Highlights
- Background: In response to IFF’s RTI query, MeitY has revealed that blocking of pornographic websites in India is the result of three court orders. Two of these court orders were passed by an Additional Chief Metropolitan Magistrate in Mumbai and the third order was passed by the Uttarakhand High Court.
- No pro-active blocking of porn by ISPs: We can reasonably infer from MeitY’s response that ISPs have not been directed by the government to proactively block porn websites, and they should not be doing so in the absence of a specific court order. Hence, legally there is little or no basis for proactive blocking.
The mystery behind the Porn Ban
In India, viewing sexually explicit material in private spaces is not illegal. Then why are porn websites being blocked? Many of our supporters have pinged us about this issue, so we got down to first diagnosing why this is happening before coming up with solutions, if any, that this may require.
First, let’s start with the basics. In India, there are three ways to block a website. First, a website may be blocked pursuant to a court order. Second, a website can be blocked pursuant to directions of the Central Government under Section 69A of the IT Act. This is usually done by the Ministry of Electronics and Information Technology (MeitY) and the Department of Telecommunication (DoT). However, the Central Government cannot directly block websites for merely hosting pornographic content because obscenity or morality is not a ground for blocking websites under Section 69A of the IT Act (remember the controversy surrounding blocking of Savita Bhabi? Read more about it here). Finally, the DoT can also issue specific directions to Internet Service Providers (ISPs) under the Unified Access License to block websites in public interest (Clause 7.12) or to prevent transmission of obscene content (Clause 38.1).
To get to the bottom of this issue, we filed RTIs with both MeitY and DoT. Our RTI filed with DoT was transferred to MeitY, and the response from MeitY revealed that porn websites have been blocked in India pursuant to three court orders passed from 2016 to 2018.
Non-availability of court orders
Unfortunately, out of the three court orders cited by MeitY, only one order is publicly accessible and we have filed a first appeal with MeitY for a copy of the other two orders. Two of the three court orders were passed by the Additional Chief Metropolitan Magistrate of the Esplanade Court in Mumbai in 2016 and 2017. While we could not access copies of these two orders, the information available on the E-Courts website suggests that 500 websites were blocked in a single day based on a complaint by the cyber police department without providing any hearing to the owners of these websites.
(Screenshot from the E-Court website showing that the order passed by the Additional Chief Metropolitan Magistrate from Mumbai has not been uploaded by the court.)
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).
Interestingly, the RTI reply side-steps two other cases, Kamlesh Vaswani v. Union of India and In Re: Prajwala (SMW Crl No. 3/2015) which may have led to blocking of websites that feature child porn or videos of sexual violence. However, to the best of our knowledge, these cases have not led to any directions for blocking of pornography websites more generally.
ISPs should not block porn pro-actively
The acronym "ISP" expands to Internet Service Providers, not the Internet Service Police. The legal position is clear and they should desist from proactive filtering and blocking practices.
Moreover, the information received by us gives rise to a reasonable inference that the Government is not issuing directions to block porn unless it is child pornography. To us, this means that there are no existing directions for pro-active blocking of obscene content by ISPs, and they should not be doing so without a specific court orders directing them to block individual URLs.
Finally, we recognize the concerning psychological impact of porn production and consumption but we do believe that when viewed privately, it falls within an individual’s right to free speech and privacy. This certainly does not include pornography which has minors present in it, or is created in the absence of consent. To make and view pornography belonging to both these classes is not only a crime, but a deep moral stain that results in long lasting physical and mental harm to the participants who are exploited for its production.
We acknowledge that the ethics of mainstream porn production, particularly the portrayal of women and other minorities, merit study and examination. There have been notable attempts by Point of View, Centre for Internet and Society and Centre for Communication Governance to promote a better understanding of online pornography through conferences and reports, and we hope there is greater conversation on the issue. At present, we maintain that pornography production requires greater diversity and strict enforcement to ensure absence of trafficking and labour protection. These are issues beyond the scope of our expertise and we look for leadership from feminist and sex workers’ rights organisations who are best suited to take the lead on this issue. We will listen and learn. At the same time, IFF will do what it does best, which is fight for internet freedom and the choice of individual internet users in India. This includes the private consumption of content that is deemed obscene under antiquated, colonial laws which should not find space in modern, progressive India.