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Why porn may continue being blocked despite Gov’t quadruple-negative order that ISPs ‘free not to disable’ 857 porn sites ‘that do not have child porn’

Q: Who's afraid of the DOT? Ans: All ISPs
Q: Who's afraid of the DOT? Ans: All ISPs

Is this the end of the block? Possibly not, despite Mint and others reported that the Department of Electronics and Information Technology (DeitY) sent a memo to the Department of Telecommunications (DoT) that internet service providers (ISPs) should be told they would be “free not to disable any of the 857 URLs, as given in the list, which do not have any child pornographic content”.

This might seem to effectively absolve the ISPs of responsibility to follow Friday’s DOT order that asked for the blocking of 857 primarily pornographic sites, which was first reported by Legally India on Sunday after Reddit users first noted the block on Saturday.

However, there remains a theoretical liability risk that many ISPs might not be willing to take, considering ISPs traditional risk awareness in such matters and historical tendency to succumb to the chilling effects of censorship orders.

The original order listing 857 sites was sent by the DOT under section 79(3)(b) of the IT Act – the so-called safe-harbour provisions for intermediaries.

Under the safe-harbour provisions, the ISP is protected from punishment or liability for any illegal content (such as child porn) it might allow access to.

However, it loses that protection if under section 79(3)(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...

In other words, ISPs may end up being cautious before unblocking all of the 857 sites because it received a notice form the government that some of those 857 URLs might contain illegal content.

If it turns out that even one of the 857 sites contained any child pornography in even one of the millions of videos and pieces of content hosted, ISPs could technically be on the hook by losing their intermediary safe harbour protection.

This is because the burden in the new DOT notice has been put onto the ISPs to be “free not to disable” any of the websites if those sites do not contain child pornography.

It seems unlikely that many ISPs will bet their licence and face possible criminal liability by vouching for each of the 857 sites, nor will any have the bandwidth or the inclination to actually browse every single one of 857 sites and video on each site, while making judgment calls about the content and age of actors.

That said, considering that the original blocking order of 857 would have been very vulnerable to being overturned by a high court if a writ petition were filed against it under the Supreme Court’s Shreya Singhal judgment, some ISPs with bolder management and legal departments may decide its worth braving it and unblocking all 857 sites, thinking that they will probably win any eventual legal challenge.

A case in the Supreme Court remains pending, with the government due to respond this month on the petition brought by advocate Kamlesh Vaswani.

Yesterday a number of papers reported that the government also requested ISPs to unblock non-pornographic websites that were, apparently accidentally, caught in the list, as first reported by Legally India.

At the time of publication, sites on the list of 857 remained blocked at an Airtel and a Spectranet connection in Delhi, including non-pornographic comedy sites collegehumor.com and 9gag.tv.

Photo by Craig Murphy

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