Specific targets and a more balanced, better nuanced approach would help in the fight against pornography
The Department of Telecommunications has issued a notification dated 31/7/2015 to all Internet service licensees. In the said notification, it has been stated that the DEITY has requested DOT to notify intermediaries (ISPs) for disablement of various URLs under the provisions of Section 79(3)(b) of the Information Technology Act, 2000 as the content posted on these websites relate to morality, decency as given in Article 19(2) of the Constitution. Thereafter, list of given 857 domain names has been given which have been directed to be disabled.
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This notification represents a new approach after the Shreya Singhal judgment delivered by the Hon’ble Supreme Court of India. Earlier, the Government of India used to direct the blocking of pornographic websites like in the case of SavitaBhabhi.com case. However, ever since Section 66A of the Information Technology Act, 2000 has been struck down as unconstitutional and being violative of the reasonable restrictions on the freedom of speech and expression under Article 19(2) of the Constitution, the approach of the Department has slightly changed.
The said notification/direction has been issued under the provisions of Section 79(3)(b) of the Information Technology Act, 2000. However, the said notification does not fulfill the mandatory requirements of Section 79(3)(b) of the Information Technology Act, 2000. Section 79 deals with the issue of exemption from liability in certain cases.
Section 79(3)(b) of the Information Technology Act, 2000 provides that on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary is expected to remove or disable access to that information without vitiating the evidence in any manner whatsoever.
The notification dated 31/07/15 does not notify that any information, data or communication link residing in or connect to a computer resource, controlled by the intermediary is being used to commit any unlawful act.
Questions
The said notification raises more questions than it answers. What is the basis for identifying the said 857 websites? Does this notification indicate the change of the official stand on the fight against pornography? Can the fight against pornography be ever successful, given the fact that a major content on the Internet is pornographic in nature?
The elements of decency and morality have been put in the notification primarily so that the said notification could be seen as reasonable restrictions within the meaning of Article 19(2) of the Constitution of India. However, the fact remains that the said notification does raise various challenges and issues.
At a time in a country where watching pornography is not an offence, approaching the problems and challenges raised by pornography in the manner as suggested by the notification dated 31/7/2015 raises more doubts in the minds of people. Further, given the intrinsic architecture of the Internet, it is possible to go ahead and bypass the disablement for access to the said websites using proxy servers.
In the past, it has been seen that any such initiatives of the disablement of access has only generated more curiosity amongst public minds and has acted as catalyst for increasing traffic to the said disabled websites. We need to categorically appreciate that majority of the said pornographic websites are located outside the territorial boundaries of India, where Indian law is not applicable. This is despite the fact that the Indian cyber law has provided for extra territorial jurisdiction.
Nuanced
India needs to adopt a far more well-balanced and nuanced approach towards pornography. Rather than taking the fight against pornography as a whole, it will much more pragmatic for India to target low hanging fruits and specifically target issues like child pornography.
Fighting child pornography and pedophiles in India would be a much more effective and manageable target. Further, it is the responsibility of the Government to ensure that the innocence of Indian children is retained and that the innocent children do not become victims of the devious designs of pedophiles.
The said notification represents an interesting development in the growth of cyber legal jurisprudence in India. Already the said notification has received sharp responses from various stakeholders. It will be interesting to see how the further development of jurisprudence on this issue evolves with the passage of time.
There is an age old saying that one should only bite so much as one can chew. The pornography content apple is a very big one, and governments have to be studiously careful of their options and resources, before biting on to the pornographic content apple.
The writer is an advocate, Supreme Court of India. He is an expert and authority on cyber law and mobile law.
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