What has the SC ordered to the Search Engines ?
Supreme Court directed search engines Google, Microsoft , Yahoo not to advertise, or sponsor any advertisement relating to pre-natal sex selection. The court order came after the central government said the search engines have relevant technology and deep-domain knowledge and expertise to block/filter the words/phrases/expressions and sponsored links.
SC told the search engines to immediately withdraw online advertisements, currently being hosted or published, on pre-natal sex determination facilities, clinics or centres. They are in violation of Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) or PC-PNDT Act, 1994. The court has also directed the search engines to upload on their policy page and the terms of service page its order that they would not advertise or sponsor any advertisement which violated Section 22 of PC-PNDT Act. Terms and conditions should specify that information will not be disseminated which is in violation of PC-PNDT Act.
What is Section 22 of PC-PNDT,1994 Act ?
Section 22 of the PC-PNDT Act 1994, prohibits advertisements related to pre-natal determination of sex and provides for punishment for violation.
What is the defense put up by the Search Engines ?
• Internet is an uncensored medium and ordering the blocking of the information is dangerous as it amounts to pre-censorship.
• Blocking keywords on their search engine would amount to a gag on free speech and expression on the Internet. Blocking of certain generic words could prove counter-productive. Block on keywords on their search engine would even result in Modi’s speech on female sex ratio getting blocked.
Analysis : Earlier also, pre-censorship issue has been raked. Freedom of speech and expression can be affected but under reasonable restrictions. If any existing law is prohibiting some sort of content, electronic records can be barred from transmission of that content. Search Engines lie outside the territorial boundary and invariably cite the US const. But content has been published within India. If Section 69 of IT Act, 2000 and Article 19 of the Constitution is read together – it would amount to a reasonable restriction.
What is the SC’s view ?
Censorship and legal provisions were two different things, the court said “anything can take the colour and flavour of advertisement.” Human mind is ingenious and there is a scope for mischief.
How to block content in contravention with Indian laws ?
The Centre said there were three ways to block objectionable content:
- Blocking the URL at the Internet gateways in the country by the government- The information promoting sex selection can be blocked if the Uniform Resource Locator (URL) and IP (Internet Protocol) address is known. The exact URLs could be provided by the three search engines to block them at internet gateway for India.
- By the website service providers who host the information.
- By the search engine providers – Search engines can regulate key words and advertisement links as they have the relevant technology and deep-domain knowledge to do it. A blocking of search words, in effect, could lead to good searches being wiped out. The concept of search is very different from blocking offending advertisements. The blocking must be reasonable.
What are the practical difficulties ?
• Enforcing the ban would be very difficult, if not impossible.
• There are many ways to get around filters and it will block the genuine stuff. For instance, filters normally would scan the text, but they don’t stop graphics and many of the ads would have only graphics.
• One way to find out which ad is about sex determination would be at the stage when they are accepted, but most of the advertisements are automated so they will have to be looked at manually which will mean additional manpower will have to be deployed to do it.
Analysis : – Not all advertisements take place on involuntary basis. It takes place by conscious human efforts. Search Engines should be careful while booking advertisements which promote people to engage in unlawful activities. If still it persists, Government of India has the powers to t block such content under IT act. Once it so directs, All Internet Service Providers have to ensure compliance.
• A further problem is that these ads could be uploaded from anywhere in the world, targeting a specific geographical location. But, Search Engines need to ensure compliance with national requirements, domestic laws and regulations inspite of being located out of one jurisdiction.
How do search engines work ?
A search engine is a software program that searches for sites based on the words that you designate as search terms. Search engines look through their own databases of information in order to find what it is that you are looking for.
When a person performs an online search, the search engine finds in its billions of documents and does two things:
- It returns those results that are relevant to your query. See the issue here. PM talked of female foeticide and sex determination. Now, when you make a query in the search engine, the web page containing PM’s speech on female foeticide and sex determination will also be listed. This is exactly the point being made by Google. Search engines are not intelligent. They only “search” for the words you have typed, and display pages which contain content matching with your query. Thus blocking keywords like “sex – determination” would block all the content that contains the word ” sex- determination “.
- It ranks those results according to the popularity of the websites serving the information.
What the IT act says on the issue of Search engines ?
• Digital regime of India is governed by Information Technology Act,2000. If you consider the law from a holistic perspective, the issue of electronic records regarding pre-natal tests has not been touched. The reason being IT act is an e- commerce enabling legislation. While IT act does not directly talk about electronic records for pre-natal tests, it talks about intermediary.
• What is this intermediary ? Intermediary is defined under Sec 2 (1) (w) which says – Intermediary is with respect to any particular electronic message – it means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message. It specifically includes Network service providers, search engine providers, online portals etc. As you see, it is a very vast definition and anybody can be covered. All search engines are intermediaries. Sec 79 of the IT Act mandates them to exercise due diligence.
• 2008 amendment of the IT Act gave government huge powers to make rules and regulations to regulate and conduct activities. IT rules, 2011 mandate intermediaries to be regulated by terms and conditions in terms of uploading, hosting, forwarding, publishing etc which violates nay other law in force. PC-PNDT Act, 1994 is in force right now. So search engines are bound to remove advertisements that contravenes the provisions of this law. SC directive only reiterates this rule.
• Despite that if people misuse, it is the responsibility of the intermediary to remove or disable access of such content according to Rule 3 of IT Act – Intermediary guidelines rules. And, GoI has the power to block content.
This brings us to a fundamental question.
Can internet be controlled?
Endeavour of governments since the time of evolution of Internet is not to regulate it. Post Snowden, an atmosphere of distrust has evolved. Different approaches are followed by countries. China has a firewall that filters content. India too has been toying with the idea of web filters. If region specific internets are formed, then intrinsic danger lurks to the growth of internet as a network. It cannot be completely controlled. But domestic laws have to be complied.
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