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Background and legal aspects of the ban on internet pornography

The DoT order says that content hosted on porn sites relate to morality and decency and is, therefore, subject to “reasonable restrictions” on the Fundamental Right to freedom of speech and expression.

Written by Utkarsh Anand | New Delhi |
Updated: August 6, 2015 12:03:21 pm
porn, Porn sites, porn ban, Porn sites blocked, porn sites banned, pornhub, youporn, porntube, porn news, india news The government has asked ISPs to ban 857 websites. (Source: Reuters)

The government’s July 31 order directing Internet Service Providers (ISPs) to block 857 porn sites came after Additional Solicitor General Pinky Anand conveyed to the Department of Electronics and Information Technology (DeitY) the Supreme Court’s observation that “appropriate steps” were needed against pornographic sites, especially those featuring child pornography. The DeitY asked the Department of Telecommunications (DoT) to notify the ISPs under the Information Technology Act to disable the sites.

The IT Act

To order the blocking of these sites, the DoT relied on Section 79(3)(b) of the IT Act.

Section 79 lays down conditions under which ISPs or intermediaries are exempt from culpability for offensive content uploaded by a third party. It obligates the intermediaries to exercise “due diligence”, and to act on the orders of the court or the government and its agencies to qualify for immunity.

WATCH: Porn Sites Ban In India (Legally Speaking)

Section 79(3)(b) states that intermediaries would not be entitled to exemption from liability if they failed to “expeditiously” remove or disable access to objectionable material “upon receiving actual knowledge, or on being notified by the government or its agency that any information… residing in or connected to a computer resource controlled by the intermediary” was being used to commit unlawful acts.

In addition, under the Information Technology (Intermediary Guidelines) Rules, 2011, intermediaries must inform “users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that is… grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable…”, etc., and “harm[s] minors in any way”.

‘Reasonable Restriction’

The DoT order says that content hosted on porn sites relate to morality and decency and is, therefore, subject to “reasonable restrictions” on the Fundamental Right to freedom of speech and expression. While the individual is guaranteed this freedom under Article 19(1)(a) of the Constitution, Article 19(2) allows the state to impose “reasonable restrictions” on its exercise “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

On March 24, 2015, while quashing the much abused Section 66A of the IT Act — which allowed police to arrest people for social media posts that were construed as being “offensive” or “menacing” — the Supreme Court had also dealt with Section 79(3)(b), and read it down.

The court held that intermediaries cannot be called upon to exercise their discretion in blocking content, and that they must act only either on court orders or when the government asks them to. “Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79,” the Supreme Court had ruled.

This judgment did not, however, make it mandatory for the executive to evaluate the necessity of issuing the restriction order, or to state the reasons for blocking a web site. The DoT order is amenable to judicial review, and ISPs, the blocked websites, or even an individual Internet user can approach a High Court or the Supreme Court if they feel that the order is not covered by the restrictions mentioned under Article 19(2).

Case in Supreme Court

ASG Anand’s letter to the DeitY cited the top court’s observations in a PIL filed in 2013 by Indore lawyer Kamlesh Vaswani. The PIL has demanded an action plan and an exclusive law to contain the proliferation of pornographic sites on the Internet, especially in view of their adverse impact on children.

The petition said sexual content accessed by children today was graphic, violent, brutal, deviant and destructive, posed a threat to public order, and put society in danger, and pointed to the lack of laws to regulate such web sites. The petition referred to the December 16, 2012 case in which a 23-year-old woman was brutally assaulted and gangraped by six men on a bus in Delhi, leading to her death.

The petition also challenged the validity of certain provisions of the IT Act, 2000, on the grounds that they were violative of the fundamental rights to equality and to life.

In April 2013, the Supreme Court issued notices to the Ministries of Information Technology, Information and Broadcasting, and Home Affairs.

In August 2014, the government expressed difficulty in blocking porn sites, saying many of these servers were located outside India. It told the court that whenever a porn site was blocked, another surfaced — and the magnitude of the task could be gauged from the fact that there were about 40 million such sites on the Internet, along with links to other sites.

The government also told the court that a Cyber Regulation Advisory Committee had been constituted under the IT Act, and the availability of porn on the Internet would be deliberated upon. The court had remarked that ways would have to be found to ensure that technological advancements did not always defeat the law, and had asked this Committee to also take note of Vaswani’s PIL.

No effective hearing has happened in the case on the two dates this year. The DeitY has been asked to file an affidavit clarifying its stand on blocking porn sites. On July 8, the court wondered whether there could be a judicial order restricting such sites.

A bench led by Chief Justice H L Dattu said: “Let us keep in mind the possible contention of a person who could ask what crime have I committed by browsing adult web sites in private within the four walls of my house. Could he not argue about his right to freedom to do something within the four walls of his house without violating any law?”

At the same time, the bench asked Anand to take appropriate steps to ensure that the law was not violated.

The next hearing is on August 10. The government’s order to block the 857 porn sites should be seen in the context of its attempt to assure the court that a regulatory regime was being contemplated, and that some steps had been taken.

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