Author – Jhanvi Rajput
Introduction
The case of Avnish Bajaj v. State (2005) is one of the earliest and most significant judicial pronouncements in the realm of cyber law in India. It highlighted the complexities involved in attributing criminal liability to intermediaries in the online space. The case involved the CEO of Bazee.com (an online marketplace similar to eBay) who was prosecuted for the sale of an obscene MMS clip by a third-party user on the platform. This case analysis explores the legal issues, reasoning, and implications of the decision.
Background of the Case
In 2004, a pornographic MMS clip of two school students from Delhi was circulated widely via mobile phones and uploaded for sale on Bazee.com. The clip was listed by a user and was available for purchase. When the incident came to light, it caused widespread outrage, leading the Delhi Police to register an FIR under Sections 292 and 294 of the Indian Penal Code (IPC), Section 67 of the Information Technology Act, 2000 (IT Act), and Section 85 of the same Act.
Avnish Bajaj, the then CEO of Bazee.com, was arrested on the grounds that he failed to prevent the publication of obscene content on his platform. Although Bazee.com was not directly involved in creating or uploading the content, its role as an intermediary came under intense legal scrutiny.
III. Legal Issues
Whether an intermediary like Bazee.com could be held criminally liable for the actions of a third-party user under the IT Act.
Whether Avnish Bajaj, as CEO, could be personally held responsible under Section 85 of the IT Act.
Applicability of IPC Sections 292 and 294 in conjunction with the IT Act.
IV. Arguments by the Prosecution
The prosecution contended that the availability of obscene material for sale on Bazee.com, which was being facilitated through its platform, amounted to publication and circulation of obscene content. They argued that under Section 67 of the IT Act, any transmission of obscene content via electronic means was an offense. Furthermore, Section 85 of the Act made directors and managers liable if the offense was committed with their consent or due to their negligence.
V. Arguments by the Defense
The defense argued that Bazee.com was merely an intermediary, providing a platform for user-generated listings. The CEO could not be expected to pre-screen every transaction or listing. They highlighted that Avnish Bajaj had no personal involvement in the uploading or sale of the MMS clip. The defense invoked Section 79 of the IT Act, which grants intermediaries conditional immunity from liability, provided they observe due diligence and are not complicit in the offense.
VI. Court’s Reasoning and Decision
The Delhi High Court had to interpret the liability of intermediaries under the IT Act, which was still relatively new at the time. It acknowledged that the internet had posed novel legal challenges, particularly regarding criminal culpability in decentralized platforms.
The court distinguished between the liability under the IPC and the IT Act. For the IPC offenses (Sections 292 and 294), the court found insufficient evidence to proceed against Avnish Bajaj personally, as the provisions did not explicitly extend to corporate or intermediary roles.
However, regarding the IT Act, the court took a stricter view. It ruled that while Bazee.com was an intermediary, the protection under Section 79 was not absolute. The court held that the company was under a duty to exercise due diligence. Since the sale of the obscene clip occurred through its website, and the listing had not been promptly removed, the company could be considered to have failed in this duty. Consequently, under Section 85, Avnish Bajaj, as the managing director, could be made liable if it was shown that the offense occurred with his consent, connivance, or due to his negligence.
However, the court clarified that this did not mean automatic criminal liability. The matter required a detailed trial to determine the extent of knowledge and involvement, if any. Hence, while charges under the IPC were dropped, the court allowed proceedings under the IT Act to continue.
VII. Legal Significance
This case became a touchstone in understanding intermediary liability in India. It demonstrated that while intermediaries are not inherently liable for third-party content, they cannot claim blanket immunity if they fail to act with due diligence. The decision urged online platforms to adopt robust content moderation and rapid response mechanisms.
Further, the case prompted a closer look at the structure of the IT Act itself. It exposed gaps in how liability was assigned and triggered amendments in the 2008 revision of the Act. Notably, the amended Section 79 now more clearly outlines the duties of intermediaries and their protections.
VIII. Implications on Cyber Law
Strengthened Due Diligence Obligations: Platforms were now expected to have clear policies and technological measures to detect and respond to objectionable content.
Clarified Role of CEOs and Directors: The case drew attention to the potential personal liability of company executives, making it essential for them to ensure legal compliance internally.
Catalyst for Legal Reform: The issues raised by the case pushed lawmakers to clarify intermediary obligations in the IT (Amendment) Act, 2008.
Public Awareness: It also made users and service providers more aware of the consequences of digital content circulation.
IX. Critical Commentary
While the court’s decision to differentiate between the liabilities under the IPC and the IT Act was legally sound, it also opened up concerns about the scope of executive liability in digital businesses. Critics argue that imposing criminal proceedings on CEOs without clear proof of negligence or connivance may deter innovation and growth in the tech industry.
On the other hand, proponents highlight that this strict scrutiny ensures that digital platforms do not become safe havens for illegal activities. Given the harm that such content can cause—especially in cases involving minors or non-consensual pornography—it becomes necessary to demand higher accountability.
X. Conclusion
The Avnish Bajaj v. State case marked a seminal moment in Indian cyber jurisprudence. It illustrated the growing pains of adapting traditional legal principles to the internet age. While the decision did not conclusively convict Avnish Bajaj, it set in motion legal, corporate, and social changes that reshaped online accountability in India. Today, its legacy persists in the way intermediaries operate, with greater sensitivity toward content moderation and legal compliance. As the digital ecosystem evolves, the principles laid down in this case continue to guide courts and lawmakers in striking a balance between innovation and responsibility.
FAQs
Q1:What triggered the case?
An obscene MMS clip was listed for sale as a CD on Bazee.com.
Q2: Who was accused?
Avnish Bajaj, Managing Director of Bazee.com.
Q3: What were the main charges?
Sections 292 IPC, 67 & 85 IT Act, and 120B IPC.
Q4: What was the nature of the content?
Pornographic MMS involving minors.
Q5: How long was the listing live?
Approximately two days before removal.
Q6: Was the clip hosted by Bazee.com?
No, only the listing was on the platform.
Q7: Did Bajaj have direct involvement?
No evidence showed his personal knowledge or intent.
Q8: What was the prosecution’s argument?
That the MD was responsible under Section 85 IT Act.
Q9: What did the defence claim?
Bajaj had no mens rea and the platform acted as an intermediary.
Q10: What did the court hold on Section 67 IT Act?
Insufficient basis to prosecute Bajaj personally under Section 67.
Q11: What did the court rule on Section 292 IPC?
Charge against Bajaj quashed due to lack of direct involvement.
Q12: Was the company still liable?
Yes, Bazee.com as a legal entity could still be prosecuted.
Q13: What principle was affirmed?
No vicarious criminal liability without statutory backing and mens rea.
Q14: What was the impact on cyber law?
Case clarified intermediary liability and influenced future IT Act amendments.
Q15: Is the MD personally liable for user content?
Not unless there is direct evidence of knowledge or participation.
