Times of India as a publication has been in the forefront of introducing “Soft Porn Journalism” in India in print. Naavi.org has also observed that Times of India has an unusual interest in promoting commercial interests even when the stand they may espouse as a publication is against public interest. We have seen this in the various articles Times of India published to thwart the passage of Information Technology Act Amendments which were seen as detrimental to the interest of “Intermediaries”.

On the web, India Times has also been in the forefront of promoting pornography as Naavi.org pointed out in an article way back in the year 2003 . Now in “Savita Bhabhi”, the true colours of India Times as a Porn Support Publication has come out in the open once again.

Naavi.org fought hard against Savitabhabhi.com website which ultimately got banned. However no criminal action was taken on the owners of the website which should perhaps have been taken by Police in Gujarat since the owner of the site was identified as an NRI from Gujarat. As could be expected, Savita Bhabhi re-surfaced in the form of kirtu.com.

Naavi.org once again took up the issue with CERT In by means of an e-mail on December 23rd reproduced below.

E Mail Complaint sent to CERT In on December 23, 2009:

Quote:

Dear Sir

I regret to note that after the blocking of the website savithabhabhi.com, recently it has re-surfaced under the domain name kirtu.com.

This domain has been registered on 18th July 2009 under a service provider in US called domainnamesystems.com who is providing a privacy shelter to hide the name of the real owner of the website. The only difference with the earlier site and this is that they have introduced a welcome page with an adult site disclaimer. However the site is available on search engines and there is no verification for checking if the viewer is in fact 21 years of age or not. Merely making a statement that the site is available only for persons above 21 years of age without any effort to check the age is not sufficient to avoid liability under sections 67 and 67A of the ITA 2008.

Also since some of the episodes depict apparently minor characters engaged in explicit sexual activity, the site is also violating section 67B of ITA 2008. I am aware that there are people who challenge the intentions behind blocking of the website savithabhabhi.com and will also raise their voice against blocking of kirtu.com.

However in order to demonstrate our resolve not to let our younger generation be spoiled by such sites, it is necessary for CERT-In and the competent authority under Section 69B of ITA 2008 to continue its earlier resolve and take steps not only to block kirtu.com but also take action against the creators of the site and the organization which is hosting the site.

In the rules, you have not provided for any role for Internet Watch dogs like Naavi.org which would like to contribute towards building a responsible cyber society. However, I would like to continue to strive towards this self imposed obligation by at least urging for action from respective authorities.

In this case, one can also see how the Privacy and Proxy domain name system makes it difficult to find out who is the real owner of the website. You may remember that at the Bangalore Cyber Security Summit, we had discussed the ICANN RFC document on privacy and proxy registration and the Think tank had suggested that the Indian Government should oppose this policy. Action for this had to be taken only by MCIT.  I am not sure if this suggestion was taken seriously at all or the implication of the suggestion was appreciated. Now, without making any public disclosure of the existence of the site kirtu.com, I would urge you to take necessary steps to block the site.

You may recall the verdict of the French Court in the Yahoo Vs French Government case (Nazi Memorabilia case) where the Court directed Yahoo to initiate steps to block the site from French people failing which they need to pay a daily fine. Similarly we may move the Courts in India for a direction on the website kirtu.com to pay a daily fine in case they fail to remove the site.

Simultaneously you may block the site through Indian ISPs.

Also there is a need to issue a notice to the domain name/hosting  service company to make them vicariously liable if they donot reveal and also remove the website immediately at their end failing which they should be made an accused and the daily fine for not instituting measures to block entry from India may be imposed on them.

It should be ensured that the order we must obtain or you can issue to them for compliance should be to “Take such technical steps as may be required to ensure that no computer from India can log onto the website www.kirtu.com”. This should mean that even access via anonymizers should be blocked by the service provider.

If this is not feasible, they may remove the site.

The simultaneous action against the Intermediary and the Principle Accused is necessary to discourage emergence of other parallel sites. The person behind the site should also be identified so that action against him may be initiated.

