they are “patently offensive” or “of no redeeming social value” and whether or not those involved have consented. Moreover, where those under 18 years old are concerned, sexual expression is always criminalised in India. Section 67B of the IT Act and sections 13 and 14 of the Protection of Children from Sexual Offences Act, 2012, seek to fight the production, circulation and consumption of child sexual abuse images. Unfortunately, however, the sections in their current wording also criminalise images of a sexual nature that are shared with consent by young people who are in a relationship with each other; none of the provisions provides for an exception in these cases. Such provisions criminalising all sexual expression further contribute to the portrayal of sexuality as inherently corrupting, while disregarding the importance of consent in any sexual act or in the creation, circulation and publication of images of such acts. In this way, they help to keep existing power relations and their associated conceptions of morality intact. If the writ petition of Kamlesh Vaswani currently under consideration in the Supreme Court is successful, this will only further exacerbate this situation: Vaswani has asked the court not only to ensure that all pornography will be blocked in India, but also that even watching pornography in a private place will be criminalised and will, in fact, be made a non-bailable, cognisable offence.88 For the moment, while creating, circulating or publishing pornography is illegal, its consumption in private is deemed not to be. It is notable that section 67A IT Act does not have an equivalent under any other law book in India, meaning that this crime, with its severe sentences, exists only when electronic media are used. Moreover, section 67A IT Act, too, is non-bailable and cognisable, meaning that the barriers to be charged with this crime are few. Perhaps this is what explains why the provision was slapped on a man who had tweeted a 2012 picture of Maharashtra Chief Minister Devendra Fadnavis holidaying on a yacht with his family to suggest that the Chief Minister was squandering taxpayers’ money while on an official tour to the United States in 2015.89 Where sexual expression remains largely taboo, tools to censor it lend themselves easily to misuse indeed. 88 Kamlesh Vaswani v. Union of India & Ors. WP (Civil) 177 of 2013. 89 Bose, A. (2015). A Man Just Got Arrested for Tweeting Chief Minister Devendra Fadnavis’ Family Photograph. Huffington Post. http://www.huffingtonpost.in/2015/07/11/mumbai-fadnavistwitter_n_7774592.html Intellectual property rights Intellectual property rights are governed under dedicated legislations such as the Indian Copyright Act, 1957, the Trademarks Act, 1999, the Patents Act, 1970, and amendments to these Acts. Issues of intermediary liability as they relate to intellectual property rights infringement will be addressed in the sub-section on intermediary liability, below. There have also been attempts, on occasion, to use these Acts to directly penalise speech and expression online. We earlier referred to Tata Sons Limited. v. Greenpeace International & Anr.,90 for example, in which the Tata Group sued Greenpeace, an NGO, for defamation and trademark violation when Greenpeace released an online videogame called Turtles v. TATA as part of a campaign against Tata’s port on beaches in Orissa, as the port was harming olive ridley turtles. The suit was not successful. A more common concern for free speech on the internet where India’s intellectual property rights regime is concerned is the passing of “John Doe” orders by courts. Exercising powers under section 151 of the Civil Procedure Code, courts order the blocking of named and unnamed parties, often for copyright infringement. For example, as noted earlier, when the producers of Bollywood movies Lipstick Under My Burkha and Jab Harry Met Sejal approached the Madras High Court in 2017, more than 2,600 websites were blocked as part of an injunction order for copyright infringement. The order required blocking of entire websites, and not just specific URLs that have infringing content.91 This is common in the case of “John Doe” or “Ashok Kumar” orders, in which copyright holders (often producers of Bollywood movies or owners of broadcasting rights for large-scale events) approach courts to pass blocking orders, ex parte, against named and unnamed parties who may be publishing copyrighted works of the petitioners.92 These orders have been found to affect legitimate online businesses and non-infringing websites.93 90 CS(OS) 1407/2010. 91 Joshi, D. (2017, 10 August). Madras High Court Issues ‘Ashok Kumar’ Order to Block the Internet Archive + 2649 Websites. Spicy IP. https:// www.spicyip.com/2017/08/madras-high-court-issues-ashok-kumarorder-to-block-the-internet-archive-2649-websites.html 92 The principles and procedures evolved and the justification for arraigning unnamed defendants has been argued in a series of posts by the Centre for Internet and Society. See, e.g. Padmanabhan, A. (2014, 30 January). Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 1). Centre for Internet and Society. https://cis-india.org/a2k/blogs/ john-doe-orders-isp-blocking-websites-copyright-1 93 Basheer, S. (2016, 24 August). Of Bollywood “Blocks” and John Does: Towards an IP Ombudsman? Spicy IP. https://spicyip. com/2016/08/of-bollywood-blocks-and-john-does-towards-aneutral-ombudsman.html INDIA / 65