Google's Sex-Selection Folly

Google is in the news again and strangely hand in hand, this time, with its arch search rivals, Yahoo and Microsoft. And for all the wrong reasons it seems. The Internet search giant’s hugely popular and successful AdWords programme (responsible for those targeted ‘sponsored links’ which you see every time your search with Google) has landed it into some unpleasant waters. Conduct a search for the phrase ‘sex-selection kit’ and you will see why. Up pops a ‘sponsored link’, promptly leading you to a website which gives you details about where one can obtain such kits, and how exactly they work, and providing free email consultations regarding how to use them. Keep in mind that Google gets paid for each time the ‘sponsored link’ is opened by a user. (For an overview of how the AdWords scheme works, click here) Keep also in mind that we live in a boy-child crazy country with a highly skewed sex ratio on account of rampant female foeticide.

A petition has been filed before the Supreme Court of India, seeking a directive to stop all forms of advertisements promoting sex-collection kits/technologies on the websites of all these search engines. [See 'The Telegraph' and 'The Hindu' reports] The petition argues that sale or promotion of such kits is against the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [hereinafter ‘the Act’]. It inter alia seeks punitive, deterrent and stringent action against the entities. A three-judge bench headed by Chief Justice KG Balakrishnan sought explanation from Google, Yahoo and Microsoft.The court also issued notice to the Centre asking why such sites should not be blocked. The government's stand on constitution of a monitoring cell to check misuse of Internet media for such illegal promotions was also sought. The case raises certain important issues, including the liability of a website owner for illegal content posted on it by third parties, the legality of advertising for sex selection kits in India etc. I have sought to provide briefly my reasons for believing that Google has indeed landed itself in a soup.

Let me first take you through the relevant provisions of the Act. Broadly, the Act provides for prohibition of sex selection, both before or after conception, and seeks to regulate pre-natal diagnostic techniques to prevent them from being misused for the purpose of sex selection. It permits the carrying on of pre-natal diagnostic techniques only by certain authorities registered under the framework of the Act. Further, such techniques can be carried out only upon the fulfillment of certain conditions, and for specific purposes mentioned in the Act itself (to detect chromosomal abnormalities, genetic metabolic defects etc.) Under no circumstances can these techniques be used for sex selection.

Google, through its actions, may have indeed trespassed on regions prohibited by the Act. I have reproduced below, the important provisions of the Act, which may criminalize the actions of Google.

Firstly, a strong case lies in prosecuting for an offence under Section 22(2) of the Act read with Section 22(3) for advertisement of sex selection techniques. Section 22 (2) states that “No person or organization…shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.” The Explanation to the Section clarifies that “advertisement includes any notice, circular, label, wrapper or any other document including advertisement through internet or any other media in electronic or print form...” Clearly a case may be made out that Google has advertised for sex-selection techniques through the internet. In this case, the punishment may extend to a term of three years imprisonment, or a fine of up to Rs. 10,000/- or both.

Apart from this, strong contentions may be put forth that Google has committed other offences under Sections 3-A & 4(5) the Act. Section 3-A states that “No person shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man…”

Furthermore, Section 4(5) states that “No person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.”

In my opinion, the actions of Google of placing ‘sponsored links’ on their website advertising certain other websites which promote the use of sex-selection kits would amount to ‘aiding in the conduct’ or ‘encouraging the conduct’ of sex selection. Essentially, the question which arises is ‘what onus does law place on the owners of websites to filter their content from the presence of illegal material?’ This question was recently answered by the Delhi High Court in its decision in the famous Bazee.com MMS sex clip controversy. [Avnish Bajaj v. State, MANU/DE/0851/2008] I quote the relevant portion of the judgment delivered by Muralidhar J. here:

“Owners or operators of websites that offer space for listings might have to employ content filters if they want to prove that they did not knowingly permit the use of their website for sale of pornographic material. Given the nature of the offence and the 'strict liability' envisaged by Section 292(1) IPC, even if for some reason the filters fail, the presumption that the owner of the website had the knowledge that the product being offered for sale was obscene would get attracted. This of course would be a rebuttable presumption. It would be open to the owner of the website to show that it took reasonable precaution to filter the listing for obscene material, this it was nevertheless placed on the website listed without its knowledge and that it took prompt corrective once it knew that the listing or the product offered for sale was obscene. But that would be a matter for evidence at the trial.” [Para 6.11]

Although that decision was given in the context of pornographic content being posted by the users of a website, the same logic will extend to the strict liability offences prescribed under the Pre-Natal Diagnostic Techniques Act too, as described above. While I am uncertain as to what kind of filtering system the Google AdWords scheme employs (or even if it adopts a filter at all), a reading of the above extract clearly suggests that Google cannot take any defense of a prima facie case alleging that it had knowledge of the presence of advertisement concerning sex-selection techniques on its website. This presumption will hold even if a filter was employed but failed to check the error. It may rebutted only if Google can demonstrate that it had removed the offensive content immediately after it was intimated of its presence on the website. As I write this post, I still get one such sponsored link on a search for ‘sex-selection’. This, in my opinion, clearly suggests inaction on the part of Google of removing the advertisement even after it has been brought to its notice.

This presumption of knowledge coupled with the fact that Google earns some revenue with each click on the advertised link, gives a strong foundation for prosecuting Google under the abovementioned provisions. It aided by assisting the person in locating the source for these kits, and encouraged by actively advocating some of the websites for gaining knowledge about sex selection techniques. In this case, the punishment may extend to a term of three months imprisonment, or a fine of Rs. 1000/- or both.

Perhaps Google must indeed seriously consider a clean up act. And quickly at that! The punishments prescribed in the Act may not seem too onerous at first blush. Nonetheless, one must keep in mind that the Act provides for the ‘automatic liability’ of directors for the offences by the Company, unless they are able to establish that they were duly diligent. This puts the pressure on the top brass of Google-India to take steps to safeguard against their personal incarceration if not anything else. Furthermore, this case raises the need for stronger filter systems to be adopted by websites which to an extent allow third parties to modify their content.