Recently I came across an attempt by Andhra Police to get an employee of Cognizant Technologies working in US transferred to India so that action can be initiated against him for providing links to some new Telugu movie download through rss feeds.

If the commercial interests of a film producer can be so zealously guarded by our law enforcement, I think that the creators of Kirtu.com should be considered more deserving to be extradited from US, to have their  passports if issued from India, cancelled and to be punished for offences committed in India.

I  would like to know what is the priority accorded by Indian law enforcement  and MCIT to crimes such as kirtu.com vis a vis the commercial interest driven offences such as copyright offences. I hope you would initiate necessary action on kirtu.com without any delay.

End Quote:

This development was not reported in Naavi.org since it was considered better to hold back an unintended publicity to the clone site. However, over the last few weeks, there is a renewed attempt to promote this clone site openly.

Recently, in a Seminar in New Delhi, the Chief Justice of India made a remark that there was a need to ban pornographic websites on the Internet. Since then, a set of people have started a renewed campaign in reveres to promote Pornography on the Internet.

One of the reasons often stated is that when you ban one website, a clone will resurface and the example of savitabhabhi is being freely quoted in these article so that the alternate to savitabhabhi is made more and more popular.

I would like a challenge to all those technology specialists who say that “It is impossible to ban Pornography Sites” since they tend to proliferate in alternate names, to let me know if it is not common for Viruses to re surface after they have been detected and blocked.   They are again detected and blocked by the subsequent versions of the anti virus software. If this can be done for thousands of viruses, why should we consider that it is impossible to maintain a data base and filter pornography with reference to this data base. We know that there is an economy around Internet Pornography and this supports Spam and Planting of Viruses and Trojans,. The Pornography sites and emails indirectly support various Internet fraud scams, cyber terrorism and cyber war. I therefore not only consider that it is feasible to have a reasonable blocking of a majority of porn websites but also there is a need for the same. Then through rigorous enforcement of law, we need to make it uneconomical for the Internet Pornography to proliferate.

We shall now examine the role of Times of India which has actually prompted this long article. In the article of TOI on February 11th, the author Mr Manoj Mitta (Who has incidentally been behind some of the earlier misleading articles on ITA Amendments) makes the following statement:

 “a little-noticed fallout of the recent amendment to the Information Technology (IT) Act 2000, the government has given up the power to block pornographic websites purely on the ground of obscenity. Sites like Savita Bhabi, in other words, can no longer be banished from the virtual world merely because they don’t conform to a babu’s subjective moral view. Now, the courts alone can block such sites.”

He goes on to further state:

“This is because Section 69A, which came into effect on October 27, 2009 has raised the bar for the executive power to block porn websites. The government can still block such websites, but only if they create a “public order” problem — an unlikely probability. Savita Bhabi, for instance, can hardly start a riot.”

 He makes his own expert analysis on the amendments by stating “The change is thanks to a small but critical difference between Section 69A and the earlier version of Section 69. Under the old provision, the government could ban websites for “preventing incitement to the commission of any cognizable offence” including obscenity, a charge liable to be made out against porn websites. But the new provision takes a more pragmatic approach as it limits the power to ban websites to offences relating to five specific grounds. The intention of the lawmakers to keep the government away from moral policing of porn websites is also evident from the manner in which the grounds mentioned in Section 69A have been selectively lifted from Article 19(2) of the Constitution, which imposes “reasonable restrictions” on the freedom of speech and expression. Though Article 19(2) allows restrictions in the interests of, among other grounds, “public order, decency or morality”, all that has been incorporated in Section 69A of the IT Act from that expression is “public order”. The implication is that the government can no longer block a porn website unless it has ramifications threatening public order….”

