On July 31, the department of telecommunications issued an order to all internet service providers (ISP) to block 857 websites. The order called for the disablement of those websites under the provision of section 79(3)(b) of the Information Technology Act, 2000, as the content hosted on them related to morality, decency as given in Article 19(2) of the Constitution.

According to government sources, all those sites pertained to child pornography and hence were illegal under section 67B of the IT Act.

The move agitated many netizens in India. But some action around the pornographic content was expected as just three weeks before the order, the additional solicitor-general (ASG) had assured a Supreme Court Bench headed by the chief justice that action would be taken on the child pornographic content within the next four weeks.

The ASG was deposing in a public interest petition filed by Kamal Vaswani in April 2013.

Vaswani had requested the court to direct the Centre ‘to treat watching of porn videos and sharing as non-bailable and cognizable offence’ besides asking for declaring many sections of the IT Act ultra vires including sections 66, 67 and 79 that would be relevant to his primary demand for banning online pornography.

Wrong moves The chief justice brilliantly refused the petitioner’s plea to pass any directions to the government to ban the websites in the last round of hearings in July this year. Instead, he gave the Centre four weeks to come up with its response on how to deal with online pornography.

In the latest hearing on August 10, the ASG assured the bench that the government had no desire to play the role of moral police and be present in every household to check what people are watching despite the clear intent to stop and ban child pornography.

The government’s order to ban the 857 websites has been criticised in many quarters but what emerged more surprising was its next move when it tried to direct the ISPs to remove the block on sites out of those 857 that, according to its judgments, didn’t have pornographic content.

This is quite ridiculous and the Internet Service Providers’ Association of India has rightly refused to comply; it will keep the ban intact unless clearly directed by the government.

This brings to the fore the issue of how complicated the situation was and the absence of any one solution.

The government could not have kept the identified websites running before answering the apex court again and the issue raised technical and societal concerns from many angles.

Pornography is the most popular activity in cyberspace, and it is impossible to weed it out altogether.

Wise facilitation As Justice Rohinton Nariman pointed out during the hearing of the same case in August last year, it is impractical to block 2 crore websites as 2 crore more websites will pop up; they are hydra-headed.

Moreover, enough avenues are available today in the form of virtual private networks and proxy sites for such content to be available despite the ban. Further, selective content ban in a particular website is not possible.

The ISPs cannot be expected to weed out such content because then they directly become involved in the content’s transmission and reception, and liable under section 79.

So the effort has to be a collective call and the government would do well to rope in the support of content providers and ISPs after working out a commonly acceptable yardstick.

Also, in a society as diverse as in this country, with dynamic levels of maturity in accepting morality standards, it would be prudent to arrive at a decision factoring a harmony of law, technology and ethics. Clearly, the government should not add to the confusion; it should be a wise facilitator.

However, it will also be pertinent to dwell on the evolving attitude of the government on issues related to cyberspace.

The present government has been seen to be responsive to netizens’ interests: the move towards supporting multi-stakeholder internet governance last month was a positive step.

The scale of the Digital India initiative and citizens’ participation proposed therein cannot happen without an open internet policy.

Also of relevance is a case of defamation in the Patiala courts in which the Centre, in the Mirik Health Foods Pvt Ltd case in May this year, refused to block a few websites despite a trial court order.

Instead, it appealed to the higher court and got the impugned order set aside and became a revisionist in the case. So, blanket allegations against the government are undesirable. Helping the government involve all stakeholders would be more effective.

Some suggestions such as the ‘opt-in’ services existing in the UK could be better harmonised in the Indian context with special arrangements with ISPs.

Need for maturity At the same time it is also worthwhile to touch upon where the current laws stand on pornography. Sections 67, 67A of the IT Act deal with pornography in general, while section 67B deals with child pornography.

While in section 67 the nature of the offence is publishing or transmitting obscenity in electronic form, in section 67A it is specific and relates to publishing and transmitting sexually explicit acts or conduct.

However, neither provision applies to books, pamphlets, paper, writing, drawing, painting, representation or figure in the electronic form.

Section 67B refers to five instances under which online child pornography is criminalised including facilitating the abuse of children online.

The issue has clearly shown that technology and its reach will defy the best intentions; it cannot be foolproof and despite high levels of deterrent punishment, it might still be found wanting.

As the ASG has rightly said, the practical solution is to strive for more maturity. The question is where to draw the line and resort to strict enforcement.

The writer is a cyberspace policy consultant

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