Doctrine of Auto-block: Regulating the Search Engines

Lately, Beti Bachao Beti Padhao Yojana, (BBBP) was launched by the Honourable Prime Minister of India, an initiative by Ministry of Women and Child Development. It has been effective since January 2015. This BBBP Scheme was launched, in consequence of an alarm which was triggered by the Census of 2011, which reported 918 as the sex ratio of the child up to the age of 6 years, which has decreased from 927 in 2001, 934 in 1991, and 976 in 1961.[1]

Dr. Sabu Mathew George, filed a Public Interest Litigation, in the Apex Court, to draw the attention of the State towards, the advertisement, being promulgated electronically, for Pre-natal or Pre-conception Sex determination, by search engines within India.[2]

The above mentioned Writ Petition has been based on the violation of Section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), prohibits the advertising of the facilities available with any person, regarding the pre-natal determination of the sex or sex selection before conception. The Writ Petition highlighted the issue that three famous and widely used search engines, i.e. GOOGLE, BING, YAHOO SEARCH, are violating Section 22 of PCPNDT Act. They were involved in communication of the advertisement, though not advertising themselves.

On 16th August 2010, Cyber Laws Formulation and Enforcement Division, Government of India, Department of Information Technology, filed an affidavit with the Supreme of Court of India, with regard to differentiate between the terms “Advertisement” or “Sponsored Links” and “Organic Search Results”. In differentiating between them, it stated that ‘Organic Search Results’ emerges out of the automatic indexation of the material available on the internet, and that lies beyond the control of the search engines, while the ‘Sponsored Links’ are the advertisements which are displayed after the person, who wants to advertise, has agreed to the terms and conditions provided by the respective search engines. It further stated that, these search engines can only be liable to control the sponsored links and not the organic search results, as they only provide a corridor.

The Apex Court while rejecting the above argument, ordered on 4th December 2014, that an endeavour should be there to apply the provision of the PCPNDT Act, 1994. As a result, it demanded interference of the Government of India to control the ‘Organic Search Results’ of these search engines.Supreme Court, as a protective measure, directed on 28th January 2015, that GOOGLE, BING, YAHOO, shall not display advertisement or sponsor them, while violating Section 22 of the PCPNDT Act, 1994, and shall remove any of the existing advertisement.

Hence, to protect the sex ratio from declining, on 19th September 2016, Apex Court came out with the “Doctrine of Auto Block”, to bind, search engine companies, to block the search results, either ‘sponsored’ or ‘organic’, which would generate on the certain keywords being entered upon, which relates to the ‘pre-natal sex determination’ or ‘pre-conception sex determination’, etc. it has been invoked by Apex Court, because the companies, have denied their control over ‘organic search result’. Hence, this Doctrine covers both the ‘advertisement’ as covered under the PCPNDT Act, and other materials related which aids the gender selection.[3]

This Doctrine intends to block the application of the ‘auto-complete’ function, which helps to complete the keywords while searching for any specific thing, as suitable for the algorithm of search. ‘Doctrine of Auto Block’ invites the cooperation between Government of India and Private Companies, whose search engines, provide the corridor for the advertisements and such other related materials, which helps citizens of India, to avoid the natural selection of gender of their offspring.‘Doctrine of Auto Block’, has to be applied by the Search Engine Companies on their own, and they cannot depend on the Government, for blocking any specific, advertisement or content.

Order dated 19th September 2016, marks the failure of Central Supervisory Board created under the PCPNDT Act and Government of India, as Supreme Court which is a judicial body had to exercise its powers to apply, Doctrine of Auto Block, to block the advertisements along with the ‘related material’, which is available to the public to fulfill their mala fide motives.

The ‘Doctrine of Auto Block’ should be enshrined in the Section 69A of the Information Technology Act, 2000, which empowers the Government of India, to block the public access of any information in the interest of public order and which prevents incitement to the commission of any cognizable offence as mentioned under PCPNDT Act. Under this section, Government of India has absolute power to direct these intermediaries i.e. search engines to block such contents, whether as ‘sponsored’ or ‘organic search result’

[1] As provided by the Census of India, Ministry of Home Affairs, Government of India

[2]Sabu Mathew George v. Union of India & Ors., Writ Petition (Civil) No.341/2008

[3] Order dated 19.09.2016, Sabu Mathew George v. Union of India & Ors., Writ Petition (Civil) No.341/2008



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

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