Ban on pornography temporary, says government

The article was published in Business Standard on August 4, 2015. Pranesh Prakash has been quoted.

A year after conveying to the Supreme Court that a blanket ban on internet pornography was not possible, through the department of electronics and information technology, it has asked internet providers to disable 857 websites that carry adult content. A senior official from the department of telecommunications (DoT) said the ban was a temporary measure, till the final order is announced by the apex court on August 10.

The government is looking at setting up an ombudsman to oversee cyber content, which will have representatives from NGOs, child activists and the government. The DoT official said, “There has to be some kind of regulatory oversight away from the government intervention… An ombudsman might be set up for overseeing cyber related content issues.”

The genesis of the current notification lies in the public interest litigation (PIL) filed by advocate Vijay Panjwani in April 2013. The PIL has sought curbs on these websites on the internet, especially the ones showing child pornography. The senior DoT official conveyed that the blocking of 857 websites was in compliance with the SC directive asking for measures to block porn sites, particularly those dealing with child pornography.

The July 31 notification from DoT has advised internet service licensees to disable content on 857 websites, as the content "hosted on these websites relates to morality and decency as given in Article 19(2) of the Constitution of India". The government had stated last year that it was not technologically feasible to monitor such contents as it would require physical intervention, which would impact data speeds.

In December 2014, the government had approached telecom providers and internet service providers to help identify such sites, but the service providers did not cooperate. Consequently, the government has gone ahead and identified 857 websites. However, the government has not given any detail as what was the criterion to identify such websites.

Pranesh Prakash, policy director at the Centre for Internet and Society, says DoT has used the provision of 79 (3) (b) of the IT Act, which is a convoluted Section that the intermediatory (ISPs) may lose protection from liability. This section is very convulated, the provisions for website blocking does not allow blocking porn. In section 69 (a), the entire procedure is that it allows an opportunity for the blocked website to be heard. “I can't comment on the reasons that the government for doing this. I know the order says the ban relates to morality, decency," adds Prakash.

Last year, the government took a position that said blocking these websites was not feasible, given that these sites are hosted outside India. In case of any ban, these sites can be relocated within hours to bypass it. Pavan Duggal, an advocate who specialises in cyber laws, has called the disablement 'cosmetic,' as it will not have the requisite deterrent effect. Duggal says: "This is a lost battle from the word go, as it is impossible to disable access permanently."

Watching such content in India is currently not an offence and, thus, the government is invoking “morality and decency” while seeking a curb on a fundamental right — Freedom of Speech & Expression. Under Article 19 (2) of the Constitution, the state can curb a fundamental right in order to maintain public order, decency or morality.

TO BAN OR NOT TO BAN

2013

• Advocate Vijay Panjwani & Kamlesh Vaswani file PIL seeking curbs on internet pornography

Aug 2014

• Supreme Court bench under Chief Justice R M Lodha agreed with the PIL and sought strict laws to curb online content

8 Jul 2015

• Chief Justice of India H L Dattu upholds personal liberty and refuses to pass an interim order. Asks government to take a stand on the issue
• CJI, heading a three-judge Bench, asks government to a detailed affidavit within four weeks

Jul 31

• DoT sends notification seeking ban on 857 websites
• Currently, there are no laws banning internet pornography in India, other than those related to children
• Government’s stated position has been that it is difficult to curb online content