Parliament has recently taken up the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. It is aimed to make India a leader among the South Asian countries in combatting trafficking. Despite the good intentions of the government, questions are being raised by a few group of intellectuals regarding its impact on freedom of expression.
- Section 36 of the Bill aims to prescribe punishment for the promotion or facilitation of trafficking and calls upon a three year sentence for producing, publishing, broadcasting or distributing any type of material that promotes trafficking or exploitation. It is loosely worded to criminalise several unrelated activities as well.
- A phrase used in the Bill that says “any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner” has wide and ambiguous interpretations which may endanger many unconnected or even good intentioned actions as materials or actions within the ambit of the Bill. The Bill does not define the word ‘promotion’. For example, any sexual content online could be seen as ‘promoting’ trafficking of women.
- The rigorous standards with respect to trafficking are imposed on actors who may be completely unaware of such activity which opens the door for censorship and therefore it may lead to a chilling effect of any piece of art or literary work which may engage on such sensitive topics like trafficking of women.
- Section 39 proposes that any act of publishing or advertising ‘which may lead to the trafficking of a person’ as criminal in nature and hence, liable to be punished with imprisonment for 5-10 years. The excessive scope and ambiguity attached to such provisions are prone to severe abuse without any recusal or burden of proof upon the law implementing agencies.
- Similarly, it has transferred the surveillance duty of the state upon the social media platforms such as Facebook, Twitter and WhatsApp as they will be held liable for any content hosted or distributed upon their platforms.
The proposed Bill is in direct contravention of the Manila Principles on Intermediate Liability and in dissonance with the existing principles of law in India that emanate from the IT Act, 2000 which recognises online platforms as ‘safe harbours’ as long as they are mere conduits of information and expression of interests.
It is argued that intermediate monitoring in social media is not feasible as it is mostly uses technology which is end-to-end encrypted (like Whatsapp). This transfer of liability on social media platforms will be used by them to censor through blanket bans rather than careful examination of the content. Therefore, it is advisable to send the Bill to a select committee in Parliament to accommodate the concerns of relevant stakeholders to ensure a legislation that prevents human trafficking without jeopardising the right to freedom of speech and expression.
Source – Livemint
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