LAW OF CONTENT BLOCKING & BLOCKING OF WEBSITES IN INDIA: A LANDMARK CASE LAW

Online defamation has become a real and present menace, especially for women and the elites in India. Several organisations involved in various public and administrative spheres may find that blocking websites is necessary because of such reasons. The IT Act, 2000 makes no explicit provisions for website blocking. Websites with pornographic content on them can be blocked according to Section 67 of the Act. Blocking is now often equated with censorship. If such blocking interferes with the right to free speech and expression, it may be legally challenged. However, since all such websites may not assert a constitutional right to free speech, it is reasonable to restrict websites that promote pornography, including child pornography, violent sex, gambling, racism, hate speech, slander, defamation of others, and other such material. As mentioned by the Ministry of Communication and Information Technology(MEITY), “Blocking of such websites may be equated to the balanced flow of information and not censorship”. While discussing about blocking of websites, we would be using a specific landmark case of XXX Through Natural Guardian father & Power of Attorney Holder (Sunil Kumar Sriniwas Pathak) vs. The Union of India and Ors.

FACTS OF THE CASE

In this case, the petitioner, who was a minor at the time of the incident, was brought to the notice that several of her nude and explicit obscene videos are uploaded on porn websites, which were viewed and reposted by many other sites as well. The language used for this video caption itself is very nasty.

The Petitioner is a medical college student. This offence has caused a grave and adverse psychological impact on the Petitioner. The uploading of a minor’s porn video is itself a crime under the eyes of the law.

?Immediately she filed a police complaint at the cyber police station. Her legal representative started sending individual legal notices to the websites like Reddit to remove the obscene videos recorded and uploaded without her consent along with inappropriate captions. They made constant follow-ups to the concerned websites to remove/block the disputed URL links via email. Subsequently, they had to report to National Centre for Missing and Exploited Children (NCMEC) as per their reply.

ANALYSIS

As said by the well-known cyber lawyer who argued this case before Hon. Bombay High Court Advocate (Dr.) Prashant Mali, “the rampant rise of pornography is seen, and this issue needs to be addressed on a higher level. The right to privacy is highly affected where the names and images of people are used without their expressed or implied consent.” In the case of Justice K.S. Puttaswamy (Retd.) and Anr vs. Union of India and Ors 2017[1], it was held that Right to Privacy is a part of fundamental right guaranteed under Part-ID of the Constitution of India. ?The Hon’ble Supreme Court further held the “Right to be forgotten” and the “Right to be left alone” are inherent aspects of the “Right to privacy”.Even in the case of X vs. Union of India and Ors[2], Delhi High Court held that passed the direction to take down/block access of the Defamatory URL. ?

Privacy has been held to be an intrinsic element of the right to life and personal liberty under Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. The right to life and liberty, privacy is not absolute. The limitations, which operate on the right to life and personal liberty, would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just, and reasonable. The law, which provides for the curtailment of the right, must also be subject to constitutional safeguards.

?The concept of privacy is based on the autonomy of an individual to make decisions and to exercise his choices without any hindrance. Any breach of privacy should only be done to protect the legitimate state interests by bringing the law to that effect. Even then, such a law will have to pass the test of reasonableness and proportionality containing three requirements. The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law, which imposes the restriction, falls within the zone of reasonableness mandated by Article 14. The third requirement ensures that the means, which are adopted by the legislature, are proportional to the object and needs to be sought to be fulfilled by law.

The Right to privacy is to be interpreted as meaning that, in order to comply with the right to privacy the operator of website is obliged to remove from the list of results displayed following a search made on the basis of a persons name links to web pages. Right to Delink in India should be read within the framework of the legislation of the Information Technology Act, 2000 (Section 79) and Rule 3(2) of the Intermediary Guideline Rules, 2011. Intermediaries are liable for content, which is “invasive of another’s privacy”.

According to the Intermediary Guideline Rules, 2011, the intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within 36 hours.

REMEDY

Usually, all websites have a support mechanism wherein content uploaded without consent or against the rules and regulations of the government can be requested to be taken down. Albeit, few of the websites do not even have contact details like email addresses, grievance officer contact details, copyright infringement, etc.

There are two remedies for blocking websites. The first remedy to all offences is the same i.e. filing an FIR. If that does not work, one should contact a lawyer and follow the legal mechanisms provided in the IT Act,2000.

?Another recourse is provided under Section 69A of the Information Technology Act, 2000 where if you failed to remove the links of minors immediately from the websites, then the victim can file a case in the HC for blocking access to the websites in the whole of India.

CONCLUSION

The evolution of the Internet is constantly changing our conceptions of individual privacy. Once any information is made public and shared on the internet, it remains available for access across the world without an expiry date and due to the radically unrestricted spread of personal data across the web, people are no longer able to control how and by whom and in what context their personal data is being viewed. The form in which the personal data is published is invasive of the right to privacy and is defamatory in nature. It affects the credibility and reputation of the person as well as the social and personal relationships they hold. One can approach the website owner to take down the content but if there is no response, seeking help from the Court is the only reform left for the public.

[1] K.S.Puttaswamy (Retd.) & Anr v. Union of India & Ors., 2017 (10) SCC 1.

[2] X vs. Union of India and Ors., W.P. (CRL) 1082/2020

By Yoshita Phaphat , Intern (2023)