Search engines Google, Yahoo and Microsoft informed the Supreme Court on Monday that they have taken several measures to block all information relating to sex determination. This is in response to an ongoing case where a PIL was filed against the search engines regarding the display of advertisements of sex determination kits and clinics. The matter has been listed for disposal on 16 November.
The search engines have agreed to a list of 22 words which will be removed from the keyword search. This means that a person typing phrases such as ‘gender selection’, ‘gender selection kits’, ‘prenatal sex determination clinics’, and so on will not receive any autocomplete predictions on Google. As a result, though this information will still be available on the internet, it will be harder to search for on search engines.
Interim measures to block the sex determination ads were first passed by the Supreme Court in January 2015. Now, advertisements relating to these issues have been banned completely. In addition, the search engines will now display a warning to users searching for these terms, stating that this issue is in violation of laws in India.
The PIL was filed in 2008 by Sabu Matthew George, a well-known gender activist. The issue of sex determination and female foeticide is no small one in India. The 2011 census reports a skewed sex ratio of 944 females for every 1000 males in India.
The increasing issue of female foeticide led to the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, (the PCDT Act) which prohibits sex determination tests and abortions in India. Section 22 of this Act also prohibits advertisement on these issues in any form, including on the internet. It is this section which the search engines were found to violate through the hosting of advertisements relating to these issues.
In addition to this, sex determination kits can now be ordered online. The internet is now playing an even larger role in violating the law than just through the provision of information. It is enabling people to conduct sex determination tests at home, without even having to visit a clinic. It was these incidents that drove Sabu Matthew to file the PIL against search engines
In the case of sponsored advertisements, the liability of search engines is clearer, since the search engine is playing an active role in making the advertisement available. In case of other advertisements, the search engines are protected as intermediaries under Section 79 of the Information Technology Act, 2000. Even when, for example, a link to the website of sex determination clinic is listed in the search results, the search engine is not liable as an intermediary. All of this information is in violation of the PCDT Act, and therefore unlawful.
Since the search engines are protected under the IT Act, any information that has to be blocked can be done through Section 69A of the IT Act. This section gives the government the power to block public access to any online information that is unlawful. It is under this section that websites are blocked in India.
This section was questioned in the well-known case of Shreya Singhal v. Union of India in 2015. The case alleged that this section resulted in internet censorship, and therefore was constitutionally invalid. The Supreme Court, however, upheld this section, noting that there were enough procedural safeguards in place to prevent any misuse or abuse of the section.
In this case, the Supreme Court has also asked the search engines to develop and implement an ‘autoblock’ mechanism, which will automatically block out any information relating to these subjects. Even if a person, by some ingenuity, types a word into search engine which shows the prohibited information, then the autoblock technique should come into play and automatically block out the information.
The court had overruled the argument that blocking of such information would amount to internet censorship. However, the widespread implementation of this mechanism to block out any information that is illegal in India can be extremely detrimental for the free availability of information. For example, blocking out ‘sex determination’ can block out all news articles relating to the issue, this Supreme Court judgment, and also information relating to the PCDT Act itself, the act which prohibits sex determination tests in India.
Instead of an autoblock mechanism which also blocks out a large amount of legitimate information, better systems need to be developed to handle it. For example, in China, highly sophisticated, technical censorship systems are supported by large number of human censors, to identify and prevent legitimate information from being censored. It is hoped that a better way to prevent the availability of illegal information will be found.