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India's porn police bring their quarry to eBay
By Siddharth Srivastava

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.

Some are now protesting that the police and courts might have overdone things without a real understanding of how the online community works. Nevertheless, the massive crackdown on online smut should serve to remind those immersed in the virtual world not to forget reality and individual sensitivity.

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.

A comment in the Times of India reads: "Showcasing a two-minute clip of schoolkids' smut is hardly unusual for an online auction company that's been home to folks wanting to sell their virginity, a ghost in a jar, a windbag (full of air from Hurricane Isabel), evil in a bottle, a hairy armadillo, and a rotten cantaloupe among other things. Since its founding in the US in 1995, eBay, the parent company of Baazee.com, has flirted with the kooky and the spooky, the nutty and the smutty. But it has also redefined the rules of retailing and is one of the few great successes of the Internet age that saw most e-commence ventures flame out. EBay has been in the news for hosting some dodgy sales, but typically it withdraws items of questionable taste or origin when it is brought to its notice, and none of its executives have had to see the inside of a clink in the US on this account. On Saturday, the site threw up more than 1,000 items under a search for 'porn', all of which are available to any Indian with a credit card and a mailing address."

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.

National Association of Software and Service Companies (Nasscom) chief Kiran Karnik said: "It is a shame that Bajaj was arrested under the pretext of investigation, despite his full-fledged cooperation to the police. He is a well-known and respected personality in the industry. What was the need to arrest and jail him like a criminal?"

According to Sam Pitroda, who initiated the telecom revolution in India, "It is not such a black-and-white issue. On the contrary, it is very complicated. There are issues of legality and morality that need a closer look but the way the government went about it was distinctly in bad taste."

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.

Siddharth Srivastava is a New Delhi-based journalist.

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Dec 22, 2004

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