Introduction

In 2008, Sabu Matthew George, an activist, filed a writ petition to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. According to the petitioner, the display of these results violated Section 22 of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994. From 2014-2015, the Supreme Court ordered the respondents to block these advertisements several times. Finally, on November 16th 2016, the Supreme Court ordered the respondents, Google, Microsoft and Yahoo to ‘auto-block’ advertisements relating to sex selective determination. They also ordered the creation of a ‘nodal agency’ that would provide search engines with the details of websites to block. The next hearing for this case is scheduled for February 16th, 2017.

The judgment has been criticised for over-breadth and the censorship of legitimate content. We discuss some issues with the judgment below.

Are search engines ‘conduits’ or ‘content-providers’?

 An earlier order in this case, dated December 4th, 2012, states that the respondents argued that they “provided a corridor and did not have any control” over the information hosted on other websites.

There is often confusion surrounding the characterization of search engines as either ‘conduits’ or ‘content-providers’. A conduit is a ‘corridor’ for information, otherwise known as an intermediary. A content provider however, produces/alters the displayed content. It has been suggested by authors like Frank Pasquale that search engines (Google specifically) take advantage of this grey area by portraying themselves as conduits or content-providers, to avoid liability. For instance, Google will likely portray itself as a content-provider when it needs to claim First Amendment protection in the United States, and as a conduit for information when it needs to defend itself against First Amendment attacks. When concerns related to privacy arise, search engines attempt to claim editorial rights and freedom of expression. Conflictingly, when intellectual property matters or defamation claims arise, they portray themselves as ‘passive conduits’.

 In the Indian context, there has been similar dissonance about the characterization of search engines. In the aftermath of the Sabu Mathew George judgment, the nature of search engines was debated by a few. Apar Gupta pointed out that the judgment would contradict the Supreme Court’s decision reading down Section 79(3)(b) of the Information Technology Act, 2008 (IT Act) in Shreya Singhal vs. Union of India, where the liability of intermediaries was restricted. Therefore, he characterized search engines as passive conduits/intermediaries. According to him, the Sabu Mathew George judgment would effectively hold intermediaries liable for content hosted unbeknownst to them. Others have criticised this argument, stating that if Google willingly publishes advertisements through its AdWords system, then it is a publisher and not merely an intermediary. This portrays Google as a content-provider.

Sabu Mathew George defies existing legal standards 

As mentioned above, the Sabu Mathew George judgment contradicts the Supreme Court’s decision in Shreya Singhal, where the liability of intermediaries was read down under Section 79 (3) (b) of the IT Act. The Court in Shreya Singhal held that intermediaries would only be compelled to takedown content through court orders/government notifications. However, in the present case, the Supreme Court has repeatedly ordered the respondents to devise ways to monitor and censor their own content and even resort to ‘auto-blocking’ results.

 The order dated November 16th, 2016 also contradicts the Blocking Rules under the Information Technology Act, 2008. In the order, the Supreme Court directed the Center to create a ‘nodal agency’ which would allow people to register complaints against websites violating Section 22 of the PNDT Act. These complaints would then be passed on the concerned search engine in the manner described below-

“Once it is brought to the notice of the Nodal Agency, it shall intimate the concerned search engine or the corridor provider immediately and after receipt of the same, the search engines are obliged to delete it within thirty-six hours and intimate the Nodal Agency.”

 The functioning of this nodal agency would circumvent the Information Technology Act Blocking Rules. Under the Blocking Rules, the Committee for Examination of Requests reviews each blocking request and verifies whether it is in line with Section 69 of the IT Act. The Sabu Mathew George order has no such review system in place and also lowers the 48-hour time limit to 36 hours. While the author acknowledges that the nodal agency’s blocking rules are not a statutory mandate, its actions could still lead to over-blocking.

‘Organic search results’ and ‘sponsored links’

One important distinction in this case is between ‘organic search results’ and ‘sponsored links’. A submission by the DeITY explaining the difference between the two was not addressed by the Supreme Court in the order dated December 4th, 2014.

Section 22 of the PNDT Act criminalizes the display of ‘advertisements’, but does not offer a precise definition for the term. The respondents argued that ‘advertisement’ would relate to ‘sponsored links’ and not ‘organic search results’. As per the order dated September 19th, 2016, Google and Microsoft agreed to remove ‘advertisements’ and stated that search results should not be contemplated under Section 22 since they are not ‘commercial communication’. However, on November 16th, 2016, the Supreme Court stated that the block would extend to both ‘sponsored links’ and ‘organic search results’.  The respondents expressed concern against this rationale stating that legitimate information on pre-natal sex determination would be unavailable, and that the ‘freedom of access to information’ would be restricted. The Court stated that this freedom could be curbed for the sake of the larger good.

The ‘doctrine of auto-block’

By the order dated September 19th, 2016, the Court discussed the ‘doctrine of auto block’ and the responsibility of the respondents to block illegal content themselves. In this order, the Court listed roughly 40 search terms and stated that the respondents should ensure that any attempt at looking up these terms would be ‘auto-blocked’. The respondents also agreed to disable the ‘auto complete’ feature for these terms.

However, according to this empirical study conducted by The Centre for Internet & Society, blocking these specific search terms has not proven successful since websites linking to sex selection still show up.

In addition, Google has blocked search terms from their auto-complete system in several other countries, often with little success. This article points out that illegal search terms relating to child pornography have been allowed on auto-complete while more innocuous terms like ‘homosexual’ have been blocked by Bing, proving that this system of blocking has several discrepancies.

Other than a chilling effect on free speech, disabling auto complete can also lead to other adverse effects. In one instance, the owner of a sex-toy store complained about her business not benefitting from the autocomplete feature, like several others had. She stated that “…Google is … making it easier for people to find really specific information related to a search term. In a sense it’s like we’re not getting the same kind of courtesy of that functionality”. Similarly, several legitimate websites discussing pre-natal sex determination might lose potential readers or viewers if ‘autocomplete’ is disabled.

Conclusion

The author would like to make two broad suggestions. First, the functioning of the nodal agency should be revisited. The recommended system lacks accountability and transparency and will certainly lead to over-blocking and will also lead to a chilling effect. Second, search engines should not be given over-arching powers to censor their own websites. It is well-established that this leads to over-censorship. In addition to contradicting Section 79(3)(b) of the IT Act, the Court would also be delegating judicial authority to a private search engine.

The Supreme Court seems to be imposing similarly arbitrary rules upon search engines in other judgments. Recently, the Court ordered Google, Microsoft and Yahoo to create a ‘firewall’ that would prevent illegal videos from being uploaded to the internet.  They cited the example of China creating a similar firewall to prove the feasibility of the order.