I run a cyber cafe at Akola and recently faced a lot of trouble from the police. On August 11 at about 10:30 am , the police raided a cyber cafe in the town, reportedly on a tip off that a pornographic film was being screened there.

The cafe, like some others here, have cabins with doors. I, on the other hand, provide no privacy in my cafe. The police caught a boy and a girl allegedly in a compromising situation, watching porn films. About four or five customers, doing legitimate stuff such as checking e-mails, etc, were also rounded up and taken into custody. The police then, raided four more cafes, including mine. I was not there but rushed to the cafe as soon as I was informed about the arrival of the police. There were three customers and a boy who works for me. Two of the customers friends were using the internet for the first time to create e-mail IDs. Two technicians of the police arrived first, followed by the cops and men in plainclothes.

The technicians went straight to two machines, without permission from the attending person, and clicked on File, Find, *.mpg in My Computer and found some clips from internet sites you get these through pop up sites. They are easily downloadable, at just the click of a mouse. These were trailers of adult sites on which we have no control. Somebody had saved them on two machines. My machines were formatted a few days before the raid as they were giving problems and had become very slow. I run my business ethically, we do not keep any pornographic CDs, or hire/ sell such material. There was no pornographic site open on any computer when the police arrived. I tried to explain, but I was led to the police jeep and made to sit there for about two hours along with the three customers and my attendant. They removed all wiring connections and six CPUs, six monitors along with keyboards, mouse, mousepads, scanner, multimedia speakers, headphones etc. The whole exercise was evidently pre-arranged as two local and two national channels were present there to film the raid. At the City Kotwali, there were 22 persons detained from five cafes and the computers seized. The police held a press conference and the next day the whole thing was published in the papers along with the names of cafe owners. IPC Section 292 and 108 were framed against us and I was released on a personal bond. I got the machines, costing less than Rs 1.4 lakh, released on a bond of Rs  2 lakh. I have started the cafe again, but the police scare has almost finished my business.

Could you please throw light on the crime committed by me? Is the police correct in framing charges under IPC 292? What can I do to avoid police action in future? As cafe owners have no control over websites and their contents, what can we do? Can I sue the police for intentional harassment or defamation?

Advocate's Answer

Your email discloses the plight of cybercafe owners today. There is no mechanism available to block pornographic sites completely, but under the Indian cyberlaw, they have tremendous responsibility, accountability and liability because they are network service providers and are liable for all third party data and information made available on their service. This includes the liability for pornographic sites visited in your cyber cafe. It is only in two circumstances that cybercafe owners are not liable. The first circumstance that has to be proved is that they had no knowledge of the contravention. The second condition is that the contravention of law took place despite all the due diligence exercised.

In this instance, a case has been registered under Section 292 of the Indian Penal Code. This deals with distribution, public exhibition, and putting into circulation of any obscene book, pamphlet, paper, writing, drawing, painting, representations, figures or any other object. Since pornographic files have been found from your computer, you are indeed liable under the law. It is in your interest that the case has been registered under Section 292 of the IPC and not section 67 of the IT Act.

I fully agree that cybercafe owners do not have any control over the sites and contents on the internet and cybercafe owners should not be made liable, but that is the defect in the law. You will have to bear with it until it is changed or amended. It is true that the government has now adopted a different approach to block pornographic sites, however, the approach is based on wrong assumption and therefore is unlikely to succeed. Also, the government has failed in enabling peoples participation in the process.

It may not do you much good to sue the police for intentional harassment and defamation, as they could take the defence that they were acting in pursuance of their official duties. Regarding what you can do to avoid further harassment at the hands of the police, the first option is to ensure that your cybercafe policies are transparent. Ensure that you do not have closed-door cabins open cabins will ensure that anyone can see what the other person is browsing. This can be attacked on the ground of violating privacy, but in the absence of any privacy laws, you are unlikely to land in trouble on this issue. On the contrary, such actions will help you to demonstrate your bonafide intentions about doing your business in a transparent manner and will help you to avoid further harassment. It is also important that you put up banners, charts and posters in your cyber cafe advising visitors not to browse pornographic websites.

Since you are a cybercafe owner, you could take the initiative of actively discussing with netizens the consequences of browsing pornographic sites in the cyber cafe. These are some of the options you have under the said laws. There is no guarantee against police harassment as running a cyber cafe has its risks but you could put your best foot forward nevertheless.