1. It is submitted by Mr Sanjay Parikh, learned counsel appearing for the petitioner that despite the legal prohibition, the respondents, namely, Google India, Yahoo India and Microsoft Corpn. (I) (P) 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. The learned counsel would submit that the Department of Electronics and Information Technology, Ministry of Communications and Information Technology and the competent authority of the Department of Health and Family Welfare are required to work harmoniously to see to it that the provisions of the 1994 Act are not violated, for that gravely affects the sex ratio in the country which has been seriously viewed by the legislature, as well as by this Court on the basis of legislation made by Parliament.
2. Mr Shyam Divan, learned Senior Counsel appearing for Respondent 3, Mr Anupam Lal Das, learned counsel appearing for Respondent 4 and Mr K.V. Vishwanathan, learned Senior Counsel appearing for Respondent 5, pray for some time to file their respective replies to the rejoinder-affidavit filed by the petitioner.
3. Before we proceed to deal with the prayer for grant of time, we think it is obligatory to take note of one aspect. The Group Coordinator, Cyber Laws Formulation and Enforcement Division, Government of India, Department of Electronics and Information Technology, had filed a counter-affidavit on 16-8-2010. We are compelled to reproduce a part of the said affidavit:
“3(e) While submitting this, it is further submitted that technological limitations pose a difficult task for providers of search engines to filter out/block the information violating the law. It is important to distinguish between two types of results that show up on a search engine:
(i) Organic search results—
When a user enters a query in the search box a list of results that are most relevant to the users' query are shown. In generating these results the search engine nearly indexes the information that is publicly available and accessible on the internet in a purely automated manner. These search results are merely a list of third-party independent websites that are beyond the control and management of search engines themselves.
(ii) Sponsored links—
Sponsored links referred to the advertisements placed by advertisers after accepting the terms and conditions of use. These links advertise the goods and services offered by any advertiser and upon clicking on the URL, take the user to the parent website of the advertiser where the user can find more information on the particular product or service that he/she is interested in.
(f) The service provider/search engines only provide the carriage, technology for indexing information. The content information is provided by others. Wherever the service provider is providing only the carriage and transmission mechanism and not the contents/information, it is necessary that the distinction needs to be made between a service provider and a content provider. The service provider can only be liable to the extent of service provided by him. Wherever the service provider/search engines are providing both carriage as well as contents, it should be their absolute responsibility to filter out/block the violated information and sponsored links.
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(s) The pre-natal sex determination is an offence in India under the Pcpndt Act. However, it may not be an offence in other countries. The information published on the websites is generally aimed at for wider, worldwide dissemination and caters to the needs of 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 determination 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.”
As we understand from the affidavit, it reflects a kind of helplessness by the said deponent. That apart, we do not appreciate the manner in which the stand has been expressed in Para (s) of the counter-affidavit, that has been reproduced hereinabove.
4. Mr Parikh, learned counsel for the petitioner, in his turn, has 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.
5. In our considered opinion, an effort has to be made to see that nothing contrary to laws of this country is advertised or shown on these websites. However, for the said purpose, we would like to have the assistance from the competent authority from the Department of Electronics and Information Technology. We would request Mr Ranjit Kumar, learned Solicitor General to assist us on the next date, being assisted by a competent officer, as it involves technical issues.
6. The learned counsel for Respondents 3 to 5 have submitted that the websites do not violate the laws of India, but as they provide a corridor, they do not have any control. Be that as it may, a legal solution has to be arrived at.
7. List the matter on 15-12-2014. As agreed by the learned counsel appearing for the parties, let the matter be taken up at 2.00 p.m. Liberty to file reply, as prayed for by the learned counsel appearing for Respondents 3 to 5, within a week hence. Call on date fixed.
Order dated 28-1-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
8. Heard Mr Sanjay Parikh, learned counsel for the petitioner; Mr Ranjit Kumar, learned Solicitor General of India; Mr Shyam Divan, learned Senior Counsel for Respondent 3; Mr Anupam Das Gupta, learned counsel for Respondent 4 and Mr Viswanathan, learned Senior Counsel for Respondent 5. All the affidavits are taken on record.
9. It is submitted by Mr Ranjit Kumar, learned Solicitor General of India, relying on the additional affidavit filed by the Union of India, that it can stop the presentation of any kind of thing that relates to sex selection and eventual abortion, if the URL and the IP 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”. It is his submission that such blocking/filtering of key words advertisements links can be effectively or regularly done by the respondents as they have access to their respective mathematical algorithms all the time. In essence, either the respondents can block themselves or on certain details being provided the Union of India can block it.
10. The learned counsel for the respondents have referred to Section 22 of the Pcpndt Act, 1994 and Section 69-A of the Information Technology Act, 2000, apart from other provisions.
