Category Archives: Cyber Law

A Primer On Spotting IP Issues Associated with Social Media Websites and Content

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By Charles Macedo, Partner at Amster, Rothstein & Ebenstein LLP

Most businesspeople and generalists understand that social media can be an important but risky part of doing business. This article seeks to identify how to spot potential intellectual property law issues associated with social media websites and content that can arise for a company.

I. Common Aspects of Social Media Websites

There are certain fundamental aspects that internet sites (whether they be social media websites or any other kind) have in common.

First, an internet site resides at a domain name or Uniform Resource Locator (URL). The domain name or URL is like the street address of a website. Social media websites such as Facebook and Twitter will also have specific URL pages for specific users.

Social media may be integrated into company websites directly by allowing for users of the websites to comment or share information in response to postings on the websites (like blogs) or products offered for sale (like product reviews or commentaries). Social media may also be integrated in less direct fashions, such as through sharing links which allow a user to tell his or her friends on a social media website like Facebook that the user “likes” the product, article or website, or by providing a link in a “tweet” on Twitter.

Websites are used for the sale of products, content or the display of other kinds of information.

In addition to merely displaying data or other information in response to an inquiry, websites can also obtain, process, reformat and/or display data obtained from other sources. For example, the US Patent and Trademark Office provides text and image versions of US patents at its website, http://www.uspto.gov. Other websites may use this same information and reformulate the data (sometimes along with other data) in different forms, such as at http://www.google.com/patents and http://www.pat2pdf.org.

All of these types of websites can create intellectual property rights and potentially infringe upon others’ intellectual property rights.

II. Relevant Intellectual Property Laws

Chart: Types of Intellectual Property Assets

Intellectual property is considered property of the mind. Expressions of ideas, identifying information, inventions and business relationships can all be protected (and potentially infringed) through different kinds of intellectual property laws and related legal theories.

  • Copyright law protects original expressions of ideas from being copied by others.
  • Trademark law protects identifying information (e.g., a company’s brand) from being used in a confusingly similar manner by more than one company in a related line of business.
  • Patent law protects new, useful and nonobvious ideas from being used by others.
  • Business Torts law protects against wrongful conduct such as misappropriating another’s property, unfairly competing, or tortiously interfering with someone else’s business expectation or contract.
  • Trade Secret law allows for the protection of secret formulae, patterns, or compilations of information.
  • Contract law protects business partners as the parties to the contact agree.

Social media websites and content can potentially impact a company with respect to each of these areas of intellectual property law.

A. Copyright Law

Copyright law provides legal protection for original expressions of ideas being reproduced without authorisation. Copyright protection covers a large variety of original works, including:

  • “literary works,” like books and magazines, computer software and related works;
  • “musical works,” like songs and the accompanying lyrics;
  • “dramatic works,” like plays;
  • “pantomimes and choreographic works,” like dance movements and ballets;
  • “pictorial, graphic, and sculptural works,” like paintings, pictures, jewelry, toys and statues;
  • “motion pictures and other audiovisual works,” including movies, television broadcasts and DVDs;
  • “sound recordings,” including MP3 files;
  • “architectural works,” like designs for buildings; and
  • original compilations of data.

On the internet, copyright law can be used to protect original content, articles, data compilations and other information on a website. Publication of content on a company’s website or other websites can be protected by copyright law, but failure to timely register a claim to a copyright can limit the company’s damages.

Similarly, copyright law can potentially be used to prevent others from data mining content from a company’s website and using its original content without permission.

In particular, manipulating, parsing, reorganising, and merging public data with other data can lead to potentially copyrightable data. Copyright law can be an effective way to protect a company’s data and other original content.

In addition, if careful analysis is not done upfront on how a website obtains, manipulates and presents data and other information, that website can be the subject of a copyright infringement action by others. Here again, this is an area where consulting counsel in the first instance can save a company a lot of expense and aggravation over the long haul.

In the context of social media websites, blog postings, answers to requests, “tweets”, pictures taken or created and posted on a user’s page, or other content driven expression are all potentially copyrightable. A company needs to be careful how it, its employees and others post the company’s content and content of others.