The article appears to be well researched and has already been gleefully reproduced in several internet sites. What I would like to state here and also invoke the attention of the Chief Editor of Times of India, Director CERT In and Secretary Ministry of Communications and Information Technology, Government of India is as follows:

A Bill to amend Information Technology Act 2000 was initially presented in the form of Information Technology Act Amendment Bill 2006. (ITAA 2006). This was pending in the Parliament when the Information Technology Act Amendment Bill 2008 was presented to amend the ITAA 2006. This was passed on December 22/23 2008, assented by the President on 5th February 2009 and became the Information Technology Amendment Act 2008 (ITAA 2008). Copies of both bills and the emerging copy of Information Technology Act 2000 as amended by Information Technology Amendment Act 2008 (ITA 2008) are available on the site http://www.naavi.org/naavi_comments_itaa/index.htm. A copy of the Act as available on the ministry site as on today has also been downloaded and examined to check if there is any erroneous document that has crept into the GOI website based on which TOI was writing the subject article.

The sections 69 and 69 A as appearing in the copy of the ITAA 2008 is as follows:

Sec 69:  Where the central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defense 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 or for investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received or stored through any computer resource.

Sec 69A:  Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense 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, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource.

According to these versions, both Section 69 and 69 A contain the provision that the section can be invoked for “preventing incitement to the commission of any cognizable offence”. I presume that the words “related to the above” is being played up by TOI to state that the section cannot be invoked for “prevention of commission of any cognizable offence”. Further we may note the words in sec 69, “or for investigation of any offence“. This could mean that the section can be invoked even for investigation of an offence which is not cognizable.

Instead of clearly mentioning that their view is based on the words “related to the above” the report misrepresents to give an impression that the portion on “Cognizable offences” has been deleted.

I would like the Chief Editor, Times of India to clarify why they allowed the misrepresentation in the article and publish a rejoinder correcting the same.

Now let us try to interpret the “Intentions” behind the legislation. If the intention of the legislation was to make the section invokable only in the interest of sovereignty etc, there would be no reason to add the words “for preventing… related to above”. The words “In the interest of” already takes into account any cognizable or non cognizable offence or any other activity which may even be not an offence to be considered “in the interest of the security of the state etc”.

Hence the addition of the words “Cognizable Offence” which has a specific meaning both under ITA 2008 and in IPC etc must be held as a deliberate attempt by law makers to make the powers under the section available for prevention of all cognizable offences.

Secondly, the word “Public Order” need not necessarily be restricted to “Public Violence”. Laws of the State in whatever form they have been enacted, represent “Public Order” as intended by the community. Hence “Contravention” of any “law” is violation of “public order”. If there is a “Rape” of a woman, it is violation of “public order”, though only the interest of one single person is involved and not of the society. This is because the offence has the effect of depraving and corrupting the minds of others if left unpunished. Hence commission of any offence is “Adversely affecting the Public Order”.

What the section has limited is that it applies only to “Cognizable offences” and not “Any offence”.

It is clear that by the support TOI has shown to Savitabhabhi, this issue of “Intention behind the legislation” will finally be interpreted one day by Supreme Court. Probably the supporters of Kirtu.com would rejoice under the support of TOI until some body forces an official explanation on the same.

It would however be advisable for the GOI to either clarify the interpretation on its own or seek the CJI’s judicial opinion under a proper process to remove the doubts which have been mischievously (or should we say fraudulently?) implanted by Times of India through its article. We shall mark a copy of this article to the Director CERT In as well as any other authority which is deemed relevant so that “Irresponsible Journalism” by TOI is checked.

Related Articles:

Govt Cannot Ban Porn Websites for Obscenity… TOI

Urgent need to ban porn websites: CJI Balakrishnan

The War on Savitabhabhi.com needs to be continued

India Times Promoting Obscenity August 3, 2001

Why Times of India is Wrong..Oct 19,2007

Please do not try to manipulate public opinion with planted stories..Oct 18,2007

Recipe for Killing Journalistic Ethics..Oct 21,2007

Naavi

February 11, 2010

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