The Department of Electronics and Information Technology has recently issued a list of websites offering escort services that are required to be blocked, following an order by a Mumbai magistrate. While I have not yet looked at the list itself, the order raises several issues that I would like to examine. A simple way to understand online regulation is to compare it with an equivalent offline regulation. Broadly, this means that any act that is illegal offline should be illegal online, and vice versa. This is not always necessarily true, but generally suffices as a rule of thumb.
Are escort websites legal?
To answer this question, I will look at the Immoral Traffic (Prevention) Act, 1956, the Indecent Representation of Women Act, 1986, and the Information Technology Act, 2000.
Let us consider the Immoral Traffic (Prevention) Act and specifically the legal status of “soliciting in public”.
According to Section 8, any individual who “in a public place…by words, gestures, wilful exposure of his person, or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person” or “solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance...or to offend against public decency” for the purpose of prostitution is committing a punishable criminal offence.
We do not know whether all escort websites necessarily contain this element of solicitation. The Immoral Traffic (Prevention) Act defines a “public place” as “any place intended for use by, or accessible to, the public and includes any public conveyance.” An escort website is accessible to the public but can only be accessed by users who are either aware of the address (domain name/IP address) of the website or are specifically looking for escort services, it may therefore be difficult to consider such website a “public place” as defined under the Act.
However, under the Indecent Representation of Women Act, the publication of any material that represents women in a way that has the “effect of being indecent...derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals” is prohibited and is a criminal offence. Similarly, Section 67 of the IT Act criminalises the publication of material that is “lascivious or appeals to prurient interests” and is morally corrupting. If websites offering escort services display material that is prohibited under these statutes they would be in violation of the law.
Can Section 69A of the IT Act (the so-called blocking section) and associated rules be used by courts to order blocks of escort websites?
There is a section that specifically deals with blocking of websites in the Information Technology Act – Section 69A. This provision authorises the government to issue blocking orders on expressly defined grounds:
“in the interest of the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.”
There are regulations that have been made under this section that provide the details on the procedure to be followed while the government exercises its powers to block websites. These are in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, also known simply as the blocking rules.
Rule 10 of the blocking rules states that the government shall take action after receiving the certified copy of any order for blocking by a competent court.
So, clearly, under the blocking rules, courts have the power to order blocking of websites. However, subordinate legislation or rules, such as the blocking rules, may not be ultra vires the parent Act, meaning they cannot violate or be wider in scope than the parent Act.
Since there is no mention of decency or morality in the blocking Section 69A itself, it is apparent that the power of the courts (and the government) under Rule 10 of the blocking rules cannot encompass blocking of websites on the basis of decency or morality.
Can Section 79 of the IT Act (the intermediary liability section) and associated rules be used to block escort websites?
Intermediary liability law across the world has been enacted to protect platform owners from any legal liabilities caused by third-party information hosted on their servers. In India, Section 79 of the IT Act aims to provide these protections. In addition to certain legal immunities, it also places certain obligations on intermediaries to remove or disable access to information upon being notified by the government.
Before I answer this question, I need to first explain the definition of the word, intermediary, and also the following terms: block, remove and disable access.
Unfortunately, the IT Act has a very broad definition of the word intermediary as it relates to “any particular electronic records” – specifically “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces and cyber cafes.”
This list explicitly classifies internet service providers, or ISPs, as intermediaries.
The word block (used only in Section 69A) usually refers to an action taken by an intermediary such as an ISP to prevent the public from accessing some information from any source.
To “disable access” (a term used only in Section 79) usually refers to an online platform preventing access to third-party content on their website [for instance geo-filtering or geo-blocking of copyrighted material based on differences across jurisdictions], but could also mean any relevant actions by ISPs to prevent access to certain content or services.
Removing (used only in Section 79) information usually describes an online platform deleting third-party content from their databases and servers. The divergent views that I describe below are a result of the use of the phrase “disabling access” in the intermediary liability section.
To repeat: can the government impose an obligation on intermediaries to carry out blocking under this provision?
I argue that they cannot, as the intermediary liability section is meant to provide immunity to intermediaries from liability arising from third party information on their platforms. The blocking section, on the other hand, is a special provision that authorises the government to issue blocking orders to intermediaries on grounds that are discussed earlier in the article.
To conclude, I believe that the websites offering escort services may potentially be in violation of the law. However, they cannot be blocked under the existing provisions of the IT Act.
Japreet Grewal is a programme officer with the Centre for Internet and Society.