Some social media websites claim copyright ownership over all items posted on their websites. Other social media websites recognise that the copyright remains with the author (presumably the individual or company posting the content at issue). Before a company allows for its information to be posted on social media websites, it should make sure to carefully review the terms and conditions of such websites to make sure that the company is not unwittingly giving up its copyrights to the content.

Companies also need to be careful of posting the copyrighted content of others without permission. Clearing rights to post others’ copyrighted material is an important step for any company.

Ownership of copyrights is also a difficult area for many people to fully understand. In preparing copyright applications, companies are often lulled into thinking that because the form appears so simple, they do not need expert advice on how to fill it out. However, this is an instance where the apparent simplicity can lead to disastrous results. See, e.g., “Joint Authorship of Doo-Wop Song Found Based on Disputed 10 per cent Contribution to Lyrics” [pdf], JOURNAL OF INTELLECTUAL PROPERTY LAW & PRACTICE, November 1, 2009.

Identifying authors of a particular work and source materials from which a work was derived can be complicated. Also, making sure that a particular work made either with the assistance of or by another is a “work for hire” and/or properly assigned is another area where errors often occur. Many purported copyright owners do not appreciate that not every kind of “work” qualifies as a “work for hire”.

Making sure appropriate contracts are entered into when a copyrightable work is being prepared is important, and it is worth consulting a trained copyright lawyer in the first instance.

B. Trademark Law

In general, trademarks are used to identify a single source of products and services sold on a website.

A trademark is a symbol, a word, or another readily recognisable item, such as a brief musical snippet, that uniquely identifies the source or origin of goods. In other words, a trademark identifies where a particular product comes from.
Trademark law protects against likelihood of confusion; that is, whether consumers are likely to think that the sources of two goods or services are the same.

Web pages commonly use word or logo forms of trademarks. In the multimedia world that the internet has become, it is not surprising to also visit websites where sound marks (e.g., “Hedwig’s Theme” from the Harry Potter movie playing on a Harry Potter website) are used to identify the source of the website.

Similarly, domain names for websites can also be based on a company’s trademark, e.g., http:/www.amazon.com, http://www.panasonic.com, http://www.jvc.com, etc.

In social media, not only is a company’s trademark used in the main URL address, such as the use by Facebook of its trademark in its URL address http://www.facebook.com, but users’ trademarks may be used to identify specific user pages on such social media websites. For example, Starbucks has a Facebook page to advertise a specific coffee product.

On the internet, trademark law can potentially be used to protect competitors from selling goods or services with confusingly similar marks. It may also be used to prevent the use by others of domain names and user pages that incorporate a company’s trademarks and search engines and other software that use a company’s trademarks to divert potential customers to competitors’ websites, products or services.

These are important business tools that cannot be ignored when operating a business on the internet. The role of social media in this potential attraction or diversion is increasing every day as more companies create “fan” pages, social media websites create and implement more widgets to interconnect with other web outlets, and more and more opportunities to use trademarks in URL addresses are created, with not only additional high level domain names (.com, .org, .biz, .net, .tv, etc.), but also with individual user pages on social media and other websites.

To start with, as with other businesses, the selection and use of appropriate trademarks for an internet-based business is quite important. Selection of certain kinds of marks with popular descriptive terms in them can direct the flow of internet traffic to a company’s website.

However, adoption of that same kind of trademark can also result in consumers, who are looking for that company’s products or services, being diverted to a competitor’s website in a fair and reasonable manner.
Consider, for example, one of the leading “pop-up” cases from the Second Circuit involving the mark “1-800-Contacts”. On one hand, whenever a consumer searches for “contacts,” a website containing this mark will be returned. Thus, many potential internet consumers may potentially be driven to the website.

On the other hand, when consumers search for the mark “1-800-Contacts,” consumers may be diverted to a competitor’s website since search engines can sell the key word “contacts” to competitors with minimal risk of being accused of trademark infringement.

Thus, while selecting a mark that includes the product being offered as part of that mark may direct traffic to the website, there may also be great difficulty in trying to stop others from redirecting traffic to their websites.

Another important consideration at the time of selecting a mark is whether others are already using the mark. Thus, it is prudent to do a “clearance search” prior to implementing a new mark.

Trademark law can also be useful in preventing others from adopting domain names which incorporate a company’s registered trademark. These third party domain names using a company’s marks can be harmful to its reputation (depending upon their content) or can divert potential business leads away from the company.