11. Mr Sanjay Parikh, learned counsel appearing for the petitioners has submitted that throughout the world, the search engines have been directed to block certain service/giving of information which is not permissible to be shown in that country despite the issues of jurisdiction and technical problems being raised. He undertakes to file a convenience volume of judgments by the next date.
12. Having heard the learned counsel for the petitioner, 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 Pcpndt Act, 1994. If any advertisement is there on any search engine, the same shall be withdrawn forthwith by the respondents.
13. At this juncture, Mr Parikh, learned counsel appearing for the petitioner submitted that the order passed today shall be put on the policy page as also on the page containing “terms and conditions of service” by Respondents 4 to 6. The prayer is accepted and accordingly so directed.
14. The matters relating to total blocking of the items that have been suggested by the Union of India and providing the URL and IP addresses by Google, Yahoo and Microsoft shall be taken up on 11-2-2015 when the matter shall be taken up for further hearing.
Order dated 26-3-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
15. It is submitted by Mr Sanjay Parikh, the learned counsel appearing for the petitioner that, the order passed on 28-1-2015 is not followed by Respondents 3, 4 and 5, namely, Yahoo, Google and Microsoft inasmuch such advertisements which were prohibited by virtue of that order are still being depicted. Mr Parikh has filed a compilation indicating that till 19-2-2015, advertisements were shown by the search engines. Let the same be served on the learned counsel for the said respondents within three days from today. Response thereto be filed within a week therefrom.
16. Be it noted, the learned counsel appearing for the said respondents seriously disputed the allegations made by Mr Sanjay Parikh. Be that as it may, the said aspect shall be adverted to after the copy of the compilation is served on the learned counsel for the respondents and response thereto is filed after a week therefrom as fixed hereinabove.
17. Let the matter be listed in the last week of April 2015.
Order dated 12-5-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
18. On 28-1-2015, having heard the learned counsel for the parties, this Court had directed as follows: (See paras 8 to 14, above)
19. Thereafter, the matter was listed on certain occasions and when the writ petition was listed on 26-3-2015, it was submitted by Mr Sanjay Parikh, learned counsel appearing for the petitioner that the order passed on 28-1-2015, is not followed by Respondents 3, 4 and 5, namely, Google India, Yahoo India and Microsoft Corporation (I) (P) Ltd., inasmuch as such advertisements which are prohibited by virtue of the order are still being depicted. Be it noted, a compilation was filed by Mr Sanjay Parikh in that regard.
20. Today, Mr Sanjay Parikh has filed a compilation and apart from that he has also brought to our notice certain documents. One of the documents, as is submitted by Mr Parikh, comes under the caption “Google Shopping”. The relevant part of which reads as follows:
“Conceive a Boy or a Girl-fakih-ivf.com Ad. family-balancing.fakih-ivf.com/ Balance your family 100% accuracy. US experts based in Dubai, UAE, USA certified experts — IVF treatment pioneers — exceptional success rate
Contact us
Book appointment (En)
Location
Email our doctors
IVF Operations Dubai — Salamatak.com Ad. www.salamatak.com/IVF-ICSI We can help you with your problem get in touch for a tailored program IVF Clinics in Dubai — DoctorUna.com www.doctoruna.com/Dubai Find an IVF Clinic in Dubai and book your appointment in minutes! UAE mother who opted for gender selection warns that…. www.thenational.ae/…/uae-mother-who-opted-for-gender-selection-warn….”
21. Similarly, he has also drawn our attention to the caption “Yahoo and Microsoft”, the relevant part of which are as follows:
“Advertising and affiliates DuckDuckGo generates revenue in two ways, while upholding our privacy policy: 1. Advertising 2. Affiliate revenue Advertising: It is a myth that search engines need to track you to make money on web search. When you type in a search, we can show an ad just based on that search term. For example, if you type in, ‘car’ we show a car ad. That doesn't involve tracking because it is based on the keyword and not the person. We currently only show up to 2 ads, as opposed to the many you'll find on other search engines. Advertising on DuckDuckGo takes the form of sponsored links that appear above search results. Sponsored links are currently syndicated through Yahoo! They look like this: How to advertise on DuckDuckGo: The advertising we syndicate through Yahoo! is part of the Yahoo-Microsoft search alliance. By default, when you sign up for a Bing Ads account, your ads should automatically enter rotation into all of Bing's distribution channels including DuckDuckGo. If you'd like to double check that your ad is set up to run on DuckDuckGo perform the following: 1. When signed in to Bing Ads, click Campaigns. 2. Next, click on your campaign's name. 3. Then, click on your ad group's name. 4. Click the Settings tab. 5. Click Ad distribution. 6. Then, click Save at the bottom to finalise.”
