Liability of Cyber Cafe Owner if a Customer downloads any Obscene Material

        In the context of cyber cafes in particular, if a customer downloads any obscene material for his personal viewing on the terminal assigned to him and this fact is known to the owner of the cyber cafe, it would constitute an offence and the owner of the cyber cafe would be liable under sec. 292 of the !PC read with sec. 67 of the IT Act Provided however, if it is established that this act was without the knowledge of the owner of the cyber cafe, it could be difficult for the prosecution to sustain its plea under sec. 292 of the IPC and sec. 67 of the IT Act. However the owner may not be completely exonerated from liability and it is possible that he may be held responsible for abetting the offence (if not for its commission) in terms of facilitating the circulation and distribution of the obscene material.

The law relating to the liability of cyber cafe owners under these provisions of the IPC and the IT Act, according to LEKHESH DHOLAKIA, is not very well settled and, therefore, open to subjective interpretation. To mitigate liability and to avoid possible criminal prosecution, the cyber cafe owners could perhaps make an attempt to take protection under section 79 of the IT Act, which absolves 'intermediaries', who only provide access to content but do not provide content itself, by extending the argument of intermediaries to cyber cafes (although not tested in courts in India).

The grounds of defence could also be made stronger by setting up a mechanism (hardware or software) whereby the customers are prevented from accessing any obscene websites and disclaimers are displayed prominently informing customers that obscenity is an offence which is punishable with imprisonment and that despite the warning, if customers still view such websites, they will be personally responsible and not the owner of the cyber cafe.

The punishment for an offence under section 67 of the IT Act is on first conviction with imprisonment (simple or rigorous) for a term which may extend to five years, and with fine which may extend to ten lakh rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to seven years, and also with fine which may extend to ten lakh rupees.

Courtesy:- Legal Point Foundation