While procedures like lawsuits and ICANN proceedings exist to force third parties that misappropriate a company’s registered trademarks to return the domain names to the company, the easiest way to avoid such costly procedures is for the company to register the various, obvious derivatives of its marks to be directed to its website in the first instance.

Spending fifty dollars today can save a company thousands of dollars in the future. In order to ensure that a company’s trademarks remain enforceable, best practices dictate that a proper system of monitoring and enforcing those trademarks be set up and maintained. Such a system typically includes the use of watch services to review filings with the US Patent and Trademark Office, periodic internet searches, following up with cease and desist letters, and if necessary, enforcement proceedings. Using “alerts” from search engines can also help identify unauthorized use of a company’s trademark on the internet.

For social media websites and other internet venues, the role of whose duty it is to police and enforce against violations differs internationally, as evidenced by the seemingly contradictory results in the U.S. and France in actions brought against eBay for its alleged failings in protecting against the sale of counterfeit items. See, e.g., eBay: A Tale of Two Defenses [pdf], IP Law360, August 22, 2008.

Companies should set up appropriate policing mechanisms to see how their important trademarks are used on e-commerce and social media websites, and when appropriate follow such websites notice and take down procedures to protect against abuses.

While these procedures may at times seem like expensive diversions to a company, the cost of not instituting such procedures can be diverted sales, brand tarnishment, and potentially a loss of trademark rights.

C. Patent Law

Since at least the State Street decision in 1998, patent protection has been important with respect to the internet. Although over the past few years, critics have sought to limit so-called “business method” patents, the recent Supreme Court decision in Bilski v. Kappos has confirmed that such patents are here to stay, and thus cannot be ignored as a class.

Patents are issued for a limited time (20 years from earliest filing date) for new, useful and non-obvious ideas to the first and true inventor.

While patent offices around the world are struggling with this issue, at least in the United States, novel and non-obvious techniques for manipulating data can potentially be subject to patent protection. Similarly, in the United States, other novel and non-obvious business method techniques can also potentially be subject to patent protection. In the context of the internet in particular, at least in the United States, patents can be used to prevent others from copying novel and non-obvious aspects of a website such as:

  • How data is accessed and manipulated;
  • Novel and nonobvious functions of one’s software;
  • New business methods implemented by one’s website;
  • New functionality of one’s software programs;
  • New techniques used to block misappropriation of one’s data.

Because of the difficulties that the US Patent and Trademark Office has had in grappling with manpower issues, confidential subject matter and the flood of applications in this area, it should be recognized upfront that obtaining patents in this area can be more costly, time-consuming and difficult than for patents in other, more traditional subject matters.

With respect to social media websites, patents can potentially cover ways that social media websites operate, ways that a company’s website interacts with a social media website such as through advertisements or linkages, or other operability that may be developed in the future.

As new business models are developed and implemented, patent protection for new and non-obvious practical applications and particular implementations are being sought and obtained, and will be the subject of future litigations in years to come.

D. Business Torts Law

In addition to federal trademark law, there are a host of related state law causes of action (e.g., unfair competition, tortious interference, trespass to chattels, misappropriation, etc.) that can be used to address trademark-like injuries.

Unfair competition is a flexible cause of action directed to address unfair or fraudulent business practices. A cause for unfair competition can potentially address a wide range of conduct by competitors that affects a company’s business.

Examples of cases in which unfair competition claims have been invoked include false or deceptive advertisements, misstatements about a competitor’s products, and other false and misleading statements which injure a business or its reputation.

When actual or potential customers are diverted by improper means from a company’s website, a cause of action for tortious interference with contract and/or tortious interference with prospective business relations may be appropriate. However, since this is a state law claim, it important to make sure to consider the correct law and the scope of potential defences available under that law.

Tortious interference claims can address the circumstances where a company’s trademarks are misused by other websites and cause inappropriate diversion of customers or prospective customers from the company’s website.

Conversion and misappropriation claims apply when property is taken. An interesting legal theory exists whereby a misappropriation claim may be present when goodwill is taken by improper acts, such as adopting another’s business name in a jurisdiction where that entity does not do business, but nonetheless has fame and goodwill based on that entity’s operation in other venues.

