Delhi High Court
Mrs X vs Union Of India And Ors on 26 April, 2023
Neutral Citation Number: 2023:DHC:2806
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th APRIL, 2023
IN THE MATTER OF:
+ W.P.(CRL) 1505/2021 & CRL.M.As. 12645/2021 & 811/2022
MRS X ..... Petitioner
Through: Mr. Sanjeev Mahajan, Mr.Sachin
Tandan, Advocates
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC with
Mr. Gursihar Preet Singh, Mr. Danish
Faraz Khan, Advocate for UOI.
Ms. Nandita Rao, ASC for the State
with Mr. Amit Peshwani, Ms. Aaliya
Waziri, Advocates and Inspector
Kusum Dangi, IFSO Cyber Cell,
Dwarka.
Mr. Arvind Nigam, Sr. Advocate
along with Ms. Mamta Rani Jha, Ms.
Shruttima Ehersa, Mr. Rohan Ahuja,
Mr. Vatsalya Vishal & Ms. Riya
Gupta, Advocates for R-3/Google
LLC.
Mr. Jayant Mehta, Sr. Advocate with
Ms. Anushka Sharda, Mr. Madhav
Khosla, Ms. Moha Paranjpe,
Advocates for Respondent No. 4
(Microsoft).
Mr. Debopriyo Moulik and Ms.
Shweta Chabbra, Advocates for R-10
Mr. Saurabh Kripal, Sr. Advocate
Signature Not Verified
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By:SHAZAAD ZAKIR W.P.(CRL) 1505/2021 Page 1 of 88
Signing Date:26.04.2023
17:19:50
Neutral Citation Number: 2023:DHC:2806
(Amicus Curiae) with Ms. Tanima
Gaur, Mr. Sidhant Kumar, Ms.
Manyaa Chandok, Ms. Vidhi
Udayshankar, Advocates
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The instant writ petition has been filed under Article 226 of the
Constitution of India, 1950, read with Section 482 of the Code of Criminal
Procedure (hereinafter referred to as ―Cr.P.C.‖) seeking, in a nutshell, the
blocking of certain sites exhibiting intimate images of the Petitioner herein,
and for registration of a First Information Report (FIR) arising out of the
complaint dated 03.08.2021 made by the Petitioner to Lajpat Nagar Police
Station, New Delhi.
GENESIS OF THE MATTER
2. At the outset, this Court deems it appropriate to refer to the Petitioner
as "Mrs. X" in consonance with the directions rendered by the Hon'ble
Supreme Court in Nipun Saxena v. Union of India, (2019) 2 SCC 703,
whereby it was observed that in a patriarchal society like India,
survivors/victims of sexual violence of any nature are forced to undergo
ostracization for no fault of their own. Therefore, to prevent hostile
discrimination or harassment of the survivor/victim in the future, this Court
believes it to be prudent to refer to the Petitioner herein as "Mrs. X".
3. Having stated the above, the facts, in brief, leading to the instant
petition are stated as under:
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a) It is stated that the Petitioner is a married woman with a nine-
year-old son. In December 2019, she became acquainted with
one Mr. Richesh Manav Singhal who approached her through
social media and introduced himself as a British Chartered
Accountant. It is stated that in February 2020, the Petitioner
shared her personal contact number with Mr. Singhal, and over
a period of time, the Petitioner became close to Mr. Singhal.
b) In July 2020, it is stated that as the Petitioner was living with
her son at a rented accommodation in Gurugram on account of
her job and financial constraints. Mr. Singhal took advantage of
the absence of the Petitioner's family members, came over to
her place and forced himself upon her. He allegedly not only
clicked explicit pictures of the Petitioner, but also transferred to
himself from the mobile phone of the Petitioner explicit
pictures that the Petitioner had taken of herself for the purpose
of sharing them with her husband.
c) It is stated that Mr. Singhal involved the minor son of the
Petitioner in various sexual acts as well. Consequently, the
Petitioner lodged a complaint against Mr. Singhal at the Lajpat
Nagar Police Station, and on the basis of the same, a Zero FIR
was registered with the investigation thereafter being
transferred to Gurugram. It is stated that on multiple occasions,
Mr. Singhal threatened the Petitioner that he would leak her
sexually explicit photographs on various pornographic websites
and that he would kill her son if she did not pay huge amounts
of money to him. Consequently, the Petitioner was extorted into
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paying lakhs of money to Mr. Singhal, along with handing him
all her jewellery.
d) It is stated that as the funds of the Petitioner had depleted and
she was unable to pay any more money to Mr. Singhal, he
followed through on his threats and leaked the Petitioner's
explicit images on various pornographic websites without the
consent or permission of the Petitioner. This led to the
Petitioner addressing a complaint dated 03.08.2021 against Mr.
Singhal to the SHO at Police Station Lajpat Nagar recording the
new offences. The said complaint notes that Mr. Singhal had
made a YouTube channel in the Petitioner's name, and has
been posting her explicit videos and photographs on a daily
basis.
e) Despite the Petitioner having approached the Grievance Cells
of Respondents No. 3 to 6, i.e. Google LLC, Microsoft India
Pvt. Ltd. (later replaced by Microsoft Ireland Operations Ltd.
which is the entity managing its search engine, Bing),
YouTube.com and Vimeo.com, as well as having placed
multiple complaints on cybercrime.gov.in, the explicit images
of the Petitioner were not taken down.
f) Aggrieved by the failure in the redressal processes available to
her, the Petitioner herein has approached this Court by way of
the instant writ petition for directions to the Respondents for
removal of all her non-consensual intimate images on the
internet.
