What Do We Talk About When We Talk About Pornography

Of all the literary forms that exists, the most neglected one remains the ‘list’. Even as we all suffer compulsively from listmania (manifested in practical to-do lists or deserted island discographies), we often remain indifferent to its creative and fantastical possibilities. But where citizens neglect, the state overcompensates and one of the defining characteristics of modern bureaucracy is its obsession with what Umberto Eco names the ‘infinity of lists’. And if there were a list of great lists then surely the circular issued by the Department of Electronics and Information Technology (DeitY) would be the latest entry.

Even the most die hard free speech advocate would find it difficult not to be impressed and perhaps even a little charmed by the list of 857 websites compiled by DeitY. A commentator on Twitter observed that his bookmarks paled in comparison with the DeitY list (an appropriate time perhaps to elevate the Deity into the God of porn things), and their naiveté would indeed have been charming were it not so misplaced.

The order issued under Section 79 (3)(b) of the Information Technology Act on the grounds of ‘morality’ and ‘decency’ directs all Internet Service Proviers (ISPs) to disable access to the websites. It is pertinent to note that it is not a blocking order per se. The power to issue orders blocking websites vests in Sec. 69A of the IT Act which reads as follows:

69A Power to issue directions for blocking for public access of any information through any computer resource. –

(1) Where the Central Government or any of its officer [sic] specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

It is clear that the grounds for blocking a website do not include decency or morality. Section 79 on the other hand is a safe harbour provision which exempts intermediaries from liability under certain condition. Sec. 79(3) removes this exemption from liability if the ISP fails to expeditiously remove or disable access to any information that has been notified by the government as illegal. But given that ISPs have generally been known to over comply with government directives the order could be treated as a blocking order for all practical purposes.

The order comes in the light of a PIL filed by Kamlesh Vaswani currently being heard by the Supreme Court. The petition seeks amongst other things a declaration that watching pornography is itself illegal. In July, the Chief Justice refused to pass any interim order on the grounds that it would be a violation of the right to privacy of citizens. There have also been previous decisions that have held that the mere consumption of pornography is not illegal though its circulation is, under the Indian Penal Code and other laws.

Explicit vs Offensive

The order has understandably been received with outrage, especially amongst people concerned about freedom of speech and expression and over regulation of the Internet by arbitrary executive orders, and it is likely that this order will be the subject of much legal and political scrutiny. But for the moment I am interested in asking the question of how we understand the purported object of regulation – Pornography.

The specialists at the Ministry – after trawling through thousands of sites and arriving at their final list – are presumably the best people to help us understand what exactly we talk about when we talk about pornography. But therein lies the problem because I suspect that the definition of pornography that they are working with would identify sexually explicit content as the criteria for defining pornography. Shohini Ghosh distinguishes between sexually explicit material and sexually offensive material, arguing that not all sexually explicit material is offensive even as you may have sexually offensive material (such as the K series on TV) which does not involve any sexually explicit depiction. This dilemma of identifying pornography is an old one and has even lent itself to a test known as the “I know it when I see it” ( a reference to a statement made by Justice Potter Stewart in the Jacobellis case claiming that he can’t define pornography but he knows it when he sees it).

But as we have established, there is no legal problem with merely seeing, it is only producing and circulating such content that is a problem. The world of pornography has historically been a large one encompassing all kinds of content and appealing to all kinds of people and tastes, and the Internet has only heightened this definitional dilemma of what constitutes pornography. The debate over pornography is by now a well established one with various nuanced positions developed over the years ranging from  anti porn feminists like Catherine McKinnon and Andrea Dworkin (who argue that there is no difference between pornography and rape – pornography is the theory and rape the action) to ‘sex positive’ feminists like Ellen Willams who have defended pornography. The question of censorship of pornography has also been a divisive one and a number of feminists who critique pornography nonetheless reject censorship as the means, claiming that the problem of patriarchy, sexism and misogyny require a more complex answer than censorship.

Conceptual clarity

It is undeniable that the prevalence of cheap technologies of video recording, the availability of spy cameras and the Internet have significantly contributed to the redefinition of pornography. If pornography largely referred to sexually explicit content that was produced commercially, the rise of amateur pornography is one of the defining features of online pornography. Even within the world of amateur pornography there is a considerable diversity ranging from revenge porn, non consensual recordings and in rare cases recordings of private sexual activities uploaded consensually. The Vaswani petition alludes to the rise of revenge and amateur pornography in India as a specific problem and much as free speech advocates disagree with what the petition asks for, it would be irresponsible not to acknowledge the seriousness of some forms of pornography.

But this is also why we need conceptual clarity about the problem that we are trying to address. For the anti porn brigade, the issue of pornography in India has always been a problem of obscenity, decency or morality, while for free speech advocates, pornography is a question of freedom of speech and expression.

Pornography, however, has never exclusively been either about morality or free speech. Abigail Levin for instance argues that the basis for regulation of pornography ought not to rest upon problematic conceptions of public morals or individual corruption, but upon constitutional fundamentals such as equality and dignity. Following Ronald Dworkin’s refinement of the core principles of liberalism, Levin suggests that the interests of freedom of speech and expression have to be weighed against the interests of equality. Thus any content that can either demonstrate a harm (non consensual, exploitative conditions even if consensual) can rightfully be regulated. This is a position that is reflected in the universally accepted stance against child pornography.

Target the degrading, dehumanizing

In India the IT Act addresses child pornography (explicit or obscene) via a specific provision and includes not just the circulation of, but also the watching of child pornography. This is not a provision that has ever been objected to by any free speech advocate because it is founded on perfectly reasonable grounds. Thus if legislature or executive were to pass an order that regulates pornography that is non consensual or because it violates equality or dignity, it would be understandable. The order of DeitY however randomly lists 857 websites (some of which may indeed be problematic while many may just be sexually explicit material) and outlaws them on the grounds of decency and morality. The moral paternalism implicit in its order is what makes it a naïve and simplistic response to a genuine problem.

It may serve Indian law makers well to move away from their US-UK obsession and turn to Canadian jurisprudence to guide them on how to talk about pornography when they talk about porn.

In its 1992 judgment in R v. Butler, the Canadian Supreme Court grounded their understanding of pornography in principles of equality and dignity, arguing that “degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation.  They run against the principles of equality and dignity of all human beings.”  The test was not based on whether members of a community were morally shocked or their sense of decency offended by sexually explicit content but whether the content or its production itself violated equality.

Once we move from moral paternalism, we will find that there is indeed a lot to talk about when we talk about pornography, its just that the conversation is not what the DeitY thinks it is.

Lawrence Liang is an advocate and the co-founder of the Bangalore Alternative Law Forum