Trespass to chattel claims apply when someone improperly intrudes upon another’s property. These types of causes of action have been used, for example, to stop third parties from robot mining data from a website.

E. Trade Secret Law

Trade secret law protects a secret formula, pattern or compilation of information. One of the most famous trade secrets is Coca Cola’s secret formula, or the Colonel’s secret recipe for Kentucky Fried Chicken. Other examples of trade secrets can include a secret manufacturing process, a list of customers or trade routes who purchase or would likely be interested in purchasing a particular product or service, or the source code for a computer program.

Most companies protect some aspect of their businesses using trade secret protections. Some are better than others at doing so.

Social media and the internet can put at risk a company’s trade secrets. Since the sine qua non of a trade secret is that it is kept secret, the speed and ease in which information can be rapidly (and permanently) distributed with a click of a button in social media and internet poses a clear risk for any company seeking to maintain a trade secret. A simple posting of a company’s secret information can destroy the secret and leave that information to be available to anyone.

Consider, for a second, a company that considers its customer list to be a trade secret and seeks to protect such information. A salesperson who identifies those customers as “friends” on Facebook, or “connections” on LinkedIn, or some other similar status on another social media website, could destroy the secret nature of such a list. It also can lead to that salesperson, in essence, appropriating that information should he or she leave to go to work for a competitor.

F. Contract Law

Contract law can be used to fill gaps in intellectual property law, and obtain protection that might not otherwise be clearly available.

The best time to work out the scope of rights with a business partner is at the beginning of the relationship. At that time, parties are more willing to give and take with each other since the prospect of a successful and profitable business relationship is around the corner. Thus, at that time, provisions can be included in agreements that help ensure that intellectual property will be recognized and respected.

However, care must be taken on how the contract clauses are drafted in order to avoid the risk of such clauses becoming unenforceable.

Arm’s length agreements can be useful ways of establishing royalty rates for intellectual property. Care must be taken in specifying what is being paid for pursuant to the agreement, such as the services, goods, rights to use intellectual property, etc.

Non-compete clauses, so long as properly drafted considering appropriate state law, can provide protection that other areas of intellectual property law might not otherwise provide. For example, non-compete clauses can protect a company from key employees leaving and stealing business or trade secrets. Again, care must be taken to come within the parameters of the particular state law that governs the contract.

Agreements which license rights to use a company’s trademarks can include remedies that are broader than the law might otherwise provide. Consequently, the uses that a company tolerates by agreement can affect the uses that the company can object to in future disputes. The failure to include certain necessary clauses in trademark licenses can have adverse results on the enforceability of such marks in future contracts.

Shrink wrap/click through agreements can be used to prevent misuse of a company’s data by users. However, enforceability of such agreements may be an issue, depending upon the terms, conditions, choice of law and method and document by which the user acknowledges acceptance.

Contracts can also be used to fill other gaps that other forms of intellectual property law might otherwise leave open.

III. Conclusion

For internet business, like other business, the use of intellectual property law needs to be carefully considered.

A strategic plan should be developed on how to identify a company’s intellectual property, turn it into a tangible asset and properly enforce and protect it.


(This post is by Charles R. Macedo and was has been reproduced from IP Watch where it was  published under a Creative Commons BY-NC-ND licence.)

Facebook URLs

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A short while ago, Facebook announced personalised URLs. For most individual users, this is probably little other than an additional feature. However, for companies, brands, products, services and public figures, it could have important intellectual property implications. If such entities / celebrities have active Facebook accounts, it would make sense for them to reserve unique usernames associated with their Profile Pages whether or not Facebook figures prominently in their business plans. If reserved, the selected username would appear as follows: facebook.com/username with the username replacing a randomly assigned numerical reference.
 
Eligibility:
Businesses or brands must have been live on Facebook before May 31, 2009 and have had at least 1,000 fans at that time to be eligible to select a username. Facebook has said that new users can reserve a username on June 28, 2009 but it is unclear if this also applies to Profile Pages for businessses.
 
Implications for trade mark owners:
If possible, it makes sense to secure a username as soon as possible so as to secure the trade mark and to prevent name/cyber squatting. The usernames cannot be changed once they are submitted at: http://www.facebook.com/username. Further, usernames cannot be assigned.
 
