Exclusive: Govt uses IT Rules to ban porn websites

The Indian government is relying on the Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021, to ban porn websites, four confidential letters to ISPs that appear to have inadvertently been made public on Thursday reveal. 

The Department of Telecommunications official who signed these orders declined to comment on the orders’ disclosure to Entrackr.

The orders cite rule 3(2)(b) of the IT Rules, which empower any individual to seek a takedown of content on an intermediary that is “in the nature of any material which exposes the private area of such individual”. 

This provision appears to protect people from the likes of revenge porn posted without their consent, but the government seems to have applied it to a broad swath of porn websites; it is unclear if the government received complaints from specific individuals whose private images were posted on these sites. The letters only make reference to “certain obscene material available in the below mentioned website that tarnish the image of modesty of women.”

While one of the orders is a result of a Pune court’s blocking of 63 pornography websites, the other orders seem to be drawing their authority from the IT Rules. The orders also mention an Uttarakhand High Court order from 2018 to ban porn websites that the court had passed suo motu. 

The use of such broad grounds to ban these websites indicates a shift in the government’s attitude towards the subject, even as it has shied away from announcing explicitly that it would move to ban internet pornography. 

In 2015, due to a miscommunication between the Additional Solicitor General of India and the Indian government, 857 porn websites were briefly blocked. Those sites were part of an affidavit by a petitioner in the Supreme Court, who was demanding a ban on those sites; the court did not grant a ban, but the ASG forwarded the list to the government, which ordered ISPs to take the sites down. 

The ban generated outcry and international coverage, and the government subsequently backtracked, saying that only child porn needs to be blocked. The sites were then largely unblocked. While the government did not pass any order banning porn, it did indicate that it would respect any judicial order that told it to do so.

In 2018, the Uttarakhand High Court took up the issue following reports of gang rapes in Dehradun, and based on incomplete information, demanded why the withdrawn order to block the 857 sites was not implemented. The government said in 2018 that it would clear things up with the court, and inform it about the circumstances that led to the order being withdrawn.

However, the Uttarakhand High Court did not accept those arguments. “The only explanation given by the Assistant Solicitor General is that another notification was issued after the notification dated 31.07.2015. It will not make any difference,” the court said, dismissing the government’s clarification. It then reinstated the ban.

Civil society groups have not challenged the Uttarakhand High Court’s reinstatement of a ban that was imposed by mistake in proceedings that are in front of the Supreme Court, possibly showing reluctance due to the checkered reputation of pornography among advocacy groups.

“These are issues beyond the scope of our expertise and we look for leadership from feminist and sex workers’ rights organisations who are best suited to take the lead on this issue,” the Internet Freedom Foundation said in 2019, indicating that it would not mount any challenge to bans on pornography. “We will listen and learn.”