Find ways to curb Child Pornography: SC

Today in Court Room no. 4 of the Supreme Court the porn ban petition filed by Kamlesh Vaswani was taken up by the bench of Justices Dipak Mishra and Shiva Kirti Singh.

Mr. Vijay Panjwani, advocate for Mr. Vaswani stated that it has been two years since the petition was filed and the Court issued notices, yet some respondents have not filed their replies.

Ms. Pinky Anand, the Additional Solicitor General of India was representing the Union of India. Ms. Anand submitted that the Court should confine itself to the issues of child pornography as anything beyond that will involve issues of privacy and other rights (in May 2014 the Government had submitted to the Court that a blanket ban on pornography will violate Articles 19 and 21 of the Constitution).

However, Justice Mishra in response to that stated that ‘what is the privacy argument? I do not understand what is the privacy issue?’ no one wants to be seen doing this and that if there is any issue the Court can interpret it and deal with it during the arguments.

Subsequently, Justice Shiva Kirti Singh stated that ‘the State should not interfere in every matter’ but only in cases where a crime has been committed.

Agreeing with Justice Singh, Ms. Anand stated that the Centre is concerned about child pornography. She stated that various agencies including Interpol, CBI, the Departments of Electronics and Information Technology (DeitY) and Telecom (DoT) of the Ministry of Communications and Information Technology and various Internet Service Providers (ISPs) are working together to come up with mechanisms to deal with child pornography. She explained one of ways to address this. She stated that the CBI will procure a list of child pornography sites from Interpol (more details available here) and pass it to DeitY (more details available here). DeitY will provide a list to DoT which will direct the ISPs to block all these sites. She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

Mr. Panjwani interjected stating that the ISPs keep raising the argument of free speech but an illegal act cannot be protected under the garb of free speech. He raised the recent JNU example and stated that the Finance Minister stated yesterday in the Parliament that such speech cannot be protected under Right to Freedom of Expression and that his argument is similar to that and pornography cannot be protected under the Right to Freedom of Expression.

Justice Singh asked Mr. Panjwani, how he will define pornography? He subsequently added that it is difficult to define pornography and that someone can find even a picture of Monalisa pornographic.

Mr. Panjwani stated that there is a difference between obscenity and pornography and that there are videos of humans and animals engaging in sexual activities and that it is a cruelty to animals.

Ms. Anand reiterated her point of focusing on child pornography as it may be difficult to find mechanisms for other issues. However, Justice Mishra stated that petitioner’s case is not just about child pornography but all kinds of pornography. He further added that what is not permissible under the India law should not be allowed and the mechanisms to prevent those things can be evolved. He subsequently asked the Government if they were making a distinction between child pornography and adult pornography and to find out from the Ministry if porn can be blocked.

Ms. Anand reiterated the Union’s stand that it is not possible to block porn (the Government has made similar arguments in the past; see here and here). However, Justice Mishra responded that they can block it and that there are means to do it. He added that other countries have not accepted defeat on this issue on the basis of technology and there are ways to deal with it. He added that in a different affidavit filed by the Solicitor General for an authority, it has been stated that this can be blocked. He stated that misogyny, sadism and voyeurism should be prevented online.

Ms. Anand stated that we need to enquire whether the State should in the first place enter this discussion and a personal decision of what a person should watch or not. Whether the State should decide what the moral code of the society is? She said all these are subjective issues and what is pornography and what is not is also subjective.

Justice Mishra said that the there I no subjectivity in it. He stated that obscenity is recognised and punishable by the law. Pornography may or may not be obscene in some contexts, but in videos it will be obscene. Obscenity is linked to misogynism, perversion, sadism, voyeurism. These are the acts depicted in pornography which have a direct nexus with obscenity as crime punishable under Section 292 of the Indian Penal Code. He said there is no subjectivity where it affects the moral code.

Justice Singh added that we should examine what is allowed in public spaces and private spaces. Ms. Anand added to this stating the State cannot interfere with what people consume in the privacy of their homes.