Prevention of unauthorised use:
The owners of registered trade marks can prevent their trade marks from being reserved as usernames by filling out (or authorising another person to fill out) an online form located at: http://www.facebook.com/help/contact.php?show_form=username_rights. However, this is unlikely to help those who do not have registered trade marks.
 
Infringement Allegations:
In case some reserves a trade mark owner’s mark as a username, the owner can report this to Facebook at: http://www.facebook.com/copyright.php?noncopyright_notice=1 although it is unclear how Facebook plans to resolve disputes. Although Facebook has reserved the right to remove usernames, it is also not clear whether removed usernames will become available for others (in this case, the trade mark owner) to use or if they will simply pass out of circulation. If the latter is the case, the trade mark will not be available to the owner which makes it important to secure it as soon as possible.

Sign Only What You Mean

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When was the last time you signed a contract without reading it?

If you think you’ve never done that, have you ever read the terms and conditions which are in a little scrolly box before you’ve signed up for an eMail account? Do you know what Orkuts terms of service are? Or for that matter Facebook’s or Twitter’s are?

Whether or not one thinks of it, they are legally binding contracts. One recent example where such a contract was used against someone was in Megan Meier’s suicide case. Megan killed herself at the age of thirteen after being rejected online by a person she thought was a sixteen year old boy. That person, however, turned out to be Lori Drew, the mother of one of her friends.

Strangely enough, there were no laws which could readily be applied to prosecute the woman so she was ultimately charged with violating MySpace’s terms of use which, among other things, do not allow ‘promoting information users know to be false or misleading, or soliciting personal information from anyone under the age of 18 or using information gathered from the Web site to ‘harass, abuse or harm other people’.’

Presumably Ms Drew had no idea of what the terms of service were although in all probability, knowing them would not have stopped her from acting in the way she did.

The point, though, is not merely that she didn’t know what she signed up for but that the contract was treated as being binding on her and was given the ‘force of law’.

This is, by no stretch of the imagination, the only case in which a contract has been given such force. In the recent case of the overweight air hostesses the single judge bench of the Delhi High Court described the employment contract the air hostesses has signed as their nemesis. And in that case, it appears that the air hostesses did in fact know what they had signed.

Nonetheless, despite knowing what the pitfalls of signing agreements without knowing what their contents are or signing agreements without wanting to be bound by them, it’s something most people do without thinking twice.

Think of all the times people have signed loan agreements which say that they will repay money at 20% interest just because their money lender says, “But I’ll charge you only 14%, just let this be there on paper.”

The problem with just letting things be on paper is that if you sign them, they will bind you. It doesn’t matter if you have a separate oral agreement with different terms. It doesn’t matter if the other party claims that he won’t enforce the terms on paper.

The law of evidence very clearly says that oral evidence is excluded by the existence of documentary evidence. There are a few exceptions and provisos but they apply so rarely that it’s hardly worth taking them into consideration at all. For example, if you do not write your whole agreement down, while interpreting it and deciding whether or not you can give oral evidence about a supplementary oral agreement which you have not written down and which does not go against anything you have written down, the court will take into consideration ‘the degree of formality’ of the contract i.e. basically, who drafted it. And the contract will be interpreted differently depending on whether it was drafted by two laymen over coffee or by two dozen overpaid lawyers.

As a general rule, the only thing which a court will take into consideration is your written contract.

The moral of the story: sign what you mean, and mean what you sign.

Notes which Self-Destruct

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It may sound Harry Potterish but allowing people to send notes which self destruct is actually a service provided by Privnote.

This seems to be how it works: you write a note and then post it. The note gets stored somewhere — the site doesn’t say where — and you’re given a link where you (or someone you give / mail the link to) can read it. The link works just once after which the note is destroyed. Privnote says the service provides ‘a little extra privacy at zero cost’.

The company also says in a disclaimer which shows up when you click on a link they send you that they ‘store the notes encrypted in a way that only the sender and receiver know how to decrypt’. This means, they say, that they cannot read the notes sent through Privnote. And, obviously, the company does not shoulder ‘any responsibility for the views and opinions expressed in the note’.

