Opinion Proxy war

Lawyer Kamlesh Vaswani’s petition calling for a blanket ban on pornography on the internet and criminalising the viewership of porn claimed that nothing could “more efficiently destroy a person, fizzle their mind, evaporate their future, eliminate their potential or destroy society like pornography”. When it decided to hear the public interest litigation, the Supreme Court waded into a complex issue that has social, moral and legal dimensions, not least because of the distinction between the consumption of porn, which is not a crime in many countries, including India (only its production and distribution are), and child pornography, whose possession is also a crime and on which there is a much broader international consensus. The ongoing fracas over 857 porn websites being blocked because of a directive by the Department of Electronics and Information Technology (Deity) reflects this tension.

As the chief justice of India observed while declining to order an interim ban, adult Indians are capable of deciding whether to watch porn in the privacy of their homes, and preventing them from doing so would contravene Article 21 of the Constitution. Yet the court also reprimanded the government for not blocking the websites. As a result, last week, Deity told internet service providers to block access to the sites. But after the ensuing outcry, the telecom ministry appears to have allowed ISPs to revoke the ban on sites that do not host child pornography. This would put the onus of determining which websites carried illegal content on the intermediary, and ISPs have refused to comply.

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There is a real risk that a blanket ban would amount to another form of online censorship that could include, for instance, medical websites and photos of nude sculptures. Then, as even officials from the telecom ministry admit, without a ban also on virtual private networks and proxy servers — which would be difficult to implement, if not technically impossible — many internet users will be able to circumvent such national restrictions, rendering the ban ineffective. Insofar as the SC’s observations nudge the government into enforcing its own legislation against child porn, they are welcome. The creation, transmission and possession of child porn is illegal under the Information Technology (Amendment) Act. India is also a signatory to the Optional Protocol to the Convention on the Rights of the Child on child porn, which calls for cooperation between governments and the internet industry. India should collaborate with multi-stakeholder international coalitions that maintain registries of offensive content and content providers, while equipping law enforcement agencies to track and report such sites. This would be more effective, rather than resorting, once again, to the blunt instrument of a blanket ban.