Showing sex determination ads is illegal: Here is why there is no full stop to this

Why does the court have to keep reminding search engines, time and again, to stop showing these sex determination test advertisements?

The Supreme Court has put its foot down, asking search engines to adopt in-house mechanisms to identify and block advertisements for pre-natal sex determination while showing search results.

Indeed, it sounds as easy as omitting a search term, but this is more to do with advertisements than search queries or filtering the internet for the word ‘sex determination’. So with no consequences to the freedom of speech, why has Google, Yahoo and Microsoft not pulled down these advertisements? And why does the court have to keep reminding them, time and again, to stop showing these advertisements.

A quick Google search using the keywords ‘sex determination’ throws up results on the hows, whats and the whys of sex determination. Some of the results even educate you on how it’s done (various methods) and why it’s done. I however, came across no ads apart from a warning, “Pre-conception and pre-natal gender screening or testing is illegal in India.” Typing similar queries on Yahoo and Bing did not show any ads for sex-determination clinics or contacts as well.

A declining Child Sex Ratio

Gender determination has and currently still is a big deal in India. This is why the court has also directed the centre to constitute a nodal agency that will be empowered to take action not just on online media, but TV, radio and print media as well. In short, any content should not contravene with the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PNDT), 1994.

While the numbers are not confirmed, cases of female foeticide are many and older census data was a good indicator of the same, hinting at the higher prevalence of female foeticide not just in rural India, but urban India as well. While it is an ongoing debate as to whether the high sex ratios are caused by female foeticide only (or natural causes), the government indeed seems to have figured it out, and does not want to take a chance with online advertisements as well.

According to the UN Women, “India’s declining child sex ratio speaks of a culture in which gender inequality is deeply ingrained. Gender biased sex selection is a manifestation of the subordinate status of women in society, with far reaching socio-demographic consequences. Gender equality and gender justice is a direct casualty of this practice.”

So if it is such a serious matter, why are online search engines getting caught time and again?

The lack of clarity

Livemint, in a report, points out that Google is abiding by the rules. In a statement, Google told the publication, that they have always been compliant and supportive of removing paid content based on terms linked to gender selection tests. The search giant has even taken additional action to disable auto-complete predictions for relevant terms.

Yet a petitioner claims that one can see such advertisements on search websites.

Since this is not the first time that this has come up in court, the Supreme Court has now asked that the above mentioned search engines to come up with an in-house mechanism to identify and block content relating to pre-natal sex determination.

But as I found out, there is some clarity that is lacking at both ends.

Pavan Duggal, Advocate, Supreme Court of India and cyberlaw expert said that it was technically not difficult for Yahoo, Google or Microsoft to block these sex-determination advertisements from their platform. But it may require some resources.

“Any intermediary who is operating a platform is well within the control of the advertisements that run on the platform. They can have adequate parameters to have them removed or disabled in case the said advertisements are against the provisions of law,” said Duggal.

Since this is not the first time that Google, Yahoo and Microsoft have been pulled up for the same, there could be some problems down the road for these websites.

Duggal told us that as per the Intermediaries under the Information Technology (Amendment) Act 2008, “They are required to have these internal monitoring mechanisms in place.”

“Unfortunately the government has not yet notified some specific parameters in this regard. So, in the absence of stipulated regulations, most of the intermediaries say that, there is nothing that they can do.”

But with the Supreme Court pushing in the direction to ensure that these platforms don’t show these ads, Duggal believes that some action should take place.

“The Government should also come up with specific norms for intermediaries who are displaying these sex-determination tests.” he added.

With minute forms of censorship, free internet activists will have something to bite on and this exactly the move that the search engines opposed when the court directed them to filter content.

So I had to ask whether the court forcing search engines to regulate content would be an attack on free speech?

Duggal told us that we have first to appreciate how the law of free speech is dramatically different in India as compared to the US. He continued, “In India free speech is not an absolute fundamental right, it’s a relative fundamental right which can be suffixed to certain reasonable restrictions under Article 92 and therefore as part of reasonable restrictions, it’s well within the purview of law, that any person cannot be permitted to publish content in the name of free speech, which is in violation of the law.”

For now, things may not necessarily move ahead, because the foundations for the same have yet to be set in stone. But with Supreme Court pushing in this direction, there will soon be a day when these ads no longer coax users to click on them.

But the absence of ads online will not necessarily mean the end of female foeticide now will it?

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