However, as Brian Beckham points out, the site does not specify exactly what happens to the data sent through its system. He asks some pretty important questions:

‘Can the company retrieve information which has supposedly been destroyed? Is it compiling a profile on those who use the service? Would it turn the info over to the feds or anyone else armed with a subpoena?’

Privacy Policies are unusual in themselves. They’re common but that’s not the same as being ‘usual’. They are among the few instances where companies and others take it upon themselves to restrict their own freedom by saying that they will use the information they receive only in certain specified ways. The promises contained in Privacy Policies are binding on those who make them, and liability can be incurred if they are broken.

Nonetheless, as Brian says, one would assume that a company which provides a service which is all about privacy would have a clearly defined privacy policy. Privnote, however, doesn’t seem to have one though.

Perhaps the service is best suited to the needs of teenagers who’d like to spice things up a bit by sending each other supposedly private notes. Somehow, one can’t help but think that it isn’t a very bright idea to send confidential professional information across without actually knowing what’s happening to it.

Nasty Comments on Your Blog

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What do you do if someone leaves distasteful comments on your blog?

The law regarding comments is actually a bit dicey: if a blog owner’s Terms of Service clearly say that they allow unmoderated comments, that they bear no responsibility, and if they remove nasty comments once they’re brought to their notice, they generally won’t be held liable for nasty comments made by other people. The picture changes, however, if the comments on a blog are moderated: if a blog’s owner chooses to take on the responsibility of not allowing nasty comments, then they will be liable if any appear. The result is that absurdly enough, the less care you take, the less liable you are. This is, however, drawn from case law in non-Indian jurisdictions; the Indian position is unclear.

The Law Applicable

In the case of a blog, there are two different agreements.

One between the owner of the blog and and WordPress / Blogger / Blogware / whichever service used i.e. the fascinating Terms of Service which hardly anyone ever reads.

In the case of blogs hosted by WordPress / Automattic, that agreement is governed by US law. As far as the choice of forum is concerned, there seem to be three aspects, briefly: (a) that disputes regarding the access to / use of the site are to be settled at a San Francisco court, (b) that disputes regarding the terms of the ToS themselves are to be settled by specified arbitrators and (c) that injunctions can be obtained and IP claims settled at any competent court.

The Automattic ToS does not speak of which law applies to the IP claims and one can only suspect that the issue is arguable since according to the agreement, all IP remains with authors and is not assigned to Automattic. So, the content of a blog may not automatically be treated as a part of the site to which the ToS applies.

However, the ToS is a boilerplate contract so presumably it could be challenged in an Indian Court which probably wouldn’t be too useful since in the absence of unconscionability etc., Indian Courts are not particularly enthusiastic about interfering with contractual choices of law or fora.

The second agreement would be between the owner of the blog and their visitors.

In such a case, the owner of the blog could be the one to impose a standard contract saying that the use of their blog is governed by so-and-so law. Or that all disputes in relation to it are to be settled at such-and-such place.

If the owner of a blog does not have such an agreement, if a case was to be filed, it could be done wherever the cause of action was to arise. Obviously. The country where it was filed would generally apply its own law. Any court could choose to override the ToS of the owner of the blog. The only thing the ToS would do is give them a much firmer ground to stand on while arguing their case.

The bottomline is that there’s nothing to stop anyone from filing anything anywhere. The best the owner of a blog can hope for if that happens is that the case gets thrown out in a hurry.

Consider a case where a third party were to sue for a nasty comment about him. Continuing with the same example, WordPress, if it could be sued, would probably have to be sued in the US because that’s what its ToS mandates. The owner of the blog could theoretically be sued in India. Or the blog service provider and the owner of the blog could be sued wherever the comments were viewed and the damage was done (although an Australian Court refused to allow a plaintiff to sue in such circumstances in Australia a while ago because of a ToS agreement which said that all disputes must exclusively be settled in the US).

In India, case law is still emerging and statutory law is woefully inadequate at the moment.

Defamation

Defamation in India is both a criminal offence and a civil wrong, and there is nothing to stop someone from suing the owner of a blog. And if he / she showed that the actions / inaction of the owner contributed to the defamation, presumably, that person would probably be awarded damages.

As far as defamation as a criminal offence is concerned, the position is somewhat different and only the person who actually makes a defamatory statement can be prosecuted. The Penal Code which was drafted in 1860 obviously has not taken the creation of the Internet into account.

