While issues such as right to privacy are being discussed, the bigger question is what does the government propose to achieve by directing the Internet Service Providers to disable these websites.
Pavan Duggal, senior advocate who is also an expert in cyber laws says that the government needs to make up its mind. In this interview with OneIndia, Duggal says that it is time the government decides whether it wants to ban pornography or look at manageable targets such as child pornography.
What are your views on the government action to disable these websites?
First things first, the government needs to make up its mind. Does it want to ban pornography or does it want to look at manageable targets such as child pornography.
Banning pornography is impossible. The US and China have tried and failed. The instead set their targets on more reachable targets such as child pornography and they have been successful. India needs to take a leaf out of those countries and focus first on banning child pornography.
What are your thoughts on the July 13 notification by the DoT?
This entire episode is unwarranted. The notification in question does not meet the requirements of the law. Notified on July 13, 2015 it directs all intermediaries and service providers to disable access to several websites under Section 79 (3)(b) of the Information Technology Act 2000.
First thing is that this notification is issued under Section 79(3) (b) postulates that a government or its agency can notify that information, data or communication link residing in or connected to a computer resource controlled by the ISP is being used to do an unlawful act. Then the ISP is duty bound to remove or disable access to the same.
It is a paramount requirement of law that the notification of the government must inform the ISP that this information data or communication link is being used to do an unlawful act. This notification is silent as to what the unlawful act being done by the website in question is.
Can decency and morality be a ground to issue a notification such as this?
Decency and morality are no grounds to give notifications under Section 79(3)(b) and hence the entire legal foundation of the said notification is suspect and could be challenged in a court of law.
The notification is silent about what is special about these 857 websites which have been disabled. The notification is silent as to what is the methodology that has been adopted for the purposes of identifying these websites.
A similar argument was made when savithabhabhi.com was blocked.
There is a bit of a difference here. Earlier there was savithabhabi.com and that was blocked. Now, the government has not gone in the direction of blocking but in the direction of disablement of access.
This is a paper tiger notification and would not be successful on ground reality as people are routinely using proxy servers for the purposes of accessing the said disabled websites.
Is the government trying to attain some laudable objective?
In effect this notification though it may have laudable and noble objectives, fails to achieve its desired results. The 857 websites in question are located outside the territorial boundaries where the Indian cyber laws are not applicable.
The government clearly needs to do more homework in identifying what the complete approach to its policy on pornography should be. In such cases what tends to happen is that you disable 857 and in the next few days, 80,000 will come up. The government needs a more rational and pragmatic approach to deal with the issue.
What are your thoughts on the argument regarding the right to privacy?
The other school of thought, right to privacy. It is a cardinal principle that every person has a fundamental right of life under Article 21 of the Constitution of India. The Supreme Court has interpreted this to include right to privacy. Right to access pornography within four corners of the walls is the right to privacy according to the Suprme Court of India.
Will the government decision to disable pornographic websites be challenged?
I distinctly believe if challenged they would succeed before the Supreme Court. The choice to access pornography or not is an individual choice.
The way the network is structured, there are so many indirect ways of accessing porn and hence this notification will fail. What India needs to bear in mind is that China with its Chinese Wall of the Internet has not been successful.