This article has reference to the Times of India Article published today, the
11th February 2009 under the title "Govt Cannot Ban Porn Websites for
Obscenity" and strongly condemns the article for being false and
misleading.
Times of India as a publication has been
in the forefront of introducing "Soft Porn Journalism" in India in print.
Naavi.org has also observed that Times of India has an unusual interest in
promoting commercial interests even when the stand they may espouse as a
publication is against public interest. We have seen this in the various
articles Times of India published to thwart the passage of Information
Technology Act Amendments which were seen as detrimental to the interest of
"Intermediaries".
On the web ,India Times has also been in
the forefront of promoting pornography as Naavi.org pointed out in an
article
way back in the year 2003 .
Now in "Savita Bhabhi", the true colours
of India Times as a Porn Support Publication has come out in the open once
again.
Naavi.org fought
hard against Savitabhabhi.com website which ultimately got banned. However no
criminal action was taken on the owners of the website which should perhaps
have been taken by Police in Gujarat since the owner of the site was
identified as an NRI from Gujarat.
As could be expected, Savita Bhabhi
re-surfaced in the form of kirtu.com. Naavi.org once again took up the issue
with CERT In by means of an e-mail on December 23rd reproduced below.
E Mail Complaint sent to CERT In on December 23, 2009:
Dear Sir
I regret to note that after the blocking of the website
savithabhabhi.com, recently it has re-surfaced under the domain name
kirtu.com.
This domain has been registered on 18th July 2009 under a service provider in
US called domainnamesystems.com who
is providing a privacy shelter to hide the name of the real owner of the
website.
The only difference with the earlier site and this is that they have
introduced a welcome page with an adult site disclaimer. However the site is
available on search engines and there is no verification for checking if the
viewer is in fact 21 years of age or not.
Merely making a statement that the site is available only for persons above 21
years of age without any effort to check the age is not sufficient to avoid
liability under sections 67 and 67A of the ITA 2008. Also since some of the
episodes depict apparently minor characters engaged in explicit sexual
activity, the site is also violating section 67B of ITA 2008.
I am aware that there are people who challenge the intentions behind blocking
of the website savithabhabhi.com and
will also raise their voice against blocking of kirtu.com.
However in order to demonstrate our resolve not to let our younger generation
be spoiled by such sites, it is necessary for CERT-In and the competent
authority under Section 69B of ITA 2008 to continue its earlier resolve and
take steps not only to block kirtu.com but
also take action against the creators of the site and the organization which
is hosting the site.
In the rules, you have not provided for any role for Internet Watch dogs like
Naavi.org which would like to contribute towards building a responsible cyber
society. However, I would like to continue to strive towards this self imposed
obligation by at least urging for action from respective authorities.
In this case, one can also see how the Privacy and Proxy domain name system
makes it difficult to find out who is the real owner of the website. You may
remember that at the Bangalore Cyber Security Summit, we had discussed the
ICANN RFC document on privacy and proxy registration and the Think tank had
suggested that the Indian Government should oppose this policy. Action for
this had to be taken only by MCIT. I am not sure if this suggestion was taken
seriously at all or the implication of the suggestion was appreciated.
Now, without making any public disclosure of the existence of the site
kirtu.com, I would urge you to take necessary steps to block the site.
You may recall the verdict of the French Court in the Yahoo Vs French
Government case (Nazi Memorabilia case) where the Court directed Yahoo to
initiate steps to block the site from French people failing which they need to
pay a daily fine. Similarly we may move the Courts in India for a direction on
the website kirtu.com to
pay a daily fine in case they fail to remove the site. Simultaneously you may
block the site through Indian ISPs. Also there is a need to issue a notice to
the domain name/hosting service company to make them vicariously liable if
they donot reveal and also remove the website immediately at their end failing
which they should be made an accused and the daily fine for not instituting
measures to block entry from India may be imposed on them. It should be
ensured that the order we must obtain or you can issue to them for compliance
should be to "Take such technical steps as may be required to ensure that no
computer from India can log onto the website www.kirtu.com".
This should mean that even access via anonymizers should be blocked by the
service provider. If this is not feasible, they may remove the site.
The simultaneous action against the Intermediary and the Principle Accused is
necessary to discourage emergence of other parallel sites. The person behind
the site should also be identified so that action against him may be
initiated.
Recently I came across an attempt by Andhra Police to get an employee of
Cognizant Technologies working in US transferred to India so that action can
be initiated against him for providing links to some new Telugu movie download
through rss feeds. If the commercial interests of a film producer can be so
zealously guarded by our law enforcement, I think that the creators of
Kirtu.com should be considered more deserving to be extradited from US, to
have their passports if issued from India, cancelled and to be punished for
offences committed in India.
I would like to know what is the priority accorded by Indian law enforcement
and MCIT to crimes such as kirtu.com vis
a vis the commercial interest driven offences such as copyright offences.
I hope you would initiate necessary action on kirtu.com without
any delay.
This development was not reported in
Naavi.org since it was considered better to hold back an unintended publicity
to the clone site.
However, over the last few weeks, there
is a renewed attempt to promote this clone site openly.
Recently, in a Seminar in New Delhi, the
Chief Justice of India made a remark that there was a
need to ban pornographic
websites on the Internet. Since then a set of people have started a
renewed campaign in reveres to promote Pornography on the Internet. One of the
reasons often stated is that when you ban one website, a clone will resurface
and the example of savitabhabhi is being freely quoted in these article so
that the alternate to savitabhabhi is made more and more popular.