22. It is submitted by Mr Sanjay Parikh that these are the advertisements and sponsorships and nothing else.
23. Resisting the aforesaid contentions propounded, it is submitted by Mr Shyam Divan, learned Senior Counsel, Mr Anupam Lal Das and Mr Manu Nair, learned counsel appearing for Respondents 3, 4 and 5 respectively, that the information on the internet is in the electronic platform and they have a policy relating to advertisement and, in praesenti, no advertisement with regard to sex determination/sex selection takes place. It is their submission that when there is an electronic interface, all efforts are to be made by the respondents to see that there is no violation of any provision of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, and, especially the sex determination/sex selection and that is cavil in this case. Mr Shyam Divan, learned Senior Counsel appearing for Google India has submitted that if this page has an advertisement or sponsorship or shopping, they will act in conformity with the law and keeping in view the directions passed by this Court on 28-1-2015. Needless to emphasise, if they are advertisements or sponsorships, Google India, Yahoo India and Microsoft Corporation (I) (P) Ltd., will do well to remove such things from their search engines within a week hence.
24. At this juncture, we must note a submission which has been canvassed by Mr Anupam Lal Das, learned counsel appearing for Yahoo India, Respondent 4 herein. It is contended by him that there is a “predictive test”. Elaborating the same, it is urged by him that when there are one thousand commands “boy or girl/sex determination”, search engine picks up, which is user generated and there is difficulty to stop it. We would like the competent authority of the Company to file an affidavit explaining the same as we are of the prima facie opinion that it violates the provisions of the 1994 Act.
25. We have been apprised in course of hearing that there are some third party slip-ins in the area of advertisements and should the petitioner or his counsel intimate the respondent, it shall be immediately removed if it runs contrary or counter to the provisions of the 1994 Act. Needless to say, this direction is subject to further submissions to be canvassed by the learned counsel for the parties.
26. Mr Sanjay Parikh, learned counsel appearing for the petitioner submitted that vide order dated 28-1-2015, this Court had directed to reflect the said order on the “policy page” as also on the page containing “terms and conditions of service”, but the “policy page” does not subserve the purpose and, therefore, it should be put on the “home page”. The learned counsel for the respondents pray for some time to file response to the same. Be it noted, Mr Sanjay Parikh, learned counsel, has submitted with immense concern that when it is reflected in the “home page”, there is a real warning, but when it is mentioned in the “policy page”, it does not really come within the public domain as is expected.
27. Mr Ranjit Kumar, learned Solicitor General of India appearing for the Union of India, shall also apprise about the factum whether the reflection in the “home page” is requisite to be incorporated in the order so that Respondents 3 to 5 are bound by the laws of this country.
28. Let the matter be listed on 18-8-2015. Liberty is granted to Mr Sanjay Parikh, learned counsel for the petitioner, to file additional affidavit with regard to the subsequent developments, if any.
Order dated 18-8-2015
(Before Dipak Misra and R. Banumathi, JJ.)
29. It is submitted by Mr Sanjay Parikh, learned counsel appearing for the petitioner that he has filed an affidavit on 14-8-2015, ascertaining that despite the interim order passed by this Court that there should not be any advertisement by Respondents 3 to 5, the advertisement is still carried on.
30. Mr Shyam Divan and Mr K.V. Viswanathan, learned Senior Counsel appearing for the respondents, pray for two weeks' time to file response to the said affidavit. Prayer stands allowed.
31. At this stage, Mr Sanjay Parikh has drawn our attention to a part of the order dated 12-5-2015, which reads as follows: (See para 26 above)
“26. Mr Sanjay Parikh, learned counsel appearing for the petitioners submitted that vide order dated 28-1-2015, this Court had directed to reflect the said order on the ‘policy page’ as also on the page containing ‘terms and conditions of service’, but the ‘policy page’ does not subserve the purpose and, therefore, it should be put on the ‘home page’. The learned counsel for the respondents pray for some time to file response to the same. Be it noted, Mr Sanjay Parikh, learned counsel, has submitted with immense concern that when it is reflected in the ‘home page’, there is a real warning, but when it is mentioned in the ‘policy page’, it does not really come within the public domain as is expected.”
32. Mr Ranjit Kumar, learned Solicitor General appearing for the Union of India, shall file an affidavit of the competent authority in that regard, in addition to the substantive affidavit that is required to be filed by the Union of India with regard to the affidavit filed on 14-8-2015, by the petitioner. The contesting Respondents 2 to 5 shall also file their respective affidavits in that regard.
33. Let the matter be listed after four weeks. Liberty to mention.
Court Masters