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There’s something unusual and unexpected about the order from the Department of Telecommunications to ISPs, for blocking access to pornography in India. View the order here. Some observations:

1. Firstly, it has been issued under Section 79(3)(b), and not under Section 69A of the IT Act. Both provisions were contested in a series of petitions in the Supreme Court of India, along with Section 66A, which was struck down as unconstitutional, while Section 79(3)(b) was watered down. The difference between the two?

Section 69A of the IT Act is meant for secret blocking. This allows the government to block access to websites, and it has certain processes in place to ensure that blocks aren’t arbitrary, ad hoc or unconstitutional, and there is a review process as well. While we have our doubts about whether such processes will be followed, and believe there needs to be transparency and a process for getting blocks removed, the Supreme Court said that there appear to be enough checks and balances in place to prevent misuse. The process is detailed at the end of this post.

Section 79 (3)(b), as Apar Gupta correctly pointed out to me, is actually meant to be a safe harbor provision, and not one that can or should be used for blocking. The idea behind this provision is that if a website gets a notice for taking down certain content, it has to take it down, or be held liable for the content. The intermediary can choose not to take down the content, but as we have argued earlier, the judgement of whether to take down content or not is being delegated here to the intermediary, when it should be looked into by the courts. The intermediary will not look to protect freedom of speech, they’ll look to protect their business from potential liability, and will invariably take down content.

A blocking order has been issued using a provision that is meant to be a safe harbor provision is unexpected, and we wonder if the idea here is to prevent a review process, which might be needed under Section 69A.

2. ISPs could have said that it is not possible for them to disable the URLs since the URLs are not created by them, nor do they belong to them. The order explicitly states that the ISPs are directed to disable the URLs, not disable access to them. The ISPs can only disable access to the URLs. However, they, as explained above, are likely to be crawl when asked to bend.

3. Does it meet the clear and present danger test? Watching porn isn’t illegal. In the order for blocking porn, the Department of Telecom asks for the disablement of the URLs “as the content hosted on these websites relate to morality, decency as given in Article 19(2) of the Constitution of India.” Article 19 (2) puts restrictions on free speech as follows:

“Article 19. Protection of certain rights regarding freedom of speech, etc.—(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

On Section 79(3)(b), the Supreme Court, in its judgment (read), notes:

Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79.

There’s a very interesting segment related to how restrictions under Article 19(2) need to be viewed:

“To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.

“But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

I fail to understand what clear and present danger imposed by porn sites, or, for that matter, nonvegjokes.com (Number 854 on that list).

4. It’s hilarious that the BJP wants porn sites blocked on grounds of obscenity and morality, given that its own MLA’s were caught on camera, watching porn in state legislatures: In Karnataka and Gujarat.

5. Using grounds of morality and decency is a slippery slope: as we have explained before, who decides what is immoral or obscene? What is art for one person is obscenity for another. More in: The Tricky Thing About Fighting Blocking Of Porn In India and It looks like India’s going to get a web filter.

Our take (summary)

1. An attempt appears to have been made to block porn in a manner that the block need not be reviewed (by using Section 79(3)(b) instead of Section 69A).
2. A block on the grounds of decency and morality is a slippery slope, and might lead to the blocking of more content in the future, on similar grounds. Governments use extreme cases to create rules.
3. In our opinion, the block doesn’t meet the clear and present danger requirements set out by the Supreme Court of India in its judgment on Section 79(3)(b). This instance also suggests that the Supreme Court’s judgment regarding 79(3)(b) didn’t do enough to prevent misuse of Section 79(3)(b) by the government, as is shown here.

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Process for using Section 69 of the IT Act

The central government has to have a designated officer “not below the rank of a Joint Secretary” for the purpose of issuing direction for blocking under Section 69. Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the Designated officer. The complaint shall be examined by a Committee of Government Personnel who first have to make all reasonable efforts to identify the originator or intermediary (hosting companies/ISPs/telecom operators/Social Media sites/publications) who has hosted the information. The intermediary will be asked to appear before the committee within 48 hours. The committee will consider whether the request is covered by 69A, and if it is, the Designated Officer has to submit the recommendation to the Secretary, Department of IT, who can approve such requests, which will be sent to the intermediary to block.

In cases of emergency, the blocking may take place without any hearing, and the Designated Officer shall bring the interim direction to the committee.
A Review Committee shall meet at least once in two months and record its findings as to whether directions issued are in accordance with Section 69A(1).