India: The Doctrine Of Auto Block

Last Updated: 3 April 2017
Article by Vikrant Rana and Akshay Gupta

This Doctrine was first introduced by the Supreme Court of India, in the case of Sabu Mathew George v. Union of India and Ors.,1 directing Google India, Microsoft Corporation (I) Pvt. Ltd. and Yahoo India (hereinafter referred to as the "three Companies") to constitute an "In-House Expert Body" to detect violation on their respective platforms of the provisions of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the "said Act"). A "proposed list of words" has been developed which include inter alia 'gender selection', 'prenatal sex selection', 'baby gender selection', 'Prenatal diagnostic', etc. in respect of which when a search command is given, there will be "auto block" with a warning and nothing would be reflected on the screen in regards to the list of words.

Brief Facts of the case

Since 2001, the Hon'ble Supreme Court has expressed its concern with regard to reduction of sex ratio in this country with the Court noting that when there was a decrease in the sex ratio, it was a signal of disaster to mankind. This writ petition was filed by a doctor in the field of Public Health and Nutrition in the year 2008, expressing his concern about the modus operandi adopted by the respondents to act in detriment to the fundamental conception of balancing of sex ratio by entertaining advertisements, either directly or indirectly or as alleged, in engaging themselves in violation of Section 22 of the said Act. It is pertinent to note that the Supreme Court vide its order dated January 28, 2015 had previously directed, the three Companies to not advertise or sponsor any advertisement which would violate Section 22 of the said Act. 

Questionnaire Prepared by the Central Government

The Central Government had held a meeting with the three Companies where they were asked to respond to certain questions. The questions are as follows:

  1. Whether the three Companies felt obligated to comply with the provisions of the said Act, especially Section 22?
  2. Whether the three Companies were ready to publish a "Warning Message" on top of search result, as and when any user in India submits any "key word searches" in search engines, which relates to pre conception and pre-natal determination of sex or sex selection?
  3. Whether the three Companies were ready to block "auto-complete" failure for "key word" searches which relates to pre-conception and/or pre-natal determination of sex or sex selection?
  4. Whether the words/phrases relating to pre-conception and pre-natal determination of sex or sex selection to be provided and regularly updated by the Government for the 'key word search' or shall it be the onus of the three Companies providing search engine facilities?
  5. Whether it was feasible for the Respondents to place this Hon'ble Court order dated 28.01.2015 on their respective Home Page(s), instead of placing them on Terms of Service (TOS) pages?
  6. What was the suggested timeline to incorporate "Warning Message", blocking of the "auto-complete" feature for key word search & related terms etc. relating to pre-conception and pre-natal determination of sex or sex selection?
  7. Any other information as Respondents would like to share.

Contentions by the Three Companies (Google India Private Limited, Yahoo India Microsoft Corporation (I) Pvt. Ltd.)

The three Companies in their response to the above questions had submitted the following responses: 

  1. The three Companies indicated their willingness to comply with the provisions of Section 22 of the said Act.
  2. The three Companies indicated their willingness to publish the Warning Message/ a public service announcement.
  3. The three Companies produced a "proposed list of words" like 'gender selection', 'prenatal sex selection', 'baby gender selection', 'Prenatal diagnostic' etc., in respect of which when commands are given, there will be "auto block" with a warning and nothing would be reflected in the internet.
  4. The three Companies contended that apart from the words mentioned in the list, if anyone, taking recourse to any kind of ingenuity, feed certain words and something that is prohibited under the Act comes into existence, the "Doctrine of Auto Block" shall be immediately applied and it shall not be shown. Further, this can only be done when it was brought to the notice of the three Companies.
  5. The Respondent No. 3 (Google India Ltd.) asserted that if any activity is illegal/ prohibited under the provision of the Indian Penal Code, it does not mean that everyone in the world is disentitled from having any information about the subject and blocking access to the same would be in violation of Article 19(1)(a) of the Constitution of India including the right to know, the right to receive and right to access the information or content.

Decision of the Court

The Hon'ble Supreme Court of India directed the Union of India that:

  1. It shall constitute a Nodal Agency. (In Compliance with the direction of the Court the Nodal Agency has been set up. Any person can file a Complaint for violation of Section 22 of the said Act on pcpndtcomplaints@nihfw.org  ).
  2. It shall give an advertisement in television, newspapers and radio by stating that Nodal Agency has been created by order of the Court and anyone who comes across anything that has the nature of an advertisement or any impact in identifying a boy or a girl in any method, manner or mode by any search engine shall be brought to the notice of the Nodal Agency (In Compliance for advertising in television, newspaper and radio appropriate steps are being undertaken).
  3. The Nodal Agency shall immediately intimate the search engine when any such information is brought to the notice of the Nodal Agency.
  4. The search engines are obliged to delete such information within thirty-six hours and intimate the Nodal Agency.
  5. The Nodal Agency shall put the ultimate action taken by the search engine on its website.

Further the "In-House Expert Body" that is to be constituted by the three Companies, if not already constituted, shall on its own understanding delete anything that violates the letter and spirit of language of Section 22 of the said Act as they are under obligation to see that the "doctrine of auto block" is applied within a reasonable period of time. In case there is any doubt, they can enter into a communication with the Nodal Agency appointed by the Union of India and, thereafter, they will be guided by the suggestion of the Nodal Agency of the Union of India.

The present matter has been listed for further hearing on April 11, 2017.

Observation

It is pertinent to note that The Delhi High Court in the case of Kent RO Systems Ltd. & Anr. v. Mr. Amit Kotak & Ors.2, has categorically stated that the "Doctrine of Auto Block" is only limited to the said Act. The relevant text from the judgement reads as follow-

"Post Script: Before this order has been corrected and released, Supreme Court has vide Order dated 16th February, 2017 in WP(Civil) No.341/2008 titled Sabu Mathew George Vs. Union of India referred to the principle/doctrine of "auto block" and constitution by Google India, Microsoft Corporation (I) Pvt. Ltd. and Yahoo India of an "In House Expert Body" to detect violation on their respective platforms of the provisions of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PNDT Act), as the counsel for the plaintiffs herein has been contending, in the context of enforcement of the PNDT Act, 1994. However that was under Section 22 of PNDT Act and not under the IT Act or Rules."

Footnotes

1 WP(Civil) No.341/2008

2 CS (Comm) 1655 of 2016

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