Reportedly in yet another order, the Department of Telecom (DoT) has ordered a few ISPs to block 39 websites. The list has not been disclosed; however mostly consists of file sharing websites- especially ones which allegedly facilitate sharing of pornographic content. The reasons for blocking have not been specified, keeping in trend with DoT’s previous orders lacking in transparency. The order merely says, “It has been decided to immediately block the access to the following URLs… you are accordingly directed to immediately block the access to above URLs.”
The IT Act, 2000 and the Indian Penal Code do not decriminalize watching pornography, only production and transmission is illegal. The government can order removal of content only if the website is hosted in India. Most of these websites are hosted in the US (and legal in the US), thus this move by the DoT to block access to these pages is seriously over-reaching. It must be noted that the Intermediary Guidelines, 2011 ask intermediaries like ISPs to “inform users of computer resources not to host, display, upload, modify, publish, and transmit any information that is obscene and pornographic”. The government clearly wants to control what Indians can watch over the web.
In 2001, a PIL was filed in the Bombay High Court requesting blocking of porn sites as porn is illegal in India, thus it is the duty of the government to devise a mechanism to block the same. The Court commissioned a study with advocates and technical members and concluded in its judgment that it was not feasible to employ unscientific filtering technology which would actually constitute an act of censorship. In April 2013, the Supreme Court sought response from the government on a PIL to block and ban porn sites and making viewing porn a non-bailable offence. Industry experts have suggested that the mechanism would involve triggering of an alert the moment a blacklisted website is accessed. However, to ban porn and track viewers the government will also have to ban perfectly legitimate softwares such as Virtual Private Networks(VPN) and proxy servers (which help in circumventing the servers and allow access to blocked content). Now, blocking VPN and proxy servers would be a draconian move; yet if the government seeks to accomplish a ban on viewership of porn, it is a necessary step. Users are already complaining about sweeping blocking orders by the DoT, which has led to some legitimate software being rendered inaccessible.
Further, any blanket ban would be ineffective because everyday new software tools crop up to defy censorship. Anyway, instances show that it is futile to block these URLs because the sites simply change URLs and continue to operate. Removal of content is only possible when the servers hosting porn lie within the court’s jurisdiction. Thus, even a comprehensive anti- pornography legislation banning online viewership doesn’t stand to make much improvement to the existing situation. It will just be another miserable example of the Indian government desperately trying to censor the cyberspace.
Watching and possessing porn is not an act that damages the society in any manner whatsoever, which is the reason behind it being legal. However in this scenario the Government is operating on a presumption, which in my opinion is a reasonable one, that possessing porn presents the peril of it being distributed as well. Therefore to contend that a regulation over this activity is altogether unjustified is not tenable.
However, the modus adopted to achieve this end is not justified as a blanket ban over URLs which are outside the jurisdiction of the lex domicilii is not a solution.
Can a performer have copyright over porn? I understand that production and transmission will be illegal but in the Indian Copyright Act is there anything which bars pornographic material as such from getting copyright? Or is there even an immorality bar for ‘work’ which can be copyrighted?