CHAPTER-XI: OFFENCES

Section 67: Publishing in electronic form of information which is obscene

(1) Save as provided in this Act under Section 79 which exempts intermediaries from liability in certain cases, whoever publishes or transmits or causes to be published in the 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 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 two years and with fine which may extend to five lakh 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 ten lakh rupees.

(2) Whoever intentionally and knowingly publishes or transmits through electronic form any material which relates to child pornography, shall be punished with imprisonment for a term not less than three years and with a fine which may extend to ten lakh 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 ten lakh rupees.

Explanation: - For the purposes of this section “child pornography” means material that features a child engaged in sexually explicit conduct.

Exception – This sub-section (1) does not extent to –

(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form –

(i) 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
(ii) which is kept or used bon fide for religious purposes;

Unlike its predecessor section, i.e. section 66, section 67 does not involve any “overlapping” between criminal and civil liability. The problem with section 66 is that its contents are also finding place in section 43. Thus, even if a case for “criminal liability” cannot be made out, the civil liability will be there. The civil liability seems to be a “strict liability” provision because to escape the clutches of “exemplary compensation” the accused has to prove that he has not “performed” the alleged act at all. This is so because the operating part of section 43(1) nowhere talks about any “damage or injury” as the essential requirement for its application and the moment any specified act is “committed” the rigours of section 43(1) may come into picture. For instance, X is charged for “hacking” by the prosecution agencies. Now if he has not committed the act of hacking “dishonestly or fraudulently” then he cannot be held liable under section 66 but he can still be liable for giving “exemplary compensation” under section 43 as the provisions of these two sections are overlapping. It seems in the zeal of reducing the “punitive sting” of the Act, the Committee has created a chaos. Section 43 provides no safeguard to escape the “exemplary compensation” and if an accused even admits that he committed the act of hacking, even innocently, he will be liable for giving compensation. The same holds true about others offences under section 66.

It would be better to specify the circumstances when liability under section 43(1) will arise “independently” of section 66. It would be better if the words “damage or injury” also find a place in the operating part of section 43(1) and are not limited to the title alone. In the proposed form it may appear as a “strict liability” action. Thus, to remove any doubt the words damage or injury must be added in the operating part of section 43(1) and explained through explanations. That is the only way to justify the expression “person so affected” mentioned in section 43(1). For instance, a person’s privacy is violated the moment someone gains illegal access. He is definitely the person affected by the illegal access. Thus, in the given circumstances section 43(1) may operate by fixing the “strict liability”. It needs further clarification.

Section 67(1): Section 67(1) is subject to section 79 which exempts intermediaries from liability in certain cases. This was originally not there and the recent MMS episode is the guiding factor for this provision. A more detailed analysis will be done while dealing with section 79.

What is disturbing is the unnecessary reduction in the quantum of imprisonment, though fine has been raised at one place.

The Committee must be praised for introducing exceptions in “public interest” by attaching the exception to section 67(1).

Section 67(2): Section 67(2) is dealing with “child pornography”. It is interesting to note that a person can be held liable under section 67(2) only if he “intentionally and knowingly” publishes or transmits through electronic form such child pornography.

Now it is not advisable to use the expression “and” here. Instead the expression “or” is more appropriate. Otherwise, it would be a Herculean task to prove both intention and knowledge at the same time.

Secondly, the protection available to NSPs, etc under section 67(1) cannot be claimed under section 67(2).

Thus, except substituting the word “and” with “or”, section 67(2) is a very good provision that has been suggested.

Praveen Dalal
Consultant and Advocate
Delhi High Court
Tele: 9899169611.