Supreme Court passes an interim order directing search engines not to sponsor any advertisement violating the provisions of the Prohibition of advertisement relating to pre-natal determination of sex Act

Supreme Court on Wednesday, as an interim measure, directed search engines like Google India, Yahoo India and Microsoft Corporation (I) Pvt Ltd not to advertise or sponsor any advertisement which would violate Section 22 of the PCPNDT Act, 1994. The Court further asked them to withdraw any advertisements already put up on the search engines. 

The Court also directed the search engines to upload on their policy page and the terms of service page its order that they would not advertise or sponsor any advertisement which violated Section 22 of Prohibition of advertisement relating to pre-natal determination of sex (PC-PNDT) Act. "As an interim measure, it is directed, the respondents, namely, Google, Yahoo and Microsoft shall not advertise or sponsor any advertisement which would violate Section 22 of the PC-PNDT Act, 1994," a Bench comprising of Justice Dipak Misra and Justice Prafulla C Pant said.

If any advertisement existed on any search engine, "the same shall be withdrawn forthwith by the respondents," it said. The order was passed after Google and Microsoft argued that they were not advertising anything which violated the PC-PNDT Act or any Indian law. They also said it was not clear from the government's affidavit the nature of information sought as it has only stated that the search engines should be asked to provide or submit details of measures adopted by them to block or filter keywords and sponsored links violative of PC-PNDT Act and amendments.

The Bench also accepted on record an additional affidavit filed on behalf of the Centre which said the government could block or filter "the presentation of any kind of thing that relates to sex selection and eventual abortion, if the URL and the I.P. addresses are given along with other information by the respondents, regard being had to the key words, namely,“pre-natal diagnostic tests for selection of sex before or after conception, pre-natal conception test, pre-natal diagnostic, pre-natal foetoscopy for sex selection, pre-natal ultrasonography for sex selection, sex selection procedure, sex selection technique, sex selection test, sex selection administration, sex selection prescription, sex selection services, sex selection management, sex selection process, sex selection conduct, pre-natal image scanning for sex selection, pre-natal diagnostic procedure for sex selection, sex determination using scanner, sex determination using machines, sex determination using equipment, scientific sex determination and sex selection”

Therefore, the exact URL needs to be provided by the concerned agencies for blocking or filtering at the Internet Gateways,  said the Solicitor General, Ranjit Kumar, appearing for the Centre. 

The Apex court said matters relating to the total blocking of the items suggested by the government and providing the URL and IP addresses by Google, Yahoo and Microsoft would be taken up on February 11. 

Search engines like Google, Yahoo and Microsoft are capable of blocking all contents infringing Indian laws, including those relating to pre-natal sex determination technologies, claims the Union Govt in an affidavit filed in the Supreme Court

The Union Government on Friday informed the Supreme Court through an affidavit that search engines like Google, Yahoo and Microsoft were capable of blocking all contents infringing Indian laws, including those relating to pre-natal sex determination technologies.

The affidavit has been filed in response to a Public Interest Litigation (PIL) by Sabu Mathew George, who said the search engines violated Indian laws by displaying pre-natal sex determination ads.

In its affidavit, the Ministry of Communications and Technology has stated that the “search engines have the relevant technology and deep-domain knowledge and expertise to block/filter the words/phrases/expressions and sponsored links, which are violative of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act.” The Act prohibits determination of the sex of a foetus.

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The Ministry contended that the search engines like Google, Yahoo and Microsoft were intermediaries, as defined under the Information Technology Act, and hence they had statutory obligations to perform due diligence and block all contents that breached Indian laws.

It pointed out that the search engines used an algorithm to rank search results on web pages and that it was used as a marketing technique for the entities to gain higher page ranking against a key word search.

Since there was a limited technical know-how in the country to decode such algorithm and disable search of contentious key words, the Department of Electronics and Information Technology found it difficult to block the information based on the key word search results, which could include unlawful information.

“Such blocking/filtering on keywords or advertisements can be effectively and regularly done only by the search engines as they have access to their respective mathematical algorithms all the time,” claimed the ministry. The Ministry has further contended in its affidavit that Google, Yahoo and Microsoft should be asked by the court to provide details of measures adopted by them to block keywords and sponsored links violative of the PC-PNDT Act.

The PIL is likely to come up for hearing before the Apex Court shortly.

Apex Court seeks assistance of Solicitor General Ranjit Kumar aided by the Department of Information Technology in a writ petition seeking blocking of websites advertising pre-natal sex determination

The Apex Court on Thursday sought the assistance of Solicitor General Ranjit Kumar aided by a competent officer in the Department of Information Technology, in a writ petition seeking blocking of websites advertising pre-natal sex determination, taking into account the technical issues involved in the case. 

(The affidavit filed by the Centre, reflects a kind of helplessness on the part of the said deponent" said the Supreme Court on Thursday)

The Bench comprising of Justices Dipak Misra and U.U. Lalit, was considering the plea of the petitioner, Sabu George through his Counsel Mr. Sanjay Parikh that “despite the legal prohibition, the respondents, namely, Google India, Yahoo India and Microsoft Corporation (I) Pvt. Ltd., are still getting things advertised in violation of the legal provisions contained in the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, as amended from time to time.”

Even as the private respondents in the matter sought time to file their respective replies to the rejoinder filed by the petitioner, the Bench, before considering their request for grant of time, referred to the affidavit filed in 2010 by the Union Government to the effect that blocking sites advertising prenatal sex determination "may not be desirable" as they “provide good content for medical education”.

The relevant portion of the affidavit filed by the Group Coordinator, Cyber Laws Formulation and Enforcement Division, Government of India, Department of Information Technology on 16.08.2010 reads as follows: “The pre-natal sex determination is an offence in India under PC & PNDT Act. However, it may not be an offence in other countries. The information published on the websites is generally aimed at for wider, world wide dissemination and caters to the needs to many countries and may not be for the Indian citizens. Also, most of these websites are hosted outside the country. Blocking of such sites advertising pre-natal sex determinaton may not be feasible due to their hosting outside the country. Moreover, some of the websites provide good content for medical education and therefore blocking of such websites may not be desirable.”

Coming down heavily on the affidavit filed by the Union Government, the Bench observed that “it reflects a kind of helplessness on the part of the said deponent.”

Responding to the affidavit filed by the Centre, the petitioner’s counsel submitted that other countries have been able to control such advertisements, which violate the laws of their countries by way of entering into certain kind of agreement, developing technical tools and issuing appropriate directions. 

The Supreme Court observed that “an effort has to be made to see that nothing contrary to laws of this country are advertised or shown on these websites” But taking into account the technical issues involved, The Bench comprising of requested the Solicitor General, Mr. Ranjit Kumar, to assist the Court on the next hearing date, being assisted by a competent officer of the Department of Information and Technology.

The Bench listed the matter on December 15 for further consideration and permitted the private respondents no. 3 to 5 in the case to file their replies within a week. 

The order passed by the Apex Court in the above case can be accessed in full here