Why reversal of govt order on porn sites is a farce

There seems to be some cheer as it is heard that the government has lifted the block over 857 pornographic websites. But the sigh of relief for freedom of speech may yet be premature.

It was reported that the letter from the Department of Telecommunications (DoT) on “lifting” the block to Department of Electronics and Information Technology (DeITY) was forwarded to all ISPs.

This letter reportedly reads, “The intermediaries are free not to disable any of the 857 URLs which do not have child pornography.” Prima facie, it looks hopeful, but this scenario actually seems to hold more threat for the constitutional rights of citizens than ever. There are two reasons to be wary of this “reversal” of the blocks: First, it does not actually direct ISPs to lift the block on the 857 URLs, merely stating that they are free to not block them.

At the time of writing this article, major Bengaluru ISP Atria Convergence Technologies is blocking these URLs. Second, and more importantly, this apparent “reversal” of block actually passes the burden of identifying and blocking “child pornography” to ISPs. This has resulted in a scenario where access to the fundamental right to freedom of expression of every citizen now lies at the mercy of profit-seeking private service providers.

Consider this scenario: Your ISP unblocks a URL from the list of 857 which in its judgment is not child pornography, or is not pornography at all. But in return, the government alleges that what the ISP has unblocked is, in fact, child pornography, and thereafter hauls the ISP to court. But no private business would like to run the risk of having to drag a court case for years against the government just to protect their consumers’ free speech rights!

Which is why barely any private business enterprise raised voice even against the notorious Section 66A of the IT Act, 2000 that was eventually declared unconstitutional by the Supreme Court earlier this year. This was thanks to the efforts of a common citizen – leading to the eponymous judgment in the Shreya Singhal case.

The logic is simple: “child pornography” as a term has not been defined by the parliament or the government. In such a scenario, vaguely worded government orders can only spark off a chilling effect—as an extra measure to remain within the good books of the government, ISPs are more likely to not unblock the 857 URLs rather than court the uncertainty of a law suit. This scenario will occur and is occurring, irrespective of whether a block order of this nature is legal or not.
 The government, meanwhile, in its refusal to deal directly with law and public outrage, can escape responsibility. The only casualties of this private censorial arrangement are the fundamental rights of the common citizen.

It was with precisely this grasp of vaguely worded blocking orders that the Shreya Singhal judgment also clarified the law concerning circumstances in which a government-ordered website block would be illegal. Only when a block order under Section 69 of the IT Act contains written reasons for the block and a chance of fair hearing to both the originator and the intermediary, can it be deemed legal.

The block order contained no such specific reasons, neither was any hearing given. Which would imply that the order was originally passed in violation of the Supreme Court’s authoritative interpretation of the fundamental right to freedom of speech and expression granted under the constitution.

Even after the DoT forwarded ISPs, the letter saying that ISPs are free to unblock URLs which do not contain child pornography, the government still remains in violation of the Supreme Court’s pronouncement in Shreya Singhal. This is because that judgment also read down Section 79(3) of the IT Act. Section 79 is an exemption provision providing a safe harbour to intermediaries on the internet, including ISPs, concerning content made available through them.

Exemption provision

This exemption provision, however, only kicks in when the intermediary fulfils certain conditions. One of these conditions is provided under Section 79(3). It lays down that the intermediary must disable access to a website or material upon receiving “actual knowledge” of its existence. What exactly is meant by “actual knowledge”?

Since the term is not defined under the Information Technology Act or its allied Rules, before Shreya Singhal, it could essentially mean what anyone in power wanted it to mean. The argument made before the Supreme Court accordingly was that the intermediary is called upon to exercise its own judgment to disable information. This, it was argued, was arbitrary and in violation of the rule of law. Consequently, it was in violation of Article 14 of the Constitution, which guarantees the Right to Equality to all persons.

The Supreme Court in its judgment, recognised these threats to fundamental rights of citizens. It read down the provision so that the term “actual knowledge” was deemed to mean the knowledge received by an intermediary of a court order being passed asking it to disable access to certain material.

The government notification by the DoT asking for block of “child pornography” given this interpretation, falls incredibly short of the court directives. This is because an order which asks ISPs to block a term as broad and vague as “child pornography” cannot constitute “actual knowledge” received by the ISP.

Additionally, as mentioned earlier, the court held that such a blocking order can only be passed after giving appropriate hearing to the originator of the content, as well as the intermediary. If not, such an order will stand in violation of the constitution. But does the present government care about the constitution? The current farce unfolding would say no.

(The writer, a legal researcher, is a consultant with Alternative Law Forum, Bengaluru)