Decoding India’s Proposed Online Porn Ban – II

This is the third in a series of posts reporting on the day-long “Tangled, Like Wool” meeting held in New Delhi in January 2014.

While the publication and transmission of online pornography is already an offence in India, two 2013 petitions – one filed in the Rajya Sabha and one in the Supreme Court – seek a ban on its consumption at well. Around 25 activists working on gender rights, sexuality rights and Internet rights opposed the blanket ban at this Delhi meeting on the following grounds:

Impact on Sexual Expression

  • “Obscenity” has traditionally been used as a ruse to reinforce patriarchy and to stifle sexual expression, including that of women, instead of fighting for women’s rights. In the past, content has been blocked on grounds of obscenity without delving into its politics and context, resulting in the glossing over of artistic content and writing by feminists and sexual minorities.

  • A ban would snuff out online communities of sexual minorities, stigmatised groups that largely exist online (such as practitioners of BDSM), and online relationships of individuals who don’t have access to offline ones. The tremendous liberating potential of the Internet to include such communities and enable them to connect, access material and have online relationships would be taken away.

  • While Internet Service Providers (ISPs), other intermediaries and technical bodies have indicated that they do not want to be put in the position to make decisions about content that should be blocked, they may be interested in the blocking of free speech for commercial reasons. Intermediaries have been known to err on the side of caution in order to avoid being held liable under the country’s intermediary laws. In an attempt to test the effect of Indian’s intermediary guidelines, the Centre for Internet and Society sent frivolous complaints to seven intermediaries in 2011. Six of them responded by taking down far more content than was requested.

Watch the video: Through an internet lens, by Anja Kovacs

Impact on Sexuality Education

  • In India, content is filtered either using keywords or through “block lists” of websites. Often caught in the sweeping trawls of these filters are sites with educational or informative content. For example, porn filters deployed in the UK ended up blocking content on sexual abuse and violence, health, and sexuality education while failing to keep out pornographic content. Users are employing means such as a Google Chrome extension called “Go Away Cameron” to bypass porn filters.

  • Findings from the EROTICS India 2011 study reveal that the Internet is often the only source of information on sexual and reproductive issues for women owing to taboos around sex and sexuality.

  • In the absence of comprehensive sexuality education curricula offered in schools, linking pornography to sexuality education would deprive young people of the avenues to voice their concerns without fear or shame and to obtain information on topics such as sexual abuse, unwanted pregnancies, HIV, and sexually transmitted diseases and infections.

Right to Access Information

  • The ban would hamper an individual’s right to free speech in terms of the right to access to information, which is recognised as a vital right in a democracy.

  • One of the reasons cited by the two petitions for seeking a ban is that online pornography could corrupt minors. A 2006 petition (Ajay Goswami vs. Union of India) that sought the regulation of content in newspapers in a similar vein was rejected by the Supreme Court. The apex court commented, “An imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the norms of decency in any society”. The Ashcroft vs. Free Speech Coalition ruling in the US established that a law meant to shield children from online pornography cannot be framed such that it results in the blocking of a substantial amount of speech that adults have a right to view.

  • The quarrels with the diversity of pornographic content Internet users seek to access are better addressed in a systematic and nuanced way rather than conflating questions of adults accessing pornography with web-enabled abuse of minors. This would include the acknowledgement of the different ways in which minors interact with explicit material, and would differentiate between contexts that amount to an empowering access to information for minors, and contexts which harm them. Additionally, the Convention on the Rights of the Child to which India is a signatory strongly supports children’s right to information.

  • The legal test for obscenity in India as defined by the Hicklin test refers to material that could “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”. As the test frowns upon the circulation of obscene material, an individual may privately seek and consume pornographic material without “corrupting” or “depraving” others.

State paternalism

  • The petition before the Rajya Sabha states that the majority of the population in India is less than 35 years of age and is “getting digressed, distorted and distressed on account of the growing free sex culture through cyber pornography”. A ban on such grounds sets up the danger of infantilising a section of the population and of paternalism that decides what is acceptable for it. The underlying notion is that the “masses” need to be protected from the ‘ill-effects’ of online pornography.

Watch the video: Through a freedom of speech and privacy laws lens, by Arjun J

  • Some participants noted that blanket bans on pornography are futile. For example, China has banned pornography completely but there is a flourishing black market for CDs and DVDs containing sexually explicit material. The participants agreed on the need to formulate a stance that doesn’t support a blanket ban on online pornography but acknowledges the problems with certain kinds of pornography. Some solutions that were discussed as the way ahead:

  • The legal standards for determining obscenity, such as the Hicklin test defined in 1868, need to be re-examined in the contexts of the internet and of online pornography.

  • Conduct training sessions to sensitise decision makers in the government and law enforcement about the nuances of issues concerning online pornography and the technology that applies to it. Create a manual to that effect and come up with terminologies that help civil society converse with the people in power regarding these issues.

  • A possible grey area is that the government could end up with a technical non-solution and informs the court that some methods of blocking porn are not technically possible. That would, in turn, mean that we bypass most of the debate; it is important to keep the debate on principles going.