India needs to crackdown ​on the Sex Ad Business Online

Nitish ChandanLaw

35-40% of the content downloaded in India is pornography. As per PornHub, India is also their 3rd largest traffic generating nation. And there are many more statistics to this tune that add validation to the fact that the consumption of pornography in India has gone up multiple folds since the telecommunication sector boom with dirt-cheap prices in the country. So much so that out of the many informative blogs on our website, the one about the legality of consumption of pornography receives a staggeringly higher number of views every day.

This post is not about any high grounds on watching pornography. Instead, it is about everything that surrounds a clip or those searches in the darker places on the Internet for explicit content. Most of the people reading this would have come across one or the other type of sexually provocative advertisements- either while trying to download a song (illegally), surfing the web normally even or while watching pornography or other videos. Now, companies like Google in their advertisement programs ensure that they do not pass on sexually provocative and lewd advertisements for the sake of their integrity and reputation, but sadly, many other advertisement providers do not care enough.

Often these advertisements contain clickbait for people to sign up for shady services but more often than not, these contain real images of real women and men with their phone numbers that look like a solicitation for sex. Mostly, all of this is non-consensual, results of ex-relationships or an estranged enemy coming into play. Nonetheless, such advertisement business has devastated hundreds of lives that we personally know of and perhaps millions more that never get reported or are buried in some untraceable records.

What does the law say about online sex advertisement business?

At the very outset, the publication of anything obscene is not allowed and criminally punishable by more than one legislation, including the Indian Penal Code, 1860 and the Information Technology Act, 2000. But as it turns out, most of these services are being operated from outside the territory of India giving law enforcement very little space to conduct investigations and bring culprits to justice. One idea in such a situation is to hold the intermediary (the website displaying the advertisements) liable for prosecution.

As per Section 79 of the Information Technology Act, 2000, an intermediary enjoys a safe harbour (freedom from civil and criminal liability) if it satisfies one of the three conditions laid down in the particular section. One such condition is if the intermediary did not initiate the communication, modify it or select the receiver. By that principle alone, an intermediary (let us say a blog) would be protected from the application of law even if its advertisements section shows a revenge pornography clipping with the contact details of a real person. Their defence could be that the advertisement is dynamic and that they have no control over it.

In the United States, however, new laws have been brought in at the federal level- the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Trafficking Act (SESTA). Particular provisions of these Acts make intermediaries liable (the only exception to Section 230 of their Communications Decency Act for safe harbour) for advertisements for prostitution and any other non-consensual sex work on their websites. Debates have stemmed from these legislations in no time about how they would actually not protect sex workers which their original objective is.

Nonetheless, they do put forward an example of how the future regulation of the internet might look like. There are definitely notorious advertisement service providers who would give a host some extra bucks for permission to promote sexually explicit advertisements and such providers, as well as the hosts, should be brought under the purview of law. All of this, because there is clear culpability of violation of provisions of the Information Technology Act, 2000.

It is also time that India rethinks its stance on internet regulation in these times. Shreya Singhal vs UOI did go into the details of Section 79 and the IT Rules on the subject, but the questions were more copyright and infringement oriented. A real analysis of intermediary liability needs to be done in order to protect end-users and victims of non-consensual pornography due to these advertisements. To some extent, intermediaries do need to be brought under the purview of the law when heinous offences like non-consensual pornography are committed through their networks (at least through advertisements that are contracted by them).