4. During the course of hearing of the instant writ petition, vide Order
dated 11.08.2021, Respondent No.5 was deleted from the array of parties,
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and this Court directed for impleadment of the concerned Police Station at
Gurugram. Vide Order dated 07.09.2021, this Court informed Mr. Anurag
Ahluwalia, appearing for the Union of India, Ms. Mamta Jha, learned
Counsel appearing for Google LLC and YouTube, that the instant matter
was not adversarial in nature and that full cooperation was expected on their
part in removal of the objectionable content pertaining to the Petitioner
herein with the same being done before the next date of hearing.
5. Status Reports dated 28.08.2021 and 14.09.2021were filed on behalf
of Respondent No.2, i.e. Government of NCT of Delhi (GNCTD) with
regard to the Uniform Resource Locator (URLs) being blocked/removed.
The Status Report dated 14.09.2021 noted that all possible efforts were
being made to get the remaining active URL/links blocked/removed through
the concerned intermediaries. A Status Report dated 16.09.2021 was filed on
behalf of Respondent No.1, i.e. Union of India. Relevant portions of the said
Status Report recording the jurisdiction of the Delhi Police over matters of
the instant nature have been reproduced as under:
―3. That the Ministry of Home Affairs has launched
Cybercrime Reporting Portal (www.cybercrime.gov.in)
a central platform, to facilitate the
victims/complainants to report all types of cybercrime
complaints online.
4. That this portal allows citizens to lodge
complaints pertaining to online Child Pornography
(CP) - Child Sexually Abuse Material of sexually
explicit contents such as Rape/Gang Rape (CP/RGR)
content other cybercrimes. The citizens have an option
of reporting complaints anonymously when the
complainants do not want to disclose their identity.
They can also report the complaints as a registered
user to track the status of complaint at various stages.
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5. That the Government has also made a Toll free
Helpline number (155260) functional to help the
citizens to lodge their complaint on the Portal.
6. That the complaint reported by a citizen on the
cybercrime reporting portal (www.cybercrime.gov.in)
is routed automatically to the concerned Law
Enforcement Agency and appears in the inbox of the
concerned State/UT Nodal Officer for assigning it to
the concerned authority or Police Station for taking
further action as per the laid down law and procedure.
7. That the Ministry of Home Affairs has
designated the National Crime Record Bureau as
Central Nodal Agency to manage technical &
operational functions of the online cybercrime
reporting portal and its associated work.
8. That Delhi Police is the Law Enforcement
Agency in the instant case and they were asked to take
further necessary action to get the URLs mentioned in
para 18 of WP blocked.
9. That the Delhi Police is the agency to whom the
subject complaint is routed through the portal and has
the jurisdiction to take action; hence the actionable
information / status of blocking of all relevant URLs
must be available with Delhi Police. In order to avoid
repetition of facts before the Hon'ble Court, the Delhi
Police being a respondent in this matter may file the
same.
10. That considering the nature of subject issue and
the material facts submitted through this Affidavit, the
Hon'ble Court may graciously be pleased to accepts
the averments made above and may consider to take
response of the LEA i.e. Delhi Police as 'Police' and
'Public Order' being States subjects the issues raised
by the Petitioners are primarily related to the
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detection, investigation & prosecution, which are done
as per the provisions of law.‖
6. Thereafter, an Additional Affidavit dated 21.09.2021 was filed on
behalf of the Petitioner noting that the offending material was consistently
being reproduced and re-uploaded. On 06.10.2021, this Court was informed
by learned Counsel appearing for Google LLC that though all the offending
material had been removed from YouTube and the URLs which had been
specifically supplied were de-indexed by Google, it did not mean that it
could not be found on the internet through other search engines and that
merely directing only the search engines to de-index the links would not be
an adequate solution.
7. Due to the complexity in the nature of the matter and the fact that
consistent Orders of this Court were being frustrated, vide Order dated
06.10.2021, this Court deemed it appropriate to appoint Mr. Saurabh Kirpal,
learned Senior Counsel, as Amicus Curiae, to assist this Court on the
position of law and the extent to which this Court can issue directions to
intermediaries in such matters so as to protect the rights of the Petitioner and
other similarly situated individuals vis-à-vis the duties of the intermediaries
as well as the right to free speech. Accordingly, the scope of the instant Writ
Petition under Article 226 has been expanded, and any directions that will be
rendered will be limited to search engines, MEITY and Delhi Police.
8. A Short Affidavit dated 22.12.2021 was filed on behalf of Respondent
No.1 in the instant matter, stating that the Ministry of Electronics and
Information Technology (MEITY) is the custodian of the Information
Technology Act, 2000 (hereinafter referred to as "IT Act"). The Short
Affidavit delineates the objective and relevant provisions of the said Act as
well as the Information Technology (Intermediary Guidelines and Digital
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Media Ethics Code) Rules, 2021 (hereinafter referred to as the "IT Rules").
It notes that the IT Rules not only focus on the enhanced safety of women
and children, but that it also provides for statutory timelines for grievance
redressal and content takedown. The Short Affidavit, thereafter, goes on to
note that the prayer of the Petitioner seeking delinking/de-tagging/de-
referencing/de-indexing the name of the Petitioner would adversely affect
the freedom of speech and expression of other individuals having the same
name as the Petitioner or a similar name. The paragraphs of the Short
Affidavit stating the aforesaid are as follows:
―5. It is submitted that the Ministry of Electronics
and Information Technology (hereinafter referred to as
"MEITY") is the custodian of the Information
Technology Act, 2000 (hereinafter referred to as "IT
Act, 2000") and Rules framed thereunder.
6. It is submitted that the IT Act, 2000 contains
provisions under Sections 66E, 67 and 67A, under
Chapter XI thereof for violation of bodily privacy,
publishing or transmitting obscene material and
publishing or transmitting sexually explicit material in
electronic form respectively. It is further submitted that
Section 67B of the IT Act, 2000 provides for punishing
the publishing or transmitting of material depicting
children in sexually explicit act in electronic form.