Senior advocate Mahalakshmi Pavani Rao, who was representing the Supreme Court Women Lawyers Association stated that porn is spreading like a moral cancer. She stated that in school bus driver and conductors have porn on their phones and force children to watch it and molest and sodomise them.

Ms. Anand agreed that child pornography is a serious issues and needs to be looked into. However, it may be difficult to look into other issues.

Justice Mishra stated that everyone can start by looking at issues of child pornography first. He said that freedom of speech and expression under Article 19(1)(a) is not absolute and liberty is not absolute. He said that innocent children cannot be subjected to such painful situations. He added that a nation cannot afford to experiment with its children in the name of liberty and these moral assaults may bring physical disasters with them.

Justice Singh commented that there is a fine line between what is pornography and what is permissible and the Government should try coming up with something to address this. The Bench also asked the ASG to explore whether a ban on consuming pornography in public places can be explored?

The Bench directed the petitioners to provide suggestions to the Government to come up with schemes to tackle child pornography and also allowed the Union to take suggestions from the National Commission of Women. The matter has now been listed for 28th March 2016.

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Government’s Response to Fundamental Questions Regarding the Internet in India

The Ministry of Communication and Information Technology today provided answers to a number of questions, which were raised by the parliamentarians in the Rajya Sabha. We have extracted a set of 6 questions below, that deal with a host of issues including number of blocks under Section 69A of the Information Technology Act, the current status of the Central Monitoring System, Data Privacy law and Net Neutrality.

Question 1: (Emergency Blocking under IT Act) 

(a) Whether Government has issued any emergency blocking orders under section 69 (A) of the Information Technology Act, 2000 pursuant to Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009; and

(b) If so, the total number of emergency blocking orders issued from 1st January, 2014 till date and the details and specifications thereof?

Answer:

(a) and (b) Government has issued directions for blocking of URLs on emergency basis depending on the nature of contents and consequences of spreading such contents as reported by Law Enforcement and Security Agencies, following the procedure as outlined in Rule 9 of the Information Technology (procedure and Safeguards for blocking for access of Information by Public) Rules.

Emergency blocking orders issued to block a total number of 216 URLs from 1st January, 2014 till date. The information hosted on these URLs were anti-national, provocative, communal hatred, which could lead to serious law and order problem in the Country. The URLs were blocked based on the requests of Law Enforcement Agencies including by orders passed by competent courts, in the interest of Sovereignty and Integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the Commission of any cognizable offence relating to above as per the provisions of Section 69A of Information Technology Act, 2000.

Question 2: (Blocking under IT Act)

(a) Whether Government has blocked/disabled access to certain websites and /or Uniform Resource Locators(URLs) during the current year and the last year and if so , the specifications thereof; 

(b) The total number of requests received by the designated officer and the total number of orders issued for blocking of websites and/or content under section 69(A) of the Information Technology Act, 2000 from 1st January, 2014 till date; and

(c) The total number of blocking orders revoked by the Department of Electronics and Information Technology, or any other Government agency from 1st January, 2014 till date?

Answer:

(a) and (b) Government has invoked Section 69A of Information Technology Act, 2000 to block/disable access to certain websites/URLs. Section 69A of the Information Technology Act 2000 empowers Government to block any information generated, transmitted, received, stored or hosted in any Computer Resource in the interest of Sovereignty and Integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the Commission of any cognizable offence relating to above.

A total of 255 URLs were blocked in 2014 and no URLs has been blocked in 2015 (till 31 March 2015) under Section 69A through the Committee constituted under the rules therein. Further, a total of 2091 URLs and 143 URLs were blocked in order to comply with the Directions of the Competent Courts of India in 2014 and 2015 (till 31 March 2015) respectively.

The Committee constituted as per the rules of Section 69A of the Information Technology Act, 2000 had recommended not to block 19 URLs in the meetings held between 1st January 2014 to till date.

Besides, Indian Computer Emergency Response Team (CERT-In) gets requests for blocking of objectionable content from individuals and organisations, which merely forwards those requests to the concerned websites for appropriate action.

(c) Two orders were issued to revoke the 251 blocked URLs from 1st January 2014 till date.