The IT Act

Section 79 of the Information Technology Act, 2000 which deals with the liability of ‘webmasters’ says:

Network service providers not to be liable in certain cases
For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

A ‘network service provider’ means an intermediary, and under Section 2(w) of the Act, an ‘intermediary’ with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.’Third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.

Online Privacy

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The Judge Kozinski and the porn / non-porn / (?) mess has been all over blawgosphere. It appears that an attorney who has been widely reported to be disgruntled accessed the Judge’s family server and got the L A Times to print a story about some of its contents which were supposedly pornographic. There were also some mp3s on the server.

If this were India, there little doubt that the material would be perceived as being obscene both legally and otherwise and that there would be a massive outcry. Although, that being said, it’s somehow doubtful whether the average Indian judge would ordinarily maintain a server and, if he did, whether he would have anything worth mentioning on it.

However, considering that the content seems to have been legal in the US, the episode has raised some interesting questions about privacy. In particular, whether, if you have a server which you use for your own personal use, whether you have a reasonable expectation of privacy. Some scholars like Prof. Lessig weighed in in favour of Judge Kozinski inter alia saying that privacy is not determined technology. One can’t help but suspect that it’d probably be more accurate to say that privacy should not be determined by technology although, in reality, it is — the virtual equivalent of having someone go through what’s on your desk. If your desk is locked, it is evidently private. If it isn’t, in theory, it should ordinarily be private but there are a number of people who won’t respect that privacy.

Which brings one to whether it matters if privacy is determined by technology in that sense that if you consider something online to be private and someone, possibly by because of a superior knowledge of technology, accesses that material, has your privacy been violated? What would you need to do in order to ensure that your material was in fact private? Would you need to restrict search engine access to it or would you have to password protect it.

Some professionals do not use much (or any) technology worth mentioning to protect documents they transmit online rely instead on merely having a notice which clearly says that the contents of the document are private. In some jurisdictions, that is enough to ensure that the document is acknowledged to be private and (with some luck) respected as such. And although such notices do not prevent persons from accessing documents, they do limit liability and other similar issues.

In this case, the Judge seems to have placed material on a personal server which he seemed to have assumed was private. At first glance, his actions don’t seem to have been illegal but they do seem to have been naive. Personal material is not the same as private material and a personal server certainly isn’t the same as a private server.

However, if you have something online which you consider to be personal and someone accesses it, can any consequences follow from that person’s having accessed the material if you didn’t authorise him to access it? Presumably not.

Had this played out in India, in terms of privacy, the consequences would have been spectacularly unclear since the law on privacy is undeveloped. In terms of obscenity, however, there would have been little debate.

Indian law on the subject of obscenity is Victorian and under the Constitution, the right to free speech is not unqualified. Article 19 (1)(a) of the Constitution says that ‘all citizens shall have the right to freedom of speech and expression’. This right is then limited by Article 19 (2) lists several exceptions to the right by saying that the right can be limited by reasonable restrictions imposed by any law (either existing or in futuro) enacted in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The MMS Scandal and the Law

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In a case involving an MMS showing two schoolchildren engaged in an intimate act being uploaded on to a website, Justice Muralidhar of the Delhi High Court pointed out that ‘since the IPC does not recognise the concept of an automatic criminal liability attaching to the Director where the company is an accused not even a prima facie case for offence under sections 292 and 294 is made out [against Mr Bajaj, the MD of the company at the time].’

Justice S Muralidhar went on to drop charges under the Indian Penal Code against Avinash Bajaj, the former Manging Director of Bazee.com (now Ebay India Pvt. Ltd.). Mr Bajaj had been charged with offences under IPC as well as with offences under the Information and Technology Act.

Pornography is easily available in India (just as it is in the rest of the world). In fact, any discussion about the availability of pornography is ludicrous in the Age of Online Porn. And, whether or not one wants to admit it, it is closely linked to prostitution and to trafficking: ‘today, the hunt for cheap, easy prey has been made significantly easier because the prowlers know exactly where to click’.

There are provisions in the Penal Code, the Information Technology Act and the Indecent Representation of Women Act to deal with porn and other forms of indecent representation though.

