No porn intended: Why the DoT order banning 857 sites is barely legal

On March 24 of this year, the country welcomed the Supreme Court’s declaration of the draconian Section 66A of the IT Act as unconstitutional. Lost in the ensuing celebration was the fact that Sections 69A and 79 (3) (b) of the Act were also challenged, albeit unsuccessfully..These are two provisions that are extremely relevant following the Department of Telecom’s recent ban on pornographic sites..In an order directing Indian ISPs to take down 857 sites with pornographic content, the DoT has invoked its powers under Section 79 (3) (b) read with Article 19(2) of the Constitution..And as arbitrary as a blanket ban on all pornographic sites sans any notice sounds, the fact is that it might not be bad in law. Furthermore, it is the government’s interpretation of the Shreya Singhal judgment that may just be responsible..Firstly, let’s take a look at Section 79 (3) (b), which says that,.(3) The provisions of sub-section (1) shall not apply if—.(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner..On a bare reading of the provision, it beggars belief as to how it would apply to the given scenario. But, perhaps in a (innocent?) misinterpretation of Shreya Singhal, the government has construed 79 (3) (b) to confer on it the power to block websites..In Shreya Singhal, the Supreme Court had held that,.“Section 79 is valid subject to Section 79(3) (b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.”.In effect, the intermediary has been forced into a corner, with no option but to comply with the court’s, or in this case, the government’s order. Unless of course, they want to run the risk of facing a stint in jail..Lawyers and IT law experts are sceptical about the government’s strategy of invoking Section 79 (3) (b) as opposed to Section 69A..Advocate Apar Gupta told Bar & Bench that,.“The [blocking power under] Section 69A doesn’t contain the power of blocking for decency or morality. It has very specific classes under which content can be blocked, but it doesn’t appear that pornography comes under one of the classes. This is the proper provision to issue blocking orders and this is why it is curious that Section 79(3) (b) has been resorted to in the blocking order..Section 79(3) (b) contains the condition which specifies how an intermediary should react on receiving a notice. This is distinct from the conferment of any power on the government to issue orders to block a website. The order appears to be barely legal.”.While dismissing the challenge to 79 (3) (b), the court also held,.“Being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. We have seen how under Section 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary.”.While drawing parallels between the two provisions, the bench failed to clearly express whether the same safeguards under 69A would apply to 79 (3) (b). This means that the government was not required to give its reasons in writing for the disablement of access to the aforementioned sites. Of course, why it was all done in such an opaque manner is anybody’s guess..Apart from lamenting the lack of transparency in the matter, Chinmayi Arun, Research Director at the Centre for Communication Governance, NLU Delhi raised a number of relevant questions. Speaking to Bar & Bench, she said,.“I wonder if anyone checked to make sure whether all 857 links definitely contain illegal content? Another question is who makes a list of these links? .Last year, the Minister for Communications and Information Technology had asked the Internet and Mobile Association of India (IAMAI) to make a list of porn sites to be blocked comprehensively across ISPs. If they have come up with the list, it raises serious questions about the propriety of asking an industry body to come up with a list of content to be blocked. The origins of this list would therefore be worth looking into.”.The point remains though, the DoT order may just end up being on the right side of the law. Barely..Image taken from here.