Avnish Bajaj v State (NCT of Delhi)

Facts

• In November 2004, a sexually explicit MMS clip of two Delhi school students went viral
• An unknown user listed the clip for sale on Baazee.com (an auction/marketplace platform, later acquired by eBay)
• Avnish Bajaj, the CEO of Baazee.com, was arrested under S.67 of the IT Act 2000 (publishing obscene material in electronic form) and IPC S.292
• Baazee.com removed the listing within hours of becoming aware of it
• The platform had no editorial control over listings; it operated as a marketplace intermediary
• Bajaj was charged personally as the "person in charge" of the company

Issues

1. Whether the CEO/director of an intermediary platform is personally liable for user-uploaded obscene content
2. Whether an intermediary that provides a marketplace (not content) is a "publisher" under S.67 IT Act
3. What level of knowledge is required to fix liability on an intermediary

Held

• The intermediary (Baazee.com) did not create, select, or modify the content; it merely provided a platform
• There was no evidence that Avnish Bajaj or the company had prior knowledge of the specific listing
• The platform acted promptly upon notice to take down the content
• Criminal proceedings under S.67 IT Act quashed against Bajaj
• The court distinguished between a platform (intermediary) and a publisher (content creator)

Ratio Decidendi

An intermediary providing a platform for user-generated content is not a publisher of that content. Criminal liability under S.67 requires knowledge or active participation in publishing obscene material. Where the intermediary has no actual knowledge and removes content upon notification, it cannot be held liable. The officer in charge cannot be vicariously liable absent personal knowledge or consent.