7. It is submitted that Section 79 of the IT Act,
2000 contains safe harbor provisions for
intermediaries as defined under Section 2(1)(w)
thereof. It is further submitted that the intermediaries
must inter alia observe due diligence guidelines as
prescribed by the Central Government to ensure
exemption from liability. It is further submitted that to
ensure open, safe, trusted and accountable Internet, the
answering Respondent has notified the Information
Technology (Intermediary Guidelines and Digital
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Media Ethics Code) Rules, 2021 (hereinafter "IT
Rules, 2021") on 25.02.2021. It is further submitted
that the Part II of the IT Rules, 2021 have been framed
under Section 79 of IT Act, 2000, which relates to due
diligence to be observed by an intermediary. A copy of
IT Rules 2021 is annexed herewith and marked as
Annexure RA-1.
8. It is submitted that the answering Respondent
has recently published a Frequently Asked Questions
(FAQs) communicating the intent of the IT Rules, 2021
in simple and easy to understand language for all its
stakeholders. A copy of the Frequently Asked
Questions is annexed herewith and marked as
Annexure RA-2.
9. It is submitted that as stated hereinabove, the
legislative intent the IT Rules, 2021 is to ensure open,
safe, trusted and accountable Internet. It is further
submitted that the IT Rules, 2021 prescribe the due
diligence to be followed by all intermediaries as well
as the additional due diligence to be followed by
significant social media intermediaries (SSMI), i.e., the
intermediaries having registered user base of 50 lacs
or more in India.
10. It is submitted that the IT Rules, 2021 have been
framed to provide for increased user safety, i.e., the
intermediaries t to respond to the direct requests by the
affected individuals for content takedown in specific
cases of content relating to breach of bodily privacy,
impersonation, morphed imagery of the concerned
individual in order to address the immediate need to
prevent harm and emotional distress, particularly in
instances of revenge porn and other similar instances.
11. It is submitted that, as stated above, the IT
Rules, 2021 have a clear objective of enhancing online
safety of users, particularly women and children. It is
further submitted that various provisions of the IT
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Rules, 2021 focus on enhanced safety of women and
children. It is further submitted that these include:
―1. Specific inclusion of certain requirements to
be explicitly conveyed in terms and conditions
[Rule 3(l)(b)].
2. Reporting by the aggrieved individual in
respect of revenge porn and similar content
breaching physical privacy and taking action
within 24 hours for content removal [Rule
3(2)(b)].
3. Enhanced grievance redressal mechanism by
intermediaries [Rule 3(2)(a)].
4. Additional provision for SSMI to appoint a
Resident Grievance Officer, a Chief Compliance
Officer and a nodal contact person, all to be
residents in India; and a physical contact address
of the significant social media intermediary to be
in India [Rule 4(1) and 4(5)].
5. The Rules also have provisions that
intermediary shall cooperate with Law
Enforcement Agencies (LEA) to identify the first
originator of information related to rape and
child sexual abuse material (CSAM) imagery for
prosecution [Rule 4(2)].
6. The significant social media intermediaries
shall endeavor to deploy technology-based
measures to identify any imagery of child sexual
abuse, rape etc. whether real or simulated in
accordance with the safeguards in the Rules [Rule
4(4)].
12. It is submitted that the IT Rules, 2021 provide
for the following statutory timelines for grievance
redressal and content takedown:
1. Grievance Redressal; 24 hours for
acknowledgement and 15 days for disposal [Rule
3(2)].
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2. Information takedown from platform upon
actual knowledge based on court order or notice
from appropriate government authorised by law:
36 hours [Rule 3(1)(d)]
3. Providing information on a lawful
request: 72 hours [Rule 3(1)(j)]
4. Removal of revenge porn (sexual
extortion/non-consensual porn publication/sexual
act or conduct involving impersonation, etc.) and
other similar content: 24 hours [Rule 3(2)(b)].
13. It is submitted that in the present Petition, the
grievance(s) of the Petitioner falls under Rule 3(2)(b)
of the IT Rules, 2021 and accordingly, the Petitioner
has an efficacious remedy to approach the
intermediary directly or through any person on her
behalf including law enforcement agencies for removal
of URLs containing offending content.
14. It is submitted that the Petitioner's Prayer in
clause (B) seeking delinking/de-tagging/de-
referencing/de-indexing the name of the Petitioner
from the search engines would adversely affect on the
freedom of expression and speech of other individuals
having the same or similar name as that of the
Petitioner.
15. It is submitted that the Rule 3(2)(b) of the IT
Rules, 2021 empower the Petitioner to seek removal of
the content by submitting the information/URLs to the
intermediaries, who are obligated to remove such
content within 24 hours‖
9. Vide Status Report dated 16.03.2022, this Court was apprised of the
fact that the accused Richesh Manav Singhal and one Shweta Chhabra had
been arrested after an investigation at their residence which lead to the
discovery of more than 83,000 explicit pictures, including that of the
Petitioner herein, on one of the laptops at their residence. It was further
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found that the accused was involved in multiple other cases. Relevant
portion of the Status Report reads as under:
―Further, on the basis of information, early morning of
8.3.2022, the officer investigating the case, visited C-
2400, Suite No. 103 Sushant Lok, Gurugram, Haryana.
Richesh Manav Singhal and Shweta found present on
the above mentioned address. They were joined the
investigation and after interrogation both were
arrested in this case. A total Cash of Rs 23,99,182/-,
jewellery articles, 17 mobile and 4 laptops belong to
the accused persons were taken in police possession as
per seizure memo. The laptop and mobile phones
recovered from the accused are being forensically
examined. A large number (more than 83,000) of
objectionable photographs of various girls including
the nude photographs of the petitioner Mrs. X have
been found in one of the laptops. Further forensic
examination of the laptops and mobile phones arc
going on. It has been found tha, the accused Richesh
Manav Singhal is previously also involved in several
cases viz
1.) FIR No. 448/2016, U/s 66 A, 354D/506/509
IPC, PS Mukherjee Nagar
IPC, PS Vasant Kunj North.
