Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Contracts Expression
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The High Court of Uttarakhand directed Internet Service Providers to block the publication/transmission of all obscene material in electronic form, including child pornography under Rule 3(2)(b,c) of the Information Technology (Intermediaries Guidelines) Rules, 2011. Further, it directed the Ministry of Communications and IT to suspend the Internet Service Licenses of those intermediaries that failed block pornographic websites. The issue arose in September 2018 when the High Court of Uttarakhand (India) took notice of newspaper articles, which reported that a student was raped in the premises of a local school after the culprits had watched pornographic movies together. The Court sought measures that could help counter a rise in sexual violence against minors.
The full name of the case is: In Re: In the matter of incidence of gang rape in a boarding school, situated in Bhauwala, District Dehradun v. State of Uttarakhand
In July 2015, the Ministry of Communications and IT (Government of India) had issued a Notification (“July 2015 Notification”) directing Internet Service Providers to ban 857 pornographic websites. Owing to public outcry against the move, the Ministry of Communication and IT in August 2015 (“August 2015 Notification”) clarified to the Intermediaries ‘that they were free not to disable any of the 857 URLs which did not have child pornographic content’ [para. 4]. Thus, in effect, the scope of the blockage was reduced to include only those websites that hosted/transmitted child pornography.
In September 2018, the High Court of Uttarakhand (“the Court”) took suo moto cognizance of newspaper articles (acting on its own accord), which reported that a minor student was allegedly raped in the premises of a local school after the alleged culprits (minors from the same school as the victim) had watched pornographic movies together.
The Court examined Sections 67, 67A, 67B and 79 of the Information Technology Act, 2000 (“IT Act”) read with Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 (“IT Rules”) that governed intermediaries and the publication of obscene material online, to examine measures that could help in countering sexual violence against minors.
C.J. Ranganathan delivered the judgment on behalf of J. Khuble and himself. The main issue before the Court was to identify measures to counter increasing sexual assault against minors.
The Uttarakhand High Court issued an Order in the case on 27th September 2018 and then the present order on 7th December 2018.
Order dated September 27, 2018
In the Order dated September 27, 2018 (“September Order”), the Court observed that ISPs were expected to block pornographic websites to protect children of impressionable age as content that negatively affected children’s psyche may lead to them committing crimes. The Court relied upon Section 67, 67A, 67B and 79 of the IT Act read with Rule 3(2)(b) and Rule 3(2)(c) of the IT Rules to hold that all Internet Service Providers must strictly obey the July 2015 Notification that had directed Internet Service Providers to ban all pornographic websites, including child pornographic websites.
The Court specifically referenced the ‘The Information Technology (Intermediaries Guidelines) Rules, 2011’ which states that intermediaries must abide by Rule 3(2)(b) which “provides that due diligence shall be observed by intermediary to avoid grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling contents.” [Para. 17] And Rule 3(2) (c) which “protects the minors from harm by intermediary.” [Para. 18]
In conclusion, the Court issued the following mandatory directions: “There shall be a direction to all the Internet Service License Holders to punctually obey the Notification dated 31st July, 2015 and to block the publication or transmission of obscene material in any electronic form, transmitting of material containing sexually explicit act or conduct and also publishing or transmitting of material depicting children in sexually explicit act or conduct forthwith.” [Para. 24] Further, the Court directed the Ministry of Electronics and IT to suspend licenses of all Internet Service License Holders under Section 25 of the IT Act if they failed to do so.
Order dated December 7, 2018
In the present order, the High Court of Uttarakhand disposed off the matter by relying upon an affidavit submitted by the Ministry of Communications and IT stating that ‘steps were already being taken to block 857 pornographic websites’ [para. 5].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression as it imposes content based restrictions on Internet Service Providers. Moreover, despite the Ministry of Communications (Government of India) clarifying in August 2015 that intermediaries were free not to disable pornographic websites that did not have child pornographic content, the present Order directs intermediaries to ban all pornographic websites.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Uttarakhand High Court, the judgement is binding on all lower courts in Uttarakhand.
Let us know if you notice errors or if the case analysis needs revision.