India is presently facing the problem of pornography of giant proposition. However, we have no dedicated laws against pornography in India. Some provisions have been incorporated into the Information Technology Act, 2000 but they have proved inadequate so far. The problem of child pornography in India is even worst despite an Advisory by Home Ministry of India on Preventing and Combating Cyber Crime against Children in India (PDF) has been issued in this regard.
The child pornography in India is increasing and protecting children in cyberspace has become a daunting task. Recently Interpol helped India in tracking child porn surfers as tracing such cyber criminals requires techno legal expertise at multiple levels and various jurisdictions. The child pornography in India needs to be seriously addressed by Indian government as soon as possible.
Indian government blocked 39 Internet sites on ground of pornography in the past. Further, the Supreme Court has sought response from Central Government over blocking of porn websites in India. The Supreme Court of India is also hearing a public interest litigation to ask Indian government to formulate regulations and guidelines for effective investigation of cyber crimes in India. The Supreme Court of India is already hearing the Google’s Online Defamation Case. Recently, the Delhi High Court recommended setting up of a statutory regulatory body for regulating the electronic media. The summoning orders for CEO of Maxim Magazine for obscene morphed picture were also quashed by Delhi High Court in the past.
It is clear from these legal developments that cyber litigations against foreign websites would increase in India. Even Indian telecom companies are flouting Indian laws and norms. For instance, Indian Companies like Tata Teleservices Limited (TTL) and Airtel and Foreign Companies like Google are “Ridiculing” the IT Act, 2000 and Internet Intermediary Guidelines. In short, both domestic and international technology and telecom companies are violating the Internet intermediary liability in India and cyber law due diligence in India (PDF). The new Indian Companies Act, 2013 (PDF) would further raise the incidences of corporate criminal liability in India.
Meanwhile, Internet Service Providers (ISPs) of India on Monday told the Supreme Court that it is practically and technically impossible for them to block pornographic sites without orders from court and government and they cannot be made liable for the objectionable contents of the sites. However, this stand of Indian ISPs is not legally tenable in all circumstances and the same would be proved during the argument stage of the proceedings.
In its reply to a PIL requesting the apex court to pass an order to block websites with pornographic content in the country, the ISPs association submitted that there is need to define the term pornography as its boundaries are “amorphous”.
“It is neither legally nor technically nor practically possible for ISPs on their own to block pornographic sites unless a direction is received from a court of competent jurisdiction in accordance with law or from DoT (Department of Telecommunication),” it said, adding, “It is impossible for them to carry out pro-active monitoring of the content in absence of any mandate by the DoT.” This is a valid stand of Indian ISPs as pre screening of contents on the Internet is neither feasible nor possible.
Meanwhile, a bench headed by Justice BS Chauhan granted three weeks more time to DoT to file response as to how to block websites with pornographic content in the country, particularly those featuring child pornography.