Malviya Nagar,
4.) FIR No. 206/2017, U/s 354D/509 IPC PS
Timarpur,
5.) FIR No. 185/21, U/s 376,506 IPC, 8/10
POCSO Act PS Sector 56, Gurugram.
Both accused persons namely Richesh Manav Singhal
and Shweta Chhabra are on PC remand. The
Investigation is still going on. The undersigned is
ready to abide the directions passed by Hon'ble Court‖
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10. The Writ Petition, therefore, becomes infructuous. However, to ensure
that the victims like the Petitioner herein are not forced to approach the
authorities/intermediaries including the search engine repeatedly for removal
of any offending content, this Court has proceeded further so that
appropriate directions may be issued.
11. Vide Order dated 22.03.2022, this Court issued the following
directions to Respondent No.3, i.e. Google LLC, and Respondent No.4, i.e.
Microsoft India:
―1. The search engines i.e. respondent No.3/Google
LLC and respondent No.4/Microsoft India Pvt. Ltd. are
directed to file an affidavit stating the technologies
they possess, to ensure that the material which has
been directed to be removed by the competent
authority/court does not re-appear on the internet after
the same has been brought down, which could force the
complainant to repeatedly go to the law enforcing
agencies/court for the very same order. It is also
directed to disclose as to whether such a material can
be removed without any reference to specific URLs.
2. The said affidavit be filed within three weeks from
today. A copy of the same be supplied to the learned
amicus curiae.‖
12. After the Judgement was reserved in the instant matter, the learned
Amicus Curiae sought to place on record the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Amendment
Rules, 2022by way of CRL.M.A. No. 22861/2022. The same was allowed
vide Order dated 20.12.2022.
13. Non-Consensual Intimate Images (NCII) refers broadly to sexual
content that is distributed without the consent of those who are being
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depicted in the said content. This content may or may not be taken with the
consent of the individual involved, however, its dissemination is largely
meant to be non-consensual and comes under the larger umbrella of cyber-
harassment. Such distribution, more colloquially known by the term
"revenge porn", causes psychological damage to the victim and subjects
them to social ostracization and humiliation that can seriously impact the
mental health of the victim. This Court will, however, refrain from using the
term "revenge porn" as it is merely a subset of NCII and NCII encompasses
a larger number of scenarios in which such content may be distributed. The
individual whose images are shared without their consent are perceived by
the public to be deserving of the violation of their privacy and bodily
integrity. Further, the same level of gravity that is attached to a crime like
molestation/sexual harassment is not assigned to NCII abuse as the public in
general finds it difficult to conceptualize its negative impact on account of
the fact that the victim's physical person remains unharmed. However, what
such conceptualization tends to ignore is that victims of NCII abuse face
significant life disruptions, such as loss of job, being turned away by their
families, etc, which in turn radically affects their mental health. In a 2013, a
self-selected study conducted by the Cyber Civil Rights Initiative on Non-
consensual Pornography (NCP), it was found that 93% of NCII abuse
victims suffer significant social distress, 51% experience suicidal thoughts,
and 82% experience social or occupational impairment.
14. With an increasing number of cases of NCII abuse in a
simultaneously advancing digital community as well as keeping in mind that
we are currently living in the digital age where accessibility to internet is
becoming easier which is in turn leading to diverse and new forms of
violence being perpetuated, this Court deems it necessary to conduct the
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following exercise and analyse NCII abuse through the prism of the IT Act
and the Rules thereunder, as well as to carve out the roles that
intermediaries, more specifically search engines, play in not only its
distribution, but in its prevention as well.
NCII vis-à-vis the IT Act and the IT Rules
15. While NCII in itself has not been explicitly defined either in the IT
Act or the Rules thereunder, Rule 3(2)(b) of the IT Rules, which lays down
the grievance redressal mechanism that is to be followed by an intermediary,
more or less defines NCII as any content which prima facie exposes the
private area of any individual/shows such individual in full or partial
nudity/shows or depicts such individual in any sexual act or conduct/is in the
nature of impersonation in an electronic form, including artificially morphed
images. The provision has been reproduced as under:
―3(2)(b). The intermediary shall, within twenty-four
hours from the receipt of a complaint made by an
individual or any person on his behalf under this sub-
rule, in relation to any content which is prima facie in
the nature of any material which exposes the private
area of such individual, shows such individual in full
or partial nudity or shows or depicts such individual
in any sexual act or conduct, or is in the nature of
impersonation in an electronic form, including
artificially morphed images of such individual, take
all reasonable and practicable measures to remove or
disable access to such content which is hosted, stored,
published or transmitted by it.‖
(emphasis supplied)
16. However, the aforementioned definition does not mention the lack of
consent in either producing the content or in dissemination of the content.
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Further, Rule 3(2)(b) is not a charging offence. It is only under Section 66E
of the IT Act that violation of privacy of an individual is punished with
imprisonment which may extend to three years or with fine not exceeding
two lakhs, or with both. Section 66E has been reproduced as under:
―66E. Punishment for violation of privacy.-Whoever,
intentionally or knowingly captures, publishes or
transmits the image of a private area of any person
without his or her consent, under circumstances
violating the privacy of that person, shall be punished
with imprisonment which may extend to three years or
with fine not exceeding two lakh rupees, or with both.
