Indian politicians have been admiring the effectiveness of the recent US censorship law, FOSTA that bans anything
adult on the internet by making websites responsible for anything that facilitates sex trafficking. As websites can't distinguish trafficking from adult consensual sex work then the internet companies are forced to ban anything to do with sex work
and even dating.
A new session of the Indian Parliament kicked off on 18 July with the introduction of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill .
There are a few problematic provisions in the proposed legislation, which may severely impact freedom of expression. For instance, Section 36 of the Bill, which aims to prescribe punishment for the promotion or facilitation of trafficking,
proposes a minimum three-year sentence for producing, publishing, broadcasting or distributing any type of material that promotes trafficking or exploitation. An attentive reading of the provision, however, reveals that it has been worded loosely
enough to risk criminalizing many unrelated activities as well.
The phrase any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner has wide amplitude, and many unconnected or even well-intentioned actions can be construed to come within its ambit as the
Bill does not define what constitutes promotion. For example, in moralistic eyes, any sexual content online could be seen as promoting prurient interests, and thus also promoting trafficking.
In July 2015, the government asked internet service providers (ISPs) to block 857 pornography websites sites on grounds of outraging morality and decency, but later rescinded the order after widespread criticism. If historical record is any
indication, Section 36 in this present Bill will legitimize such acts of censorship.
Section 39 proposes an even weaker standard for criminal acts by proposing that any act of publishing or advertising which may lead to the trafficking of a person shall be punished (emphasis added) with imprisonment for 5-10 years. In effect, the
provision mandates punishment for vaguely defined actions that may not actually be connected to the trafficking of a person at all.
Another by-product of passing the proposed legislation would be a dramatic shift in India's landscape of intermediary liability laws, i.e., rules which determine the liability of platforms such as Facebook and Twitter, and messaging services like
Whatsapp and Signal for hosting or distributing unlawful content.
Provisions in the Bill that criminalize the publication and distribution of content, ignore that unlike the physical world, modern electronic communication requires third-party intermediaries to store and distribute content. This wording can
implicate neutral communication pipeways, such as ISPs, online platforms, mobile messengers, which currently cannot even know of the presence of such material unless they surveil all their users. Under the proposed legislation, the fact that human
traffickers used Whatsapp to communicate about their activities could be used to hold the messaging service criminally liable.
YouTube has banned Erika Lust's series In Conversation with Sex Workers.
There was NO explicit content, NO sex, NO naked bodies, NO (female) nipples or anything else that breaks YouTube's strict guidelines in the series, Lust wrote on her website. It was simply sex workers speaking about their work and experiences.
Presumably the censorship is inspired by the US FOSTA internet censorship where YouTube would be held liable for content that facilitates sex trafficking. It is cheaper and easier for YouTube to take down any content that could in anyway connected
to sex trafficking than spend time checking it out.
Erika Lust, a Barcelona-based erotic filmmaker, wrote in a blog post on Wednesday that YouTube terminated her eponymous channel on July 4, when it had around 11,000 subscribers. The ban came after an interviewee for the company's series In
Conversation With Sex Workers, which had been on YouTube for about a week, tweeted to promote her involvement in the film. Within hours of that tweet the channel was terminated, citing violation of community guidelines.