The dirty secret about website blocking in India... #WhatTheBlock

Highlights

  • Background: IFF continues to receive a number of reports of website blockings through its online portal. We have written to the DOT and MEITY multiple times informing of the persistent blockings but there continue to be no reasoning provided nor action being taken for such blockings.
  • Where is the legal basis: We write to the ISPs highlighting the illegality without Court or Central Government orders and violation of Unified License conditions.

This week we sent a legal demand to ISPs to review and unblock websites. Yes, that includes your favourite service providers like Airtel, BSNL, Jio and Vodafone. In our legal notice, we make clear the current legal framework that permits website blocking as we explained in our previous post (here and here). To recap, there are three ways:

  1. Through court orders;
  2. Through directions of the Central Government subject to certain conditions under Section 69A of the Information Technology Act, 2000;
  3. Through directions by the Department of Telecommunications to Internet Service Providers under Clause 7.12 of the Unified Access License in the nature of public interest or under Clause 38.1, to prevent transmission of obscene content.

We continue to emphasize on the opaqueness of this process. Very rarely are there any reasons for blocking of a website made available to the originator of the information or the general public who may want to access the website. Apart from a standard notice which is sometimes not even uniformly displayed across ISPs, there is little clarity both in terms of notice being provided or even the legal basis for the same, so we call them out on this in our legal demand.

Yes, let's talk about porn

In our previous post we set out at length that there exist only three legal orders for blocking porn in India (read more here). We noted in it that, "The third court order which is publicly accessible was passed by the  Uttarakhand High Court in a suo moto writ petition (WP PIL No.  158/2018). In this case, the Uttarakhand High Court had directed  blocking of pornographic websites mentioned in a notification by DoT  dated 31.07.2015. However, DoT has clarified that out of the 857  websites mentioned in the notification, ISPs were only required to block  those websites which hosted child pornography. Further, the final order  dated 07.12.2018 in this writ petition disposed the matter after  referring to an existing case in the Supreme Court, Kamlesh Vaswani v.  Union of India (WP Civil No. 177/2013)." Since, this case was disposed there is little to no legal basis to sustain any interim directons which may have been passed by the Uttrakhand High Court to block porn websites in India (read more here).

We highlight the number of website blockings reports, of especially popular websites such as IndiaKanoon, Reddit, SoundCloud, Telegram and various pornographic websites such as PornHub that IFF receives through an online reporting tool at www.savetheinternet.in.

We explain in two points how there is no justification for such arbitrary website blocking that cannot be done pro-actively by ISPs.

  1. Court ordered blocking: The persisting wide-spread ban on pornographic websites seemingly finds legality in a direction by DOT dated 31.07.2015 which used the list of 857 pornographic websites produced by the Petitioner in Kamlesh Vaswani v. Union of India (W.P. Civil No. 177 of 2013). We have pointed out that the DOT subsequently issued a clarification to ISPs stating that only those websites that hosted child abuse content were required to be blocked. The Uttarakhand High Court initially ordered blocking of websites mentioned in the DOT notification dated 31.07.2015 but during the hearing, the DOT clarified that it had issued another notification requiring ISPs to only block websites featuring child porn. The Uttarakhand High Court made note of this clarification and disposed the case.
  2. Violation of license conditions: The amended Unified License terms made on the recommendations of the TRAI on net neutrality prohibit any discriminatory treatment of content and blocking has been very clearly included in sub-clause iv(b) with the exception of court or government orders, which once again is not in effect.

The sole exception

IFF has a clear position against child porn and any abuse related imagery where we hold a clear view that pro-active blocking by ISPs is a permissible action but needs to be done with post-decisional transparency and regular checks to ensure that this exception does not become the rule. We inform that even as per the 2011 Report of the UN Special Rapporteur in para 18, notes that child abuse content is a clear exception to the justification of blocking measures subject to the effective safeguards in place to prevent abuse of such restriction.Therefore, with no Central Government/Court ordered blocks, there is no reason for these blocks.

Under who's authority?

As you can clearly see, there is no legal justification for such arbitrary and unwarranted blocking and no clarity in case there are Central Government orders. We write to the ISPs with three requests:

  1. Conduct an internal legal review: We believe many websites have been blocked in India by ISPs historically without any clear legal basis as on date. There may have been historical reasons which are invalid today. For instance any interim directions in a case before the Uttrakhand High Court which was disposed off. Hence, the interim orders for blocking do not hold good any longer.
  2. Provide legal reasoning: To provide the legal basis under which the continued blocking of pornographic websites such as PornHub and the recent instances of IndianKanoon, Reddit, SoundCloud, the Telegram domain, and Playboy.
  3. Provide clarity: If there are Central Government orders restricting access to certain websites, we ask that they made available to the public in order to provide users with clear reasons for such blocking to ensure it does not portray that arbitrary blocking by ISPs are conducted.

We have continuously emphasised on how website blocking is one of the clearest forms of net neutrality violations if done by ISPs pro-actively and without a clear direction of Court or by Government Authorities as per law. We will keep working tirelessly on the need for the enforcement of net neutrality through adequate mechanism to pro-actively monitors, reports and provide users with a well established redressal process to address violations. Until then, we will continue to engage with the Government and ISPs institutions to ensure there is clarity and legality in website blockings.

Links to important documents and posts

  • Notice to ISPs on website blocking (link)
  • Why is porn being blocked in India (link)

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