Explanation.-For the purposes of this section-
(a) ―transmit means to electronically send a
visual image with the intent that it be viewed by a
person or persons;
(b) ―capture, with respect to an image, means to
videotape, photograph, film or record by any
means;
(c) ―private area means the naked or
undergarment clad genitals, public area, buttocks
or female breast:
(d) ―publishes means reproduction in the printed
or electronic form and making it available for
public;
(e) ―under circumstances violating privacy‖
means circumstances in which a person can have
a reasonable expectation that-
(i) he or she could disrobe in privacy,
without being concerned that an image of his
private area was being captured; or
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(ii) any part of his or her private area would
not be visible to the public, regardless of
whether that person is in a public or private
place‖
17. Explanation (a) to Section 66E clarifies that the term "transmit"
means to electronically send a visual image with the intent that it be viewed
by a person or persons; Explanation (d) states that the term "publishes"
means reproduction in the printed or electronic form and making it available
for public; and Explanation (e) notes that "under circumstances violating
privacy" means circumstances in which persons have a reasonable
expectation that they may disrobe in privacy or that any part of their private
area would not be visible to the public, regardless of whether they are in a
public or private place.
18. Further, Section 67 of the IT Act provides punishment for publishing
or transmitting of obscene material in electronic form, and the said provision
is as follows:
―67. Punishment for publishing or transmitting
obscene material in electronic form.-
Whoever publishes or transmits or causes to be
published or transmitted in the electronic form, any
material which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for
a term which may extend to three years and with fine
which may extend to five lakh rupees and in the event
of second or subsequent conviction with imprisonment
of either description for a term which may extend to
five years and also with fine which may extend to ten
lakh rupees.
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67A. Punishment for publishing or transmitting of
material containing sexually explicit act, etc., in
electronic form.-
Whoever publishes or transmits or causes to be
published or transmitted in the electronic form
any material which contains sexually explicit act
or conduct shall be punished on first conviction
with imprisonment of either description for a term
which may extend to five years and with fine
which may extend to ten lakh rupees and in the
event of second or subsequent conviction with
imprisonment of either description for a term
which may extend to seven years and also with
fine which may extend to ten lakh rupees.
67B. Punishment for publishing or transmitting of
material depicting children in sexually explicit
act, etc., in electronic form.-
Whoever,-
(a) publishes or transmits or causes to be
published or transmitted material in any
electronic form which depicts children
engaged in sexually explicit act or conduct;
or
(b) creates text or digital images, collects,
seeks, browses, downloads, advertises,
promotes, exchanges or distributes material
in any electronic form depicting children in
obscene or indecent or sexually explicit
manner; or
(c) cultivates, entices or induces children to
online relationship with one or more
children for and on sexually explicit act or in
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a manner that may offend a reasonable adult
on the computer resource; or
(d) facilitates abusing children online, or
(e) records in any electronic form own abuse
or that of others pertaining to sexually
explicit act with children,
shall be punished on first conviction with
imprisonment of either description for a term
which may extend to five years and with fine
which may extend to ten lakh rupees and in the
event of second or subsequent conviction with
imprisonment of either description for a term
which may extend to seven years and also with
fine which may extend to ten lakh rupees:
Provided that provisions of section 67, section
67A and this section does not extend to any book,
pamphlet, paper, writing, drawing, painting
representation or figure in electronic form-
(i) the publication of which is proved to be
justified as being for the public good on the
ground that such book, pamphlet, paper, writing,
drawing, painting representation or figure is the
interest of science, literature, art or learning or
other objects of general concern; or
(ii) which is kept or used for bona fide heritage or
religious purposes.
Explanation-For the purposes of this section,
―children means a person who has not
completed the age of 18 years.
67C. Preservation and retention of information by
intermediaries.-(1) Intermediary shall preserve
and retain such information as may be specified
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for such duration and in such manner and format
as the Central Government may prescribe.
(2) any intermediary who intentionally or
knowingly contravenes the provisions of sub-
section (1) shall be punished with an
imprisonment for a term which may extend to
three years and also be liable to fine.]‖
Role of intermediaries in removal of NCII vis-à-vis IT Act and IT Rules
19. NCII's presence on the internet can be traced to "originators" who are
responsible for uploading and publishing the content, and NCII's spread and
its continued existence on the internet can be attributed to "intermediaries"
that facilitate its flow and provide other users access to it. Before venturing
into the role that intermediaries play in removal of offending content from
the internet, it is imperative to reproduce the relevant provisions from the IT
Act and the IT Rules for ease of comprehension.
20. Section 2(1)(o) of the IT Act defines "data" to mean information
processed in a computer system or network in any form, including media.
Section 2(1)(v) of the IT Act defines "information" to include data, message,
text, images, sound, voice, codes, computer programmes, software and data
bases or micro film or computer generated micro fiche, and Section 2(1)(w)
of the IT Act defines "intermediary", with respect to any particular
electronic records, to mean any person who on behalf of another person
receives, stores or transmits that record or provides any service with respect
to that record and includes telecom service providers, network service
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providers, internet service providers, web-hosting service providers, search
engines, online payment sites, online-auction sites, online-market places and
cyber cafes. Section 2(1)(f) of the IT Rules defines "communication link" to
mean a connection between a hypertext or graphical element, and one or
more items in the same or different electronic document wherein upon
clicking on a hyperlinked item, the user is automatically transferred to the
other end of the hyperlink which can be another electronic record or another
website or application or graphical element.