Question 3: (Central Monitoring System)

(a) The status of implementation of the Central Monitoring System (CMS) set up by Government for lawful interception and monitoring of communications;

(b) The details and salient features of the system, including the nodal agency implementing CMS;

(c) The total expenditure approved and incurred by Government for setting up of CMS;

(d) Whether it is operational, if so, in which parts of the country; and

(e) If not, the time-frame within which setting up and operationalization of CMS across the country is expected to be completed?

Answer:

(a) and (b) Sir, the responsibility for execution of Central Monitoring Systems (CMS) has been entrusted with Centre for Development of Telematics (C-DOT). Most of Research & Development work has been completed. The Centralized Data Centre has been installed. Interception Store & Forward Servers (ISF) at the premises of Telecom Service Providers have been installed. Civil & electrical related environment works are at final stage of completion for the Regional Monitoring Centres. Installation activities at Regional Monitoring Centres have been initiated. Testing work has been initiated at Centralized Data Centre.

The envisaged salient features of CMS are as follows:

(i) Direct Electronic Provisioning of target number by a Government agency without any manual intervention from Telecom Service Providers (TSPs) on a secured network, thus enhancing the secrecy level and quick provisioning of target.

(ii) Central and regional database which will help Central and State level Law Enforcement Agencies in Interception and Monitoring.

(iii) Analysis of Call Data Records (CDR) to help in establishing linkage between anti-social/anti-national elements.

(iv) Research and Development (R&D) in related fields for continuous up gradation of the CMS.

(c) The CMS project has been approved by Cabinet Committee on Security with Government funding of Rs. 400.00 Crores. The equipment worth Rs. 255 Crores has been purchased and installed against which an amount of Rs. 149 Crores has been paid.

(d) & (e) Presently project is in roll out phase and not operational. The commissioning of CMS Delhi has been planned in phased manner. The Delhi and Karnataka Licensed Service Areas have been planned for initial roll out. 

Question 4: (Multi-Stakeholder model of IG)

(a) The Government’s view on the future on Internet Governance, given its opposition to the widely held multi-stakeholder model propounded at NETmundial;

(b) The Government’s rationale behind not conforming to the Multi-Stakeholder model for Internet Governance put forward at the NETmundial; and

(c) How Government supposes that the Multi-Stakeholder model impedes the principles of being multilateral, transparent, democratic, and representative, with the participation of Governments, private sector, civil society and international organizations?

Answer:

(a), (b) and (c) Government will take a view on the future of Internet Governance taking into account all issues which affect Internet’s growth and India’s interest in the matter.

Question 5: (Data Privacy and IPR Laws)

(a) The steps taken by Government to engage the India-US Working Group on Information and Communication Technologies (WG-ICT) on Digital India initiative thus far;

(b) Whether Government has the requisite measures for data privacy and intellectual property rights of local and foreign manufacturers in place to ensure an attractive IoT Market in India; and

(c) If so, the details thereof?

Answer:

(a) The meeting of the Working Group on Information & Communication Technologies (ICT) was held during 14th -15th January 2015 in Washington DC, USA. Amongst other issues, the two sides discussed cooperation framework under the Digital India Programme. Further a Joint Declaration of Intent for cooperation in the field of Information & Communications Technology and Electronics has been signed between the two countries on 20th January, 2015. One of the objectives under the aforesaid Joint Declaration of Intent is to explore the opportunities for collaboration in the course of implementation of India’s ambitious Digital India programme.

(b) and (c) The Information Technology Act, 2000 has adequate provisions for data protection and data privacy in digital form. Sections 43, 43A and 72A of the Information Technology Act, 2000 provides a legal framework for privacy and security of data in digital form. Further, Indian laws relating to Intellectual Property Right have been suitably amended and are TRIPS compliant

Question 6: (Net Neutrality and OTT Services)

(a) Whether there have been reports of private operators attempting to charge consumers premium rates for the use of services provided by Over-The-Top players;

(b) If so, the details thereof;

(c) The steps being taken by the Ministry to protect consumers from similar attempts in future; and

(d) the steps being taken by the Ministry to safeguard investor sentiment in the telecom sector?

