 of the IT Act. This is so because the concerned act of putting the said videos online is an act which has resulted in publishing, transmitting and causing to be published information which is likely to deprave and corrupt the minds of those who, having regard to all the relevant circumstances, are likely to see and hear the same. Clearly, this is an offence punishable with imprisonment for five years and Rs 1 lakh as fine on first conviction.

One of the most significant aspects in this entire exercise is the issue concerning extraterritorial jurisdiction. YouTube is a website that is located on servers which are physically located in the United States. It is an American website covered by their laws. A perusal of the terms and conditions of the website clearly shows that it does not want its users to submit material that is unlawful, obscene defamatory, libelous or racially or ethnically offensive or is otherwise inappropriate. It has the inherent right to remove such undesirable content.

One option can be that the website can itself remove the offending material. Else, the Indian government clearly has a choice to press the liability of the website as a network service provider under Section 79 of the IT Act, 2000. Section 79 states that network service providers are clearly made liable for all third party data or information made available by them. There are only two exceptions to such a liability and for proving the same, the onus of proof lies on the website.

It will be interesting to see how the government takes a decision in this direction. In addition, it also has the possible power of blocking the website YouTube. However, this blocking is an interim and temporary measure and cannot be of a long-lasting significance. India can also register a FIR under various other sections of the Indian Penal Code, 1860.

The nation is confronted with the task to request YouTube to remove the obnoxious content. In addition, if the website so desires, the said person or computer could be blacklisted from the website. There is a need to actually incorporate provisions in the IT Act 2000 to provide for more effective redress mechanisms. We dont have any direct provisions to control the spread of the scenario at present but there is a crying need to update our cyberlaws to have relevant provisions to regulate undesirable third party content on websites.

The writer is advocate,Supreme Court of India