21. Section 69A of the IT Act enlists the power of the Central
Government to issue directions for blocking for public access of any
information through any computer resource. Section 69A(3) notes that any
intermediary who fails to comply with the direction under Section 69A(1)
shall be punished with imprisonment for a term which may be extended to
seven years and also be liable to a fine. The same has been reproduced as
follows:
―69A. Power to issue directions for blocking for public
access of any information through any computer
resource.-
(1) Where the Central Government or any of its
officers specially authorised by it in this behalf is
satisfied that it is necessary or expedient so to do,
in the interest of sovereignty and integrity of
India, defence of India, security of the State,
friendly relations with foreign States or public
order or for preventing incitement to the
commission of any cognizable offence relating to
above, it may subject to the provisions of sub-
section
(2), for reasons to be recorded in writing, by
order, direct any agency of the Government or
intermediary to block for access by the public or
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cause to be blocked for access by the public any
information generated, transmitted, received,
stored or hosted in any computer resource. (2)
The procedure and safeguards subject to which
such blocking for access by the public may be
carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the
direction issued under sub-section (1) shall be
punished with an imprisonment for a term which
may extend to seven years and also be liable to
fine.‖
22. An intermediary is exempted from incurring any liability in certain
cases under Section 79 of the IT Act, which is known as the "safe harbour
provision". This provision states that an intermediary shall not be liable for
any third party information, data, or communication link made available or
hosted by him. The intermediary in question is required to observe due
diligence while discharging his duties under the Act and to also observe
such other guidelines as the Central Government may prescribe in his
behalf. Section 79(3) states that the protection under Section 79 lapses and
does not apply if the intermediary has conspired or abetted or aided or
induced, whether by threats or promise or otherwise in the commission of
the unlawful act, or if upon receiving "actual knowledge", or if the
intermediary fails to expeditiously remove or disable access to that material
on that resource without vitiating the evidence in any manner on being
notified by the appropriate Government or its agency that any information,
data or communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful act.
Section 79 of the IT Act is as under:
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―79. Exemption from liability of intermediary in
certain cases.-
(1) Notwithstanding anything contained in any
law for the time being in force but subject to the
provisions of sub-sections (2) and (3),an
intermediary shall not be liable for any third
party information, data, or communication link
made available or hosted by him.
(2) The provisions of sub-section (1) shall apply
if-
(a) the function of the intermediary is limited
to providing access to a communication
system over which information made
available by third parties is transmitted or
temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the
transmission, and
(iii) select or modify the information
contained in the transmission;
(c) the intermediary observes due diligence
while discharging his duties under this Act
and also observes such other guidelines as
the Central Government may prescribe in
this behalf.
(3) The provisions of sub-section (1) shall not
apply if-
(a) the intermediary has conspired or abetted
or aided or induced, whether by threats or
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promise or otherwise in the commission of
the unlawful act;
(b) upon receiving actual knowledge, or on
being notified by the appropriate
Government or its agency that any
information, data or communication link
residing in or connected to a computer
resource controlled by the intermediary is
being used to commit the unlawful act, the
intermediary fails to expeditiously remove or
disable access to that material on that
resource without vitiating the evidence in
any manner.
Explanation.-For the purposes of this section, the
expression ―third party information means any
information dealt with by an intermediary in his
capacity as an intermediary.‖
23. With respect to the IT Rules, Rule 3 of the IT Rules assumes
significance as it lays down due diligence that must be exercised by
intermediaries and the grievance redressal mechanism that is to be employed
by an intermediary. At this juncture, it is stated that the IT Rules have been
amended by way of Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Amendment Rules, 2022 (hereinafter referred
to as the "2022 Amendment Rules"). This Court will, thus, refer to the
amended Rule 3. Rule 3(1)(b) stipulates that the intermediary shall inform
its rules and regulations, privacy policy and user agreement to the user in
English or any language specified in the Eight Schedule to the Constitution
in the language of his choice and shall make reasonable efforts to cause the
user of its computer resource not to host, display, upload, modify, publish,
transmit, store, update or share any information that, inter alia, belongs to
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another person and to which the user does not have any right, or is obscene,
pornographic, paedophilic, invasive of another's privacy including bodily
privacy, insulting or harassing on the basis of gender, etc. It is pertinent to
note that prior to the amendment, the intermediary was merely required to
inform the user to not host, display, upload, modify, publish, transmit, store,
update or share the said content, but the amendment increases the burden on
the intermediary.
24. First proviso to Rule 3(1)(d) enlists that in the case of any prohibited
information as mentioned in Rule 3(1)(d), the intermediary is required to
remove or disable access to that information, as early as possible, but in no
case later than thirty-six hours from the receipt of the Court order or on
being notified by the Appropriate Government or its agency, as the case may
be. Furthermore, Section 3(1)(m) has been inserted in the 2022 Amendment
Rules to state that the intermediary shall take all reasonable measures to
ensure accessibility of its services to users along with reasonable expectation
of due diligence, privacy and transparency, and the newly inserted Section
3(1)(n) states that the intermediary shall respect all the rights accorded to the
citizens under the Constitution, including in Articles 14, 19 and 21.
25. Apart from knowledge of the offending information being supplied by
way of a Court order or an order of the Appropriate Government or its
agency, the IT Rules under Rule 3(2) introduces a detailed and time-bound
grievance redressal mechanism to a user or a victim to approach the
intermediary directly by making a complaint with regard to the violation of
the provisions of Rule 3 to the Grievance Officer who is then supposed to
acknowledge the complaint within twenty-four hours and then dispose of the
same within a period of fifteen days from the date of its receipt. The 2022
Amendment Rules have added a proviso to Rule 3(2)(a)(i) which states that
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if the complaint is in the nature of request for removal of information or
communication link relating to Rule 3(1)(b), except sub-clauses (i), (iv) and
(ix), the intermediary shall act upon the same as expeditiously as possible
and resolve it within seventy-two hours of such reporting.
26. Under Rule 3(2)(b) and Rule 3(2)(c), within twenty-fours from receipt
of complaint made by an individual or on their behalf in relation to content
which is prima facie in the nature of any material which exposes the private
area of such individual, shows such individual in full or partial nudity or
shows or depicts such individual in any sexual act or conduct, or is in nature
of impersonation in an electronic form, including artificially morphed
images of such individual, the intermediary is required to take all reasonable
and practicable measures to remove or disable access to such content which
is hosted, stored, published or transmitted by it. Further, the intermediary is
also required to implement a mechanism for the receipt of complaints under
Rule 3(2)(b) which may enable the individual or person to provide details, as
may be necessary, in relation to such content or communication link.