The Indian Penal Code says:

    Any book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, is deemed to be obscene under Section 292 of the Indian Penal Code ‘if it is lascivious or appeals to the prurient interest or if its effect (or where it comprises two or more distinct items, the effect of any one of its items) is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

    Under Section 292 (2), whoever

  1. sells, lets to hire, distributes, publicly exhibits or in any manner, puts into circulation or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever or
  2. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation or
  3. takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation or
  4. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this Section or that any such obscene object can be procured from or through any person or
  5. offers or attempts to do any act which is an offence under this Section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

    This Section does not extend to:

  • any book, pamphlet, paper, writing, drawing, painting, representation or figure
    1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern or
    2. which is kept or used bonafide for religious purposes
  • any representation sculptured, engraved, painted or otherwise represented on or in
    1. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or
    2. any temple or on any car used for the conveyance of idols or kept or used for any religious purpose.

    And under Section 293 which deals with the punishment of an act listed in Section 292, ‘whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding Section or offers or attempts so to do, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.’

The Indian Penal Code does not define obscenity itself. In Ranjit D Udeshi v/s State of Maharashtra, 1965,2 the Supreme Court, however, accepted the test formulated over a century ago in R v/s Hicklin, the case under which a bookseller was prosecuted for keeping and selling the supposedly obscene Lady Chatterley’s Lover. Despite the furore which the book created when it was first published, by itself, it simply cannot be considered obscene by contemporary standard and as such, the test in R v/s Hicklin, which quite simply fails either to recognise or to make provision for this change in the perception of obscenity, should not have been accepted.

Parliament passed the Indecent Representation of Women (Prohibition) Act in 1986. It extends to the whole of India except the State of Jammu and Kashmir and is meant to ‘prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures’.

‘Indecent representation of women’ means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent or derogatory to or denigrating women or as is likely to deprave, corrupt or injure public morality or morals. 3

Further, there is a provision in the Information Technology Act, 2000 which deals with the publishing of information which is obscene in electronic form.

The Information Technology Act was passed by Parliament in 2000 primarily to provide legal recognition to eCommerce and is based on UNCITRAL’s Model Law for Electronic Commerce which the UN General Assembly adopted on January 30, 1997. Section 67 of the Act says:

Whoever publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and with fine which may extend to two lakh rupees.

Apart from online porn, recently, a large number of men have been morphing photos of women who either dump them or simply reject their advances and posting them on the Net. There doesn’t seem to be very much that can be done about it – once the photos are on the Net, the damage has usually already been done as far as the woman involved is concerned.

Moving away from relationships which have gone sour (assuming they existed in the first place) though, another form of indecent representation which has been much talked about is that which is on TV. Apart from a large number of PILs being filed against various actresses for wearing supposedly indecent clothes in performances, in January 2007, the Government temporarily banned the AXN Channel for showing supposedly indecent content.

While the judiciary has been trying to curtail instances of frivolous public interest litigation being filed by persons suffering from bouts of self-righteousness, the Government has increasingly been making forays into realm of morality although, as Jug Suraiya4 pointed out, “A perverse politics of pornography seems to prevail. A State apparatus which cannot grant its citizens the most basic of life enhancing requirements – primary healthcare, education, gainful employment, safety from violence – shows compensatory zeal in protecting its people from the ill-effects of moral pollutants in their most ingenious of Avatars… even as the regular police turns a blind eye, or worse and acts as an accomplice to rape, murder torture and other obscenities of violence.”

In Bobby Art International v/s Om Pal Singh Hoon, 1996,5 the Supreme Court did not quash the certificate of exhibition of a film which told the story of a tribal girl – Phoolan Devi – whose being exposed to various forms of brutality shown in the film (including gang-rape) turned her into a dreaded dacoit known as the ‘Bandit Queen’. The Court held that the film had to be judged in its entirety and that nakedness did not always arouse a baser instinct.

References:
1. Malarek, Victor; The Natashas; Arcade Publishing; 2003
2. AIR 1965 SC 881
3. Section 2; Indecent Representation of Women (Prohibition) Act, 1986
4. Suraiya, Jug; Risque and Porn: Can I& B tell the difference?; The Times of India; 21.1.2007
5. (1996) 4 SCC 1
6. Indian Women: A Socio Legal Perspective; Saikia, N