Introduction:

India currently has a ban imposed on 800 odd pornographic websites. In a recent development, the police of an Indian state (State Police) devised a tactic to keep women safe, i.e. by keeping tabs on people’s porn search history.[2] Without diving into the legality of porn ban, this article aims to discuss the legality of the act of monitoring search history in general and also the need for a law governing data protection in India.

Violation of Fundamental Rights Pursuant to Actions of State Police :

In 2017, the Supreme Court in its decision of K.S. Puttaswamy v Union of India held that the right to privacy under Article 21 of the Constitution constituted a fundamental right as a part of the right to “life” and “personal liberty”.[3] The judgment also recognized the aspect of “informational privacy” and held that information about a person and the right to access that information also needs to be given the protection of privacy.[4]

The Information Technology Rules (“IT Rules”), defines “personal information” to include any information that relates to an identified or identifiable natural person.[5]  Accordingly, it can be said that a person’s search history amounts to “personal information” as the same is unique to a person similar to his/her fingerprints.  A browser’s search history is capable of conveying information about a person, to the level of possibility of extracting his/her psychometric or demographic preferences which technically constitutes personal information.[6] Therefore, monitoring search history can be said to be privacy sensitive and a person’s browsing history should ideally be given the protection of privacy. While the right to privacy is not absolute, any restriction to the said right must adhere to the three-prong test of legality, legitimacy and necessity.[7]

In this backdrop, let us evaluate if the measure adopted by the State Police satisfies the aforesaid three prongs.

Legality: An act or a measure can be said to be legal if it has been provided for in law.[8] Section 69 of the Information Technology Act (“IT Act”) empowers the State or Central Government or any of its officers to adopt measures for monitoring if considered necessary or expedient in view of the legitimate aims listed in the section.[9] Since ‘police’ has been listed under List II of Schedule 7 of the Indian Constitution, it can be said that police is a State subject with the power to take actions that it deems necessary under Section 69 of the Act.[10] Therefore, the measure taken by the State Police to rack the browser history of persons who search for pornographic content can be said to have basis under the IT Act. However, the question that arises is searching a person’s entire browser history basis one criteria shall still be questionable.

Legitimacy: A restrictive measure may be taken if it is in pursuance of a legitimate aim.[11] Keeping in view Section 69 of the Act, a bare reading of the section suggests that measures for interception or monitoring of information may be taken only in pursuance of the legitimate aims such as maintaining public order,  investigating an offence, amongst others.[12]

  • Browsing pornographic content is not a criminal offence per se, except viewing of child pornographic content which is illegal in India. Accordingly, the actions of the State Police in the current situation to monitor browsing history which action of an individual is not an offence per se cannot be said to be a legitimate act on part of the police. While crimes against women are punishable offences, browsing of pornographic content is no offence, thus the police surveillance on data with a view to prevent such offences from happening becomes dubious.
  • A public disorder is caused when there is disruption of peace and tranquility with the aim of undermining the security of the State and overthrowing it.[13] Borrowing this understanding of public order into the law governing privacy it is difficult to understand how this measure by the State Police would help uphold public order. Thus, it can be said that private browsing of porn does not amount to any breach of public order and the measures taken by the State Police were not backed by any legitimate aims.

Necessity: Finally, a restriction may be imposed only if it is necessary in a democratic society. A pressing social need must exist and the measure in question must be proportionate to the legitimate aim sought. Multiple researches conducted suggest that the private consumption of pornography does not affect the overall treatment of women in the society.[14] There is no evidence to support the notion that porn consumption encourages crimes against women. While it is true that other fundamental rights may be preferred over an individual’s right to privacy, this can only be done if private activities like the one in question cause significant harm to others.

Conclusion:

In view of the non-fulfillment of the three prongs the State Police’ action appears to curtail an individual’s right from freely exploring and indulging in their own personal tastes and convictions.[15] As JS Mill expounds, a person’s own good, either physical or moral is not a ground for state interference into a person’s liberty.[16]    Further, the action creates a chilling effect on freedom of speech and expression, impinging the invaluable fundamental right which includes within its ambit- the right to receive information and access content on the internet.

India presently lacks laws governing the protection of personal data, resulting in measures like the one taken by the State Police. In the absence of such laws, the actions of State Police escape legal scrutiny. Such instances further highlight the need for a Personal Data Protection law in India.

[1] Shreya Sundararaman, Penultimate Year Law Student. Shreya interned at TMT Law Practice in March 2021.

[2] News 18, ‘UP Police Will Monitor Your Porn Searches in Internet History. Will it Reduce Crimes Against Women?’ (16th february 2021) URL <https://www.news18.com/news/buzz/porn-ban-tracking-up-police-womens-safety-3440225.html>.

[3] K.S. Puttaswamy v Union Of India (2017) 10 SCC 1 para 77 (“Puttaswamy”).

[4] Puttaswamy (n 2), para 54.

[5] Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules 2011, 11th April 2011, Rule 2(i).

[6] Lukasz Olejnik, Claude Castelluccia and Artur Janc, “Why Johnny Can’t Browse in Peace: On the Uniqueness of Web Browsing History Patterns. 5th Workshop on Hot Topics in Privacy Enhancing Technologies” (HotPETs 2012), Jul 2012, Vigo, Spain; Sarah Bird, Ilana Segall and  Martin Lopatka, ‘Replication: Why We Still Can’t Browse in Peace: On the Uniqueness and Identifiability of Web Browsing Histories’ URL < https://www.usenix.org/system/files/soups2020-bird.pdf>.

[7] K.S. Puttaswamy v Union Of India (2019 ) 1 SCC 1 para 835-36 (“Puttaswamy 2”).

[8] id.

[9] The Information Technology Act 2000, 09 June 2000, Section 69 (“IT Act”).

[10] Constitution of India, Seventh Schedule, List II, Entries 1 and 2.

[11] id.

[12] IT Act (n 8), Section 69.

[13] Romesh Thappar v State of Madras  AIR 1950 SC 124 para 10.

[14] Suresh Bada Math, Biju Viswanath, Ami Sebastian Maroky, Naveen C. Kumar, Anish V. Cherian, and Maria Christine Nirmala, “Sexual Crime in India: Is it Influenced by Pornography?” (2014)  Indian J of Psychol Med. 147-152; Jessica Brown, ‘Pornography is now only an internet search away, and is becoming ever more immersive. How is it changing people’s behaviour, relationships and desires?’ (BBC, 26th September 2017) URL <https://www.bbc.com/future/article/20170926-is-porn-harmful-the-evidence-the-myths-and-the-unknowns>.

[15] West, Caroline, “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), Edward N. Zalta (ed.), URL <https://plato.stanford.edu/archives/fall2018/entries/pornography-censorship/>.

[16] Gautam Bhatia, Offend, shock or disturb: Free speech under the Indian Constitution (OUP) 49-50.

Author: Ms. Shreya Sundararaman

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