27. Rule 3 of the IT Rules has been reproduced as follows:
―3. (1) Due diligence by an intermediary: An
intermediary, including social media intermediary and
significant social media intermediary, shall observe the
following due diligence while discharging its duties,
namely:--
(a) the intermediary shall prominently publish on
its website, mobile based application or both, as
the case may be, the rules and regulations,
privacy policy and user agreement in English or
any language specified in the Eighth Schedule to
the Constitution for access or usage of its
computer resource by any person in the language
of his choice and ensure compliance of the same;
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(b) the intermediary shall inform its rules and
regulations, privacy policy and user agreement to
the user in English or any language specified in
the Eighth Schedule to the Constitution in the
language of his choice and shall make reasonable
efforts to cause the user of its computer resource
not to host, display, upload, modify, publish,
transmit, store, update or share any information
that,--
(i) belongs to another person and to which
the user does not have any right;
(ii) is obscene, pornographic, paedophilic,
invasive of another's privacy including
bodily privacy, insulting or harassing on the
basis of gender, racially or ethnically
objectionable, relating or encouraging
money laundering or gambling, or promoting
enmity between different groups on the
grounds of religion or caste with the intent to
incite violence;
(iii) is harmful to child;
(iv) infringes any patent, trademark,
copyright or other proprietary rights;
(v) deceives or misleads the addressee about
the origin of the message or knowingly and
intentionally communicates any
misinformation or information which is
patently false and untrue or misleading in
nature;
(vi) impersonates another person;
(vii) threatens the unity, integrity, defence,
security or sovereignty of India, friendly
relations with foreign States, or public order,
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or causes incitement to the commission of
any cognisable offence, or prevents
investigation of any offence, or is insulting
other nation;
(viii) contains software virus or any other
computer code, file or program designed to
interrupt, destroy or limit the functionality of
any computer resource;
(ix) violates any law for the time being in
force;
(c) an intermediary shall periodically inform its
users, at least once every year, that in case of
non-compliance with rules and regulations,
privacy policy or user agreement for access or
usage of the computer resource of such
intermediary, it has the right to terminate the
access or usage rights of the users to the
computer resource immediately or remove non-
compliant information or both, as the case may
be;
(d) an intermediary, on whose computer resource
the information is stored, hosted or published,
upon receiving actual knowledge in the form of an
order by a court of competent jurisdiction or on
being notified by the Appropriate Government or
its agency under clause (b) of sub-section (3) of
section 79 of the Act, shall not host, store or
publish any unlawful information, which is
prohibited under any law for the time being in
force in relation to the interest of the sovereignty
and integrity of India; security of the State;
friendly relations with foreign States; public
order; decency or morality; in relation to
contempt of court; defamation; incitement to an
offence relating to the above, or any information
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which is prohibited under any law for the time
being in force:
Provided that any notification made by the
Appropriate Government or its agency in
relation to any information which is
prohibited under any law for the time being
in force shall be issued by an authorised
agency, as may be notified by the
Appropriate Government:
Provided further that if any such information
is hosted, stored or published, the
intermediary shall remove or disable access
to that information, as early as possible, but
in no case later than thirty-six hours from the
receipt of the court order or on being
notified by the Appropriate Government or
its agency, as the case may be:
Provided also that the removal or disabling
of access to any information, data or
communication link within the categories of
information specified under this clause,
under clause (b) on a voluntary basis, or on
the basis of grievances received under sub-
rule (2) by such intermediary, shall not
amount to a violation of the conditions of
clauses (a) or (b) of sub-section (2) of
section 79 of the Act;
(e) the temporary or transient or intermediate
storage of information automatically by an
intermediary in a computer resource within its
control as an intrinsic feature of that computer
resource, involving no exercise of any human,
automated or algorithmic editorial control for
onward transmission or communication to
another computer resource shall not amount to
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hosting, storing or publishing any information
referred to under clause (d);
(f) the intermediary shall periodically, and at
least once in a year, inform its users in English or
any language specified in the Eighth Schedule to
the Constitution in the language of his choice of
its rules and regulations, privacy policy or user
agreement or any change in the rules and
regulations, privacy policy or user agreement, as
the case may be;
(g) where upon receiving actual knowledge under
clause (d), on a voluntary basis on violation of
clause (b), or on the basis of grievances received
under sub-rule (2), any information has been
removed or access to which has been disabled, the
intermediary shall, without vitiating the evidence
in any manner, preserve such information and
associated records for one hundred and eighty
days for investigation purposes, or for such
longer period as may be required by the court or
by Government agencies who are lawfully
authorised;
(h) where an intermediary collects information
from a user for registration on the computer
resource, it shall retain his information for a
period of one hundred and eighty days after any
cancellation or withdrawal of his registration, as
the case may be;
(i) the intermediary shall take all reasonable
measures to secure its computer resource and
information contained therein following the
reasonable security practices and procedures as
prescribed in the Information Technology
(Reasonable Security Practices and Procedures
and Sensitive Personal Information) Rules, 2011;
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(j) the intermediary shall, as soon as possible, but
not later than seventy two hours of the receipt of
an order, provide information under its control or
possession, or assistance to the Government
agency which is lawfully authorised for
investigative or protective or cyber security
activities, for the purposes of verification of
identity, or for the prevention, detection,
investigation, or prosecution, of offences under
any law for the time being in force, or for cyber
security incidents:
Provided that any such order shall be in
writing stating clearly the purpose of seeking
information or assistance, as the case may
be;
(k) the intermediary shall not knowingly deploy or
install or modify technical configuration of
computer resource or become party to any act
that may change or has the potential to change
the normal course of operation of the computer
resource than what it is supposed to perform
thereby circumventing any law for the time being
in force:
Provided that the intermediary may develop,
produce, distribute or employ technological
means for the purpose of performing the acts
of securing the computer resource and
information contained therein;
(l) the intermediary shall report cyber security
incidents and share related information with the
Indian Computer Emergency Response Team in
accordance with the policies and procedures as
mentioned in the Information Technology (The
Indian Computer Emergency Response Team and
Manner of Performing Functions and Duties)
Rules, 2013.
