Apar Gupta
Four years ago the Delhi High Court in granting bail to Mr. Avnish Bajaj, the CEO of Ebay India (popularly known as the Bazee MMS Case) stated that the case will “address the dangers which are endemic in this type of business”. Recently when hearing an application to quash the charges which were framed against Avnish Bajaj the court extensively analyzed provisions of the Information Technology Act.
The Court held that the charges under the Indian Penal Code are not made out against Avnish Bajaj. However, the court maintained the charges under the Information Technology Act and directed the Trial Court to proceed with trial with the offences under those sections.
The decision must come as a relief for Avnish Bajaj above and beyond the obvious discharge under the Indian Penal Code. With the trial being now limited to the Information Technology Act the safe harbor provisions of the act can be impleaded. The safe harbors under the act are limited to excluding liability only under it and leaves internet intermediaries vulnerable to civil and criminal liability flowing from the provisions of other enactments. Hence, now Avnish Bajaj can escape all liability by the good faith and due diligence defenses!
It comes as no surprise that this case was decided by Justice S. Muralidhar. The judge seems adept and comfortable at the task of statutory interpretation of the Information Technology Act. The decision has a certain air about it to make me feel that it will be the seminal decision on intermediary liability in India for sometime.