While the Centre had directed internet service providers (ISPs) to cut access to specific porn sites, a legal expert points out that the IT Act does not specifically provide for banning such sites and the action is ‘barely legal.’
Last Friday, the Department of Telecommunications issued a notice to ISPs directing them to disable access to 857 pornographic websites. The order was passed under section 79(3)(b) of the Information Technology Act.
It implies that the sites have been deemed to violate “morality [and] decency” provisions under Article 19(2) of the Constitution.
The government has not made a public statement confirming the ban. The notice does not specify any rationale behind the inclusion of specific websites on the list. Running across 17 pages, it includes a number of sites that are not overtly pornographic but host some adult content such as viral video site 9gag.tv, comedy sites collegehumor.com and nonvegjokes.com and BitTorrent-based filesharing websites, h33t.to and kickass.to.
According to Delhi-based advocate Apar Gupta, who was part of the successful legal challenge of Section 66A of the IT Act, the order stands on the “questionable legality”.
While the IT Act does give the government the power to block websites, the relevant Section 69A has very specific categories under which websites can be blocked, and pornography is not one of them.
“It is peculiar that the government has not acted under the specific power provided by law,” he felt. It has instead used 79(3)(b) that does not contain the power for taking down content, but only says how an intermediary should react on receiving such a notice.
“The order appears to be barely legal,” according to Gupta. This provision provides ‘safe harbour’ to intermediaries who are directed to take down content. It provides immunity to online service providers who comply with takedown notices.
‘Violation of Article 21’The government’s action appears to fly in the face of Supreme Court Justice H.L Dattu’s recent comments questioning the legality of a ban on pornography.
“Somebody may come to the court and say look I am above 18 and how can you stop me from watching it within the four walls of my room. It is a violation of Article 21,” observed Dattu, while declining to pass an order blocking pornographic websites.