Release the CEO of eBay India (Baazee) – a travesty of cyber-law and e-commerce Petition

Release the CEO of eBay India (Baazee) – a travesty of cyber-law and e-commerce Petition

This petition seeks your support to

1. ask for the immediate release of the CEO of eBay India / Baazee.com
2. ask for the Government to clarify its stand on the legality of e-commerce in India without ink-on-paper signatures
3. ask for the governemnt to immediately change the Information Technology Act to afford the accused the same level of protection (innocent till proven guilty) as the rest of regular law does

In case you agree, please do sign the petition at http://www.petitiononline.com/baazee/petition.html

Full Text Follows (from http://www.petitiononline.com/baazee/petition.html)

To: Dr. Manmohan singh, the Prime Minister of India

Many of you may have heard of this case – where the CEO of eBay India (better known as Baazee.com) was arrested in New Delhi – because some merchant offered for sale a pornogrphic video on the auction site.

[Before I get into the facts of the case – I’d like to say I’m not affiliated with eBay India / Baazee in any way. I am a technology investor in India – and several of my investee companies are involved with e-commerce – and I’m starting this petition because the arrest raises far wider implications that can affect the entire industry of internet-based businesses in India and perhaps elsewhere too.]

The facts of the case are:

1. A boy in New Delhi used his mobile phone to shoot a video of a girl performing a sexual act on him – and then sold the video to his classmates, who then further uploaded it on the internet and it eventually got talked about, written up about, and even sold on CDs in shops in New Delhi and elsewhere.

2. The video found its way to the internal network of one of India’s top engineering schools, the Indian Institute of Technology (IIT) in Kharagpur, where it apparently was popular.

3. One student at this IIT, Ravi Raj, then allegedly went to eBay India / Baazee, where he was signed up as their merchant doing business under a different company name (after reading and agreeing to their terms of service which expressly forbade trade in any pornographic items) and put up an ‘item’ for sale, which advertised that he would email back a “video of Delhi girls having fun” to anybody who sent him Rs. 125 (about US$3). This was on the afternoon of Saturday, November 27.

4. In the next 2 days, 8 people sent in money to Mr. Raj, and he emailed them back attachments of the said file. None of this exchange happened on eBay India / Baazee – and at no time was any pornographic material of any sort hosted on eBay India/Baazee’s network.

5. Now eBay India / Baazee has tens of thousands of merchants and its automated keyword scanning systems didn’t catch anything untoward in the title of the ad. Nevertheless, when the company was informed of this listing on Monday, November 29, the next working day, it immediately yanked the item off the site.

6. The police then contacted eBay India / Baazee in Mumbai, where it is based, and the company cooperated fully with the authorities, disclosing the identities of the seller and the buyers of the item. The police then followed up and remanded Ravi Raj to their custody, but apparently found no fault with the Director of the IIT, who’s network hosted the video.

7. The CEO of eBay India / Baazee, Avnish Bajaj, an American citizen then flew to New Delhi on December 17 on a police request to help with their investigations – and then suddenly found himself in the surprising position of being arrested by the Delhi Police – apparently under Section 67 of the Indian Information Technology Act of 2000

8. When eBay India / Baazee’s lawyers applied for bail 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. Mr. Bajaj was then remanded to further custody for a week – which is where he still remains.

This petition seeks to not just gather support for Mr. Bajaj’s immediate release – but also to raise the people’s and the Government’s awareness on issues relating to e-commerce.

A. By rejecting the admissiblity 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 Rs. 18 crores (US$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 – which amount to hundreds of crores of rupees a year.

B. There are other serious issues with the very nature and reasoning behind the arrest. Mr. Bajaj was apparently arrested under Section 67 of the Indian Information Technology Act of 2000 – which basically puts the onus to prove innocence on the defendant (in other words, if charged, you’re assumed to be guilty till you prove yourself innocent). By the act’s definitions, it would appear that eBay India / Baazee come under the description of a “Network Service Provider”, a party that is now being held responsible for the transmission of any salacious and / or prurient / pornographic material, or causing of the transmission of such material.

C. Another section of the same act, Section 79, then offers safe harbour for the defendant if they can prove that either they were unaware of the nature of such material on their network – or that they took reasonable safeguards to prevent the entry of such material in to their network. The point here is that – if charged, you have to prove your innocence after your arrest – as opposed to normal legal practice of assuming innocence till guilt is proven. One would assume the right procedure would be for prosecutors to gather evidence, go to a court of law, argue their case, persuade the authority that an arrest is called for and then proceed.

D. Further, while I am not a lawyer – I believe that an advertisement for salacious material, even if innocently called “Delhi girls having fun” does not qualify as “transmitting or causing the transmission of pornographic material” as defined under Section 67.

E. I further believe that an online click-to-agree-to-terms-of-service before you’re allowed to sign up SHOULD have the same status as a signed document – and I understand from lawyers I have spoken with that the very same Indian Information Technology Act and its modifications of the Indian Evidence Act – do allow for the same level of admissibility.

F. I am also told that this has never before been tested in Indian court, and this is the first such test.

G. I further believe that the arrest of the head of the Indian arm of one of the world’s most respected e-commerce companies under Criminal Law where there is clearly demonstrable lack of criminal intent is a huge, retrograde step for a country that seeks to attain excellence in all fields of information technology

H. This can only further push other investors to look at India with doubt for its ability to offer a strong, fair law that protects the interests of internet and other technology-driven businesses here.

This petition seeks your support to
1. ask for the immediate release of the CEO of eBay India / Baazee.com
2. ask for the Government to clarify its stand on the legality of e-commerce in India without ink-on-paper signatures
3. ask for the governemnt to immediately change the Information Technology Act to afford the accused the same level of protection (innocent till proven guilty) as the rest of regular law does.

Sincerely,

The Undersigned

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One Response to “Release the CEO of eBay India (Baazee) – a travesty of cyber-law and e-commerce Petition”

  1. Prem Piyush Says:

    I have Posted one .Wish he be released soon and Govt make necessary modification, elaboration and implementation of Section 67 of the Information Technology Act.

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