Search engines Google, Yahoo and Microsoft (Bing) have been directed (pdf) by the Supreme Court of India to not show any pre-natal sex determination test ads in their search results. In an interim order, the court said that these search engines should not advertise or sponsor any advertisements that would violate Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT Act) (Hat tip – Amlan Mohanty)
It also directed Google, Yahoo and Microsoft to withdraw any existing sex determination ads on their respective services and also include this order on their policy page as well as its service terms and conditions page. The next hearing is scheduled on February 11, 2015, when the court intends to take up the matters of completely blocking items that have been suggested by the Indian government and the URL & IP address are provided by Google, Yahoo or Microsoft.
In the order, Solicitor general Ranjit Kumar said the Indian government can stop showing any kind of thing that relates to sex selection and eventual abortion, if the URL and the IP addresses are given along with other information by these three companies. Alternatively, these companies themselves can block these ads since they have access “to their respective mathematical algorithms all the time”.
The court had earlier sought the assistance of Kumar and from the department of information and technology (DeitY) last month after reprimanding the Indian government for its helplessness in restraining online ads regarding pre-natal tests on search engines like Google, Yahoo and Microsoft.
This was in response to a PIL filed by one Sabu Mathew George in 2008, who had alleged that Google, Yahoo and Microsoft were promoting sex determination techniques and products through advertising and links on their search engines, which is an offence under the PCPNDT Act.
In response, the central government had said that while pre-natal sex determination is an offence in India, it is not so in other countries and the information on these websites are aimed at a wider audience. Further, blocking such sites is not feasible or desirable since most of them are hosted outside the country and some of them actually provide good content for medical education.
Google India, Yahoo India and Microsoft India had also contended in court that they were not in violation of the law since they merely provide a “corridor ” for content. However, the Supreme court had said that an effort has to be made by these parties so that nothing contrary to the Indian laws are advertised or shown on these websites.
Nikhil adds: in our opinion, Google India, Yahoo India and Microsoft India are essentially playing the role of an intermediary, allowing advertisers to use their technology platform to advertise. As such, these companies don’t have knowledge of the type of advertisement being published, and it is, frankly, impossible for them to do so given the billions of ads that are distributed through their platform. They are essentially intermediaries, and as such, unless intimated by a complainant, should not be liable for this content. They aren’t publishers, they’re platforms. Intermediary liability should not apply, under section 79 of the IT Act. In the same way, publishers should not be liable for comments on their sites, and ISPs and telecom operators should not be liable for crimes committed using their networks, even if they might benefit from that usage, because they don’t determine the type of usage. Safe harbor for intermediaries allows for the protection of technology platforms. Lest we forget, this is what Avnish Bajaj was jailed for: because third party merchant sold a porn CD on Baazee.com. A presentation on that case is here.