Search engines and other Web sites in India are required by law to filter pornographic content. But the opportunity for circumvention is so large, and government interest in prosecution so low, that the country is better off doing away with the laws, analysts said.
“It is impractical to monitor pornography on the net,” said Vijay Mukhi, a cyber law consultant in Mumbai. “Rather than try to control all of pornography on the Internet, the government would be better off focusing on the more serious issue of child pornography,” he added.
Section 67 of India’s Information Technology (Amendment) Act, 2008, penalizes “whoever publishes or transmits or causes to be published or transmitted in the electronic form” any material “which is lascivious or appeals to the prurient interest,” or “contains (a) sexually explicit act or conduct.”
Viewing of online pornography, other than child pornography, is however not an offence in India, said Pavan Duggal, a cyber law consultant and advocate in India’s Supreme Court.
The amendment Act modified certain provisions in the Information Technology Act of 2000. It removed, for example, the liability of intermediaries, including search engines, for third-party content, under certain conditions.
But there are still sufficient grounds for any search engine to be penalized for providing access to sexually explicit content, Duggal said. The due diligence required by them under the Act requires them to ensure that contraventions under the Act do not happen, he added.
In India, Microsoft’s search engine Bing blocks out pornographic content for local users. If the user types in terms like “sex”, “xxx” or “porn” for a Web site, video or image, the search engine blocks the search with the message “Your country or region requires a strict Bing SafeSearch setting, which filters out results that might return adult content.”
“Our products, including Bing, choose to comply with social norms and country specific laws governing adult content in the countries we operate in,” a Microsoft India spokeswoman said in an e-mail. As such in this case, Microsoft abides by the provisions of the Indian IT Act, she added.
However a Net-savvy user has only to change the country on the menu at the right hand corner of the Bing screen to the U.S. or many other countries, and he has access to unfiltered pornographic content.
“By not allowing people of India to access content that is illegal, these measures could qualify as due diligence under the IT Act,” Duggal said. If the user deliberately circumvents and enters his country as the U.S., it is not the fault of the search engine, he added.
Yahoo has also blocked out adult content for several years. Users in India on its local site www.yahoo.co.in cannot change their settings to other than safe search.
Yahoo has had safe search filters, designed to limit certain adult or sexual content, activated in specific markets for a number a years, a Yahoo spokeswoman said in an e-mail. “In India we have activated safe search filters to meet our obligations under the local law and to our users,” she added.
Indian users can however access links to pornographic sites and related images on the main Yahoo site www.yahoo.com.
Google does not by default screen pornographic text or images in India, as do Yahoo and Bing. It however offers users a SafeSearch Filtering option to modify the settings to moderately or strictly filter search results.
Google believes that its policy on safe search filters on its Indian site www.google.co.in is in compliance with local laws, and additionally, it does give users the ability to lock in SafeSearch, the company said in a statement. In the inadvertent event that some offensive content does appear, then any user can report it, and the appropriate support teams will take prompt and effective action in accordance with applicable policies, it added.
By providing options to users to modify their setting to view adult content, Google may not be complying strictly with the IT Act, according to Duggal.
Even as the search engines work out their own interpretations on how to comply with the law on online pornography, the Indian government is not taking a very serious note of pornographic Web sites.
“They recognize that they can’t police volumes of data for pornography,” Mukhi said.
Indian enforcement agencies tend to focus more on real-world crimes like murder, rape and kidnapping, than online obscenity, which is seen more as a form of deviant entertainment than as a serious criminal offense, Duggal said.
A senior police official said, on condition of anonymity, that curbing online pornographic entertainment was very low down on the list of priorities of the police.
Duggal estimated that there have been only two convictions in the country under Section 67 of the IT Act.
In one case a jilted male lover was convicted for circulating morphed images of a girl, while in the other case an individual was convicted for online obscenity.
The government can also instruct Internet service providers in the country to block pornographic Web sites. Except for one high-profile blocking of a cartoon pornographic Web site last year, there aren’t any known other instances of obstructed access to pornographic sites.
The government knows it is impractical to try to control online pornography, but it makes good politics to have an antipornography law in place, Mukhi said.