I would like a challenge to all those
technology specialists who say that "It is impossible to ban Pornography
Sites" since they tend to proliferate in alternate names, to let me know if it
is not common for Viruses to re surface after they have been detected and
blocked. They are again detected and blocked by the subsequent versions of the
anti virus software. If this can be done for thousands of viruses why should we consider
that it is impossible to maintain a data base and filter pornography with
reference to this data base. We know that there is an economy around Internet
Pornography and this supports Spam and Planting of Viruses and Trojans,. The
Pornography sites and emails indirectly support various Internet fraud scams,
cyber terrorism and cyber war. I therefore not only consider that it is
feasible to have a reasonable blocking of a majority of porn websites but that
there is a need for the same. Then
through rigorous enforcement of law, we need to make it uneconomical for the
Internet Pornography to proliferate.
TOI Role
We shall now examine the role of Times of
India which has actually prompted this long article.
In the article of TOI on February 11th,
the author Mr Manoj Mitta (Who has incidentally been behind some of the
earlier misleading articles on ITA Amendments) makes the following statement:
"a little-noticed fallout of the recent amendment to the Information Technology
(IT) Act 2000, the government has given up the power to
block pornographic websites purely on the ground of obscenity. Sites like
Savita Bhabi, in other words, can no longer be banished from the virtual world
merely because they don't conform to a babu's subjective moral view. Now, the
courts alone can block such sites."
He goes on to further state:
"This is because Section 69A, which came into effect on October 27, 2009 has
raised the bar for the executive power to block porn websites. The government
can still block such websites, but only if they create a "public order"
problem -- an unlikely probability. Savita Bhabi, for instance, can hardly
start a riot."
He
makes his own expert analysis on the amendments by stating
"The change is thanks to a small but critical difference between Section 69A
and the earlier version of Section 69. Under the old provision, the government
could ban websites for "preventing incitement to the commission of any
cognizable offence" including obscenity, a charge liable to be made out
against porn websites. But the new provision takes a more pragmatic approach
as it limits the power to ban websites to offences relating to five specific
grounds. The intention of the
lawmakers to keep the government away from moral policing of porn websites is
also evident from the manner in which the grounds mentioned in Section 69A
have been selectively lifted from Article 19(2) of the Constitution, which
imposes "reasonable restrictions" on the freedom of speech and expression.
Though Article 19(2) allows restrictions in the interests of, among other
grounds, "public order, decency or morality", all that has been incorporated
in Section 69A of the IT Act from that expression is "public order". The
implication is that the government can no longer block a porn website unless
it has ramifications threatening public order...."
The article appears to be well researched and has already been gleefully
reproduced in several internet sites.
What I would like to state here and also invoke the attention of the Chief
Editor of Times of India, Director CERT In and Secretary Ministry of
Communications and Information Technology, Government of India is as follows:
A Bill to amend Information Technology Act 2000 was initially presented in the
form of
Information Technology Act Amendment Bill 2006. (ITAA 2006). This was
pending in the Parliament when the Information Technology Act Amendment Bill
2008 was presented to amend the ITAA 2006. This was passed on December 22/23
2008, assented by the President on 5th February 2009 and became the
Information Technology Amendment Act 2008 (ITAA 2008). Copies of both
bills and the emerging copy of Information Technology Act 2000 as amended by
Information Technology Amendment Act 2008 (ITA 2008) are available on the site
http://www.naavi.org/naavi_comments_itaa/index.htm. A copy of the Act as
available on the ministry site as on today has also been downloaded and
examined to check if there is any erroneous document that has crept into the
GOI website based on which TOI was writing the subject article.
The sections 69 and 69 A as appearing in the copy of the ITAA 2008 is as
follows:
According to these versions, both Section 69 and 69 A contain the provision
that the section can be invoked for "preventing incitement to the commission
of any cognizable offence". I presume that the words "related to the above" is
being played up by TOI to state that the section cannot be invoked for
"prevention of commission of any cognizable offence". Instead of clearly
mentioning that their view is based on the words "related to the above".
Instead the report misrepresents to give an impression that the portion on
"Cognizable offences" has been deleted.
I would like the Chief Editor, Times of India to clarify why they allowed the
misrepresentation in the article and publish a rejoinder correcting the same.
Intentions Behind Legislation:
Now let us try to interpret the "Intentions" behind the legislation. If the
intention of the legislation was to make the section invokable only in the
interest of sovereignty etc, there would be no reason to add the words "for
preventing... related to above". The words "In the interest of" already takes
into account any cognizable or non cognizable offence or any other activity
which may even be not an offence to be considered a ground "in the interest of
the security of the state etc". Hence the addition of the words "Cognizable
Offence" which has a specific meaning both under ITA 2008 and in IPC etc must
be held as a deliberate attempt.
Secondly, the word "Public Order" need not necessarily be restricted to
"Public Violence". Laws of the State in whatever form they have been enacted,
represent "Public Order" as intended by the community. Hence "Contravention"
of any "law" is violation of "public order". If there is a "Rape" of a woman,
it is violation of "public order", though only the interest of one single
person is involved and not of the society. This is because the offence has the
effect of depraving and corrupting the minds of others if left unpunished.
Hence commission of any offence is "Adversely affecting the Public Order".
What the section has limited is that it applies only to "Cognizable offences"
and not "Any offence".
It is clear that by the support TOI has shown to Savitabhabhi, this issue of
"Intention behind the legislation" will finally be interpreted one day by
Supreme Court. Probably the supporters of Kirtu.com would
rejoice under the support of TOI until some body forces an official
explanation on the same.
It would however be advisable for the GOI to either clarify the interpretation
on its own or seek the CJI's judicial opinion under a proper process to remove
the doubts which have been mischievously (or should we say fraudulently?)
implanted by Times of India through its article.
We shall mark a copy of this article to the Director CERT In as well as any
other authority which is deemed relevant so that "Irresponsible Journalism" by
TOI is checked.
