Recently, I had raised an objection about a comment posted by MCX of India limited on the Discussion forum of MyGov.in regarding Bitcoin regulation. The Government had asked for public opinion on the forum which was expected to be used by the Committee formed for the purpose to arrive at a decision.
Obviously there were different stake holders with different vested interests. Some wanted Bitcoins to be legalized and some did not. The undersigned was one who held that Bitcoins is detrimental to the interests of the country and needs to be banned.
(Details are available in a series of articles at present ending with this article on naavi.org: Fight Against Corruption now has a new Slogan: Say No to Bitcoins).
Multi Commodity Exchange of India (MCX) is a licensed Commodity Exchange that allows trading of derivatives related to different commodities including Gold and Silver as well as Foreign Exchange under the regulations formed by SEBI and RBI. It is like BSE and NSE and is a quasi regulator of commodity derivatives.
In the event Bitcoin or any other Crypto Currency is recognized by India as a commodity, it would be naturally a “Commodity or a Derivative” which would come under the trading list of MCX. Hence MCX is a direct stake holder of the Government decision to legalize Bitcoins or otherwise.
Just as RBI or SEBI itself was not expected to participate in the forum discussions and give its views since they were the decision makers themselves, MCX was also considered as part of the regulator and not part of the public.
However, some executive who did not understand the nuances of propriety posted an opinion using the official logo of MCX stating that MCX recommends legalization of Bitcoins. This was posted on the forum a few hours before the end of May 31 when the collection of opinion was to end.
The undersigned raised an objection and called it as an attempt of an “Insider” in “Fixing” the decision of the committee and demanded action. Since MCX is a Board managed company and the opinion expressed was a policy decision, it should have been taken only under the directions of the Board. Also since MCX is a listed company itself, major Policy decisions that are considered “Price Sensitive” need to be notified to the BSE/NSE before being released to the public.
What MCX did was therefore a failure of Corporate Governance and fit for penal action from SEBI.
When the objection was raised by the undersigned, the Board naturally moved in and perhaps wanted to take its own corrective action. The first thought that came to their mind was “Removing the Comment” which was perhaps not authorized. Perhaps most managers would come to the same conclusion. They would have therefore contacted My Gov forum administrator and requested for removal of the content. MyGOv.in admin obliged by removing the content.
However this raises one issue of “Electronic Evidence” being tampered with. MyGov.in in this context is an “Intermediary” and when a notice of objectionable content is given to them by a suitable authority, under Section 79 of ITA 2000/8 they could remove the content. But this was a forum where the persons posting the comments were not authorized to remove the content once posted and hence it was expected that content once posted was an “Evidence” that could be acted upon by others who could view the content and be influenced by it.
According to Section 79 rules, it is necessary that content removed needs to be preserved for evidentiary purpose for atleast 90 days ass “Provisional Evidence” . If however he becomes aware that actually there is a dispute related to the content and it is “Actual Evidence” then he needs to preserve it for a reasonable longer time.
In the current incident, anticipating the removal of content, CEAC had already captured the evidence as it existed on May 31 2017 and also captured the forum content on June 1, 2017 showing clearly the absence of the original content or more appropriately, the “Tampered Page” .
Now the My Gov.in administrator can be accused of allowing of tampering of the electronic evidence when it was required to be maintained under law. (Section 65 of ITA 2000/8).
The correct procedure for removal of content was one of the following two methods.
- A rejoinder could have been posted along with the original content indicating prominently that the content has been reportedly been posted without the authority of MCX (which is an offence under say Trade Mark Act, Impersonation under Section 66C/66D of ITA 2000/8 etc) and the management has disclaimed the opinion made there in and should be ignored. Then the viewers would see both the original content and the correction. (This method was suggested by Naavi way back in December 2000 in the context of dalistan.org website in our article How To control Rogue Sites)
- The administrator of MyGov.in could have masked the earlier message with his note that the content has been masked because it had been reportedly been posted without authority of the organization in whose name it was posted.
If therefore BSE or NSE now wants to take action as mandated by the SEBI regulations on MCX for violating the listing guidelines, they will have to contend with a situation that the offending evidence is no longer available on the web and has been tampered with by none other than MyGov.in administrator. He can plead ignorance and escape criminal prosecution but the evidence is lost at his end.
However, CEAC is maintaining the evidence and has also posted it on www.naavi.org . The article posted in naavi.org itself can be used as an evidence with Section 65B certification of the naavi.org webpage.
This article is being published to explain the Compliance requirements under Section 65 of ITA 2000/8 by public discussion forum owners.
It also explains the context in which Section 65 B certificates can be of use in public interest litigations as well as specific litigation involving tamperable electronic documents. (Provided one is alert to capture the before and after instances of the electronic documents through a trusted third party like CEAC).
Other aspects of Section 65B certification on who has to give such certification and how are discussed elsewhere.