Answer:

(a) & (b) Telecom Regulatory Authority of India has reported that M/s. Bharti Airtel Limited reported that effective from 23.12.2014, all internet/data packs or plans (through which consumers can avail discounted rate) will exclude Voice Over Internet Protocol (both incoming and outgoing) and standard data rates will be applicable for VoIP. Subsequently, M/s. Bharti Airtel limited reported withdrawal of the same with effect from 26.12.2014.

(c) Does not arise in view of (a) & (b).

(d) Telecom licenses are governed by license agreements which are entered by Department of Telecom (licensor) with telecom service providers (licensees). At present 100% Foreign Direct Investment (FDI) is permitted in the telecom services sector, with 49% through automatic route and beyond 49% through Government route.

Both the domestic as well as Foreign Investors have to follow the laws of the land and are treated at par. As far as FDI is concerned, the investment is protected through Bilateral Investment Promotion and Protection Agreements signed by India with 72 countries.

—-

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

Symposium on Human Rights and the Internet in India

Symposium on Human Rights & the Internet in India

discussing

Surveillance & Databases: Experiences & Privacy Concerns

&

Unpacking the Intermediary Liability Debate in India

5:00 p.m., 17th January 2015

Organised by

Global Network of Internet and Society Research Centers

UNESCO Chair on Freedom of Communication and Information at the University of Hamburg

Alexander von Humboldt Institute for Internet and Society (HIIG)

Hans Bredow Institute, University of Hamburg

&

Centre for Communication Governance at National Law University, Delhi

at

Conference Room – II | India International Centre | Max Muller Marg | Lodhi Estate | New Delhi

On January 17, 2015 the Center for Communication Governance at National Law University, Delhi in collaboration with the UNESCO Chair on Freedom of Communication and Information at the University of Hamburg host a pubic symposium on “Human Rights and Internet in India” as a Network of Centers (NoC) regional event. The event convenes a diverse group of collaborators working on issues of Privacy, Surveillance, Data Protection, Freedom of Expression and Intermediary Liability in India, the surrounding region, and internationally.

The concept note for the event can be found here.

Agenda | Saturday, January 17 | Public Symposium

17:20 – 17:45 Welcome
Opening words
Prof. (Dr.) Ranbir Singh, Vice Chancellor, National Law University, Delhi
Prof. (Dr.) Wolfgang Schulz, Director, Alexander von Humboldt Institute for Internet & Society

17:45 – 19:00 Panel I: Surveillance & Databases: Experiences & Privacy
The panel will explore how surveillance in India might become more consistent with international human rights standards and Indian constitutional values. It will also discuss the consequences of ubiquitous database programs for citizens’ human rights. This will include comparative perspectives around similar problems and a discussion of privacy-compatible practices in other countries.

Panelists:
Dr. Usha Ramanathan, Independent Law Researcher

Mr. Bhairav Acharya, Lawyer, Supreme Court of India and Adviser Centre for Internet & Society, Bangalore

Mr. Saikat Datta, Editor (National Security), Hindustan Times

Professor KS Park, Former Commissioner, Korea Communications Standards Commission and Professor, Korea University Law School
 
19:00 – 20:15 Panel II: Unpacking the Intermediary Liability Debate in India
The panel will focus on the legal framework governing Internet platforms in India, especially with regard to online content and its implications for rights of the citizens. It has been argued that the current legal framework creates incentives for online intermediaries to take down content even when no substantive notice or legitimate reasons have been offered. The panel will consider the debate around intermediary liability in India in light of the ongoing litigation at the Supreme Court. It will reflect on the international experience with intermediary liability legislation and discuss how to ensure that laws support an innovative and competitive environment for intermediaries, while ensuring that they prioritize the preservation of their users’ human rights.
 
Panelists:
Dr. Joris van Hoboken, Fellow, Information Law Institute at NYU School of Law

Professor (Dr.) Wolfgang Schulz, Director, Alexander von Humboldt Institute for Internet & Society (HIIG)

Mr. Raman Jit Singh Chima, Lawyer

Chinmayi Arun and Sarvjeet Singh, Centre for Communication Governance at National Law University, Delhi 

20:15 onwards: Dinner