<div><div><em>Ultimately, it boils down to defining what is unacceptable, and then aggressively attacking it. Perhaps the solution is to set up a body that actively looks for and flags such conten, <strong>Abraham C. Mathews</strong> writes</em></div><div> </div></div><div>If you ever thought that policy-making was a minefield in India, check with Kamlesh Vaswani, lawyer and anti-porn crusader. By one account, this is how the porn ban in early August played out: Vaswani, who has been arguing in the Supreme Court for porn sites to be blocked, gave a list of 857 sites that he considered objectionable to Additional Solicitor General Pinky Anand, who represented the Indian government at the hearing. Anand sent the list ‘for appropriate action’ to the Department of Telecommunications. The Department forwarded it to Internet Service Providers (ISPs) such as BSNL and Vodafone for disablement under Section 79(3) of the Information Technology Act. (The order, now leaked, ends with “The contents of this letter may be kindly kept confidential.”) </div><div> </div><div>Section 79(3) merely takes away the immunity enjoyed by so-called intermediaries. So if a crime that involves any of these 857 sites is committed, and the victim sues the ISP, it becomes automatically liable. </div><div> </div><div>Naturally, that is too much of a risk to take. So off went the 857, and before they realised it, thousands Indians were deprived of their porn fix, albeit temporarily (two days later, the Government wrote to the ISPs saying they could unblock any site not containing child porn). </div><div> </div><div>Perhaps the only way to block the sites was surreptitiously, because the moment one so much as looks in that direction, one is attacked by a flock of questions, with the Constitution for wings and civil liberties for feathers. Sample these: does the Government get to tell you what you should or shouldn’t watch? Can it realistically control the Internet in the age of proxy servers? Where to draw the line between what is permissible and what is not? On whom can one pin the blame? </div><div> </div><div>The simple answer to the question of whether the government can decide what we should watch is no. In two cases seeking to ban pornography, in 2009 and 2010, the high courts of Bombay and Madras reiterated that as a “guardian of free speech, a Constitutional court should not embark on an exercise to direct State authorities to monitor websites”. But both high courts also noted that if there is a specific complaint about a violation, the government shall act on it. </div><div> </div><div>Pranesh Prakash, Policy Director at the Centre for Internet and Security (CIS), a Bangalore-based Internet advocacy group, is a fan of that approach. “We have laws in our country that make certain kinds of porn illegal,” he says, referring to child pornography. Even seeking that, or any other non-consensual porn, is an offence. </div><div> </div><div>“What the government needs to do is aggressively pursue criminal prosecution against violators, rather than blocking all pornographic sites,” opines Prakash. </div><div> </div><div><strong>Good Porn Bad Porn</strong></div><div>Certainly, some porn is created consensually and distributed willingly. It falls squarely under the definition of free speech, and is thus protected, particularly if it is viewed in private. But how does one differentiate between porn that is consensual and willingly uploaded, and porn that is not (for example, a hotel secretly filming a couple)? After all, the actor is anonymous to the viewer, and may not even be aware of the breach of his or her privacy. Sadly, the law has no answer. </div><div> </div><div>But is the solution then to ban porn in toto? Once you ban something saying its presence is deleterious to society, that argument quickly becomes the bedrock on which anything that ever annoyed anybody is banned. The principle of ‘art for art’s sake’ has been acknowledged time and again. The question has often been raised whether it also includes ‘dirt for dirt’s sake’. Abhorrent as it may sound, the Constitution guarantees it, as long as it does not conflict with morality, decency (implied, in public) or public order. </div><div> </div><div>Vaswani’s petition argues that pornography affects “peace of mind, health and wellness, happiness and human potential”. But even if one buys that argument, can the Government legislate to keep people healthy, wealthy and wise? What about severe misogyny in mainstream films? Does it fuel sexual aggression? Would violence in films be the next to go (and one could argue that it must)? </div><div> </div><div>So we are limited to fixing responsibility for violations when they are reported or otherwise found. The uploader and creator of the pornographic content are obvious culprits. But can the website where the information was posted be sued? If you are the owner, can you be personally held liable? What about search engines which enable people to access such content? What is the role of ISPs? </div><div> </div><div>Prakash says it is unfair to target ISPs, since they can’t really do much except block. (Remember, the basic argument for net neutrality was that service providers should be ‘hollow pipes’ and no more — they should have no qualitative say with regard to the data they transmit.) </div><div> </div><div>However, he says, search engines are in a position to block certain types of porn, such as that involving children. He gives the example of a CIS experiment which attempted to place an ad for sex selection kits (advertising related to abortion based on the sex of the foetus is banned in India). The attempt was thwarted by search engines. Also, searches for sex selection kits yielded no results from India, he says. He suggests that search engines be similarly deployed in the war against undesirable porn. </div><div> </div><div>Websites and their senior officials have been considered liable before. Perhaps the most notable case was that of eBay subsidiary Bazee.com. In 2004, an IIT student posted a sex video of two minors for auction on the portal. During the day that it remained available, at least eight people bought the clip. Not only was the uploader arrested, but so was Avnish Bajaj, the portal’s Managing Director at the time. The Delhi High Court refused to intervene, saying the Information Technology Act “recognises the deemed criminal liability of the directors even when the company is not arraigned as an accused”. It added that the company could also be held liable. More recently, police registered an FIR against Snapdeal CEO Kunal Bahl after a complaint that prescription drugs were being illegally sold through the website. </div><div> </div><div>Ultimately, it boils down to defining what is unacceptable, and then aggressively attacking it. Perhaps the solution is to set up a body that actively looks for and flags such content. For example, the Internet Watch Foundation in the UK, which describes itself as an independent self-regulatory body set up by the UK Internet industry, actively seeks out and reports pornography involving children (it discourages the use of the phrase ‘child porn’, preferring ‘child sexual abuse images’). </div><div> </div><div>In the US, the law itself recognises the industry. In late July, a Manhattan Appeals Court in New York tossed out 15-year-old rules that sought to restrict the adult industry in the city as unconstitutional. </div><div> </div><div>One could well ask whether Indian attempts to uproot pornography are jingoistic. In 1964, the Supreme Court held Ranjit Udeshi, a bookseller in Bombay (as it was then called), guilty of selling D.H. Lawrence’s book, Lady Chatterley’s Lover (first published in 1928). Udeshi probably did not even know the contents of the book. </div><div> </div><div>In the past 50-odd years, however, Indian courts have been more steadfast in their defence of speech and expression, and the right to receive ideas. That is just as well. After all, you don’t close down schools to stop student suicides. For example, in a case relating to the late M.F. Husain, the court ruled in favour of his painting, saying that “the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort.”</div><div> </div><div><div>(This story was published in BW | Businessworld Issue Dated 07-09-2015)</div></div>
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