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(m) the intermediary shall take all reasonable
measures to ensure accessibility of its services to
users along with reasonable expectation of due
diligence, privacy and transparency;
(n) the intermediary shall respect all the rights
accorded to the citizens under the Constitution,
including in the articles 14, 19 and 21.
(2) Grievance redressal mechanism of intermediary:
(a)The intermediary shall prominently publish on
its website, mobile based application or both, as
the case may be, the name of the Grievance
Officer and his contact details as well as
mechanism by which a user or a victim may make
complaint against violation of the provisions of
this rule or any other matters pertaining to the
computer resources made available by it, and the
Grievance Officer shall -
(i) acknowledge the complaint within twenty-
four hours and resolve such complaint within
a period of fifteen days from the date of its
receipt:
Provided that the complaint in the
nature of request for removal of
information or communication link
relating to clause (b) of sub-rule (1) of
rule 3, except sub-clauses (i),(iv) and
(ix), shall be acted upon as
expeditiously as possible and shall be
resolved within seventy-two hours of
such reporting;
Provided further that appropriate
safeguards may be developed by the
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intermediary to avoid any misuse by
users;
(ii) receive and acknowledge any order,
notice or direction issued by the Appropriate
Government, any competent authority or a
court of competent jurisdiction.
(b) The intermediary shall, within twenty-four
hours from the receipt of a complaint made by an
individual or any person on his behalf under this
sub-rule, in relation to any content which is prima
facie in the nature of any material which exposes
the private area of such individual, shows such
individual in full or partial nudity or shows or
depicts such individual in any sexual act or
conduct, or is in the nature of impersonation in an
electronic form, including artificially morphed
images of such individual, take all reasonable and
practicable measures to remove or disable access
to such content which is hosted, stored, published
or transmitted by it:
(c) The intermediary shall implement a
mechanism for the receipt of complaints under
clause (b) of this sub-rule which may enable the
individual or person to provide details, as may be
necessary, in relation to such content or
communication link.‖
28. Rule 7 of the IT Rules categorically states that if any intermediary
fails to observe the rules, the safe harbour protection provided to the
intermediary under Section 79 of the IT Act will stand vitiated and the
intermediary shall stand liable for prosecution under any law for the time
being in force, including the IT Act and the Indian Penal Code, 1860.
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29. Having reproduced the relevant provisions of the IT Act and IT Rules,
we may now proceed with the role of the intermediaries. As can be
discerned from the definition of "intermediaries" as provided by Section
2(1)(w), amongst various entities, search engines also fall under the category
of intermediaries. A working paper on "Tackling the Dissemination and
Redistribution of NCII" by Centre for Communication Governance (CCG)
at National Law University, Delhi, observes that recognition of
heterogeneity in intermediary functionality is necessary to ensure proper
regulation of online content. The paper espouses that due to the
heterogenous nature of intermediaries, mandating a single approach for
removal of NCII content might prove to be ineffective. While espousing this
viewpoint, the paper defines four different types of intermediaries:
―ISPs: connect their subscribers to the internet by
supplying telecommunications facilities and equipment
such as modems and last-mile connectivity. ISPs do not
ordinarily filter or examine the data that is transmitted
on their networks, nor can they interfere with the
content by altering or removing the content they
transmit. Thus, it is impractical to require ISPs to
monitor and detect unlawful content. However, since
they control their subscribers' access to the internet,
they can block certain locations (URLs) on the internet
if directed by a government or court order. This
effectively prevents any of the ISPs' subscribers from
accessing the URL. This may be particularly useful
when websites refuse to remove unlawful content.
Websites hosting third-party content: While some
websites host their own content (eg, a news website),
other websites allow third parties (eg, ordinary users)
to upload content on their website. The latter type of
website is an ―intermediary‖ as it is hosting third-
party content. Websites may host thousands of pieces
of third-party content, and may not always be aware
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that they are hosting NCII. However, a user may
complain directly to a website (identifying NCII
content). Because websites host the third-party content,
unlike ISPs, they have the ability to remove any
unlawful content at source. Removal at source is
preferable to blocking by ISPs, as it ensures the
deletion of the content for every user on the internet,
irrespective of which ISP they use or which country
they attempt to access the content from.
Social media platforms: are similar to websites
hosting third-party content but may be distinguished by
their size and efforts to curate the content their users
see (and don't see). The Intermediary Guidelines
recognises that social media platforms with more than
five million subscribers in India (termed ‗significant
social media companies' or ―SSMIs‖) are subject to
heightened obligations vis-à-vis unlawful content. Like
websites (but unlike ISPs and search engines), SSMIs
have control over third-party content on their
platforms and can remove content at source if
necessary. Further, SSMIs proactively detect unlawful
content (including NCII) voluntarily because it is in
their commercial interests to keep their platforms free
of such
Search engines: do not themselves store and transmit
content but allow users to locate and visit content.
Search engines 'crawl' web-pages across the internet,
extracting key-words and metadata to identify the
type of content on these pages. Search engines then
'index' the extracted data to make it accessible for
future use. When a user submits a query, the search
engine matches the query against pages in its index
that likely have content useful to the user's query and
displays them. Because search engines do not
themselves host the content (such as NCII) on these
pages, they cannot take down or remove unlawful
content on websites. For the same reason, search
engines cannot proactively detect unlawful content
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like SSMIs. However, they can 'de-index' (remove
from the search engine's index) specific URLs. Once
a webpage is de-indexed, traffic to the page can be
expected to decline, as new users who do not know
the page's exact URL are unlikely to find the page
given the billions of webpages on the internet.‖
(emphasis supplied)
30. Thus, while search engines do not themselves store and transmit
content, they allow users to locate and visit content; basically, it enables
individuals to find relevant webpages already available on the internet.
Using the key-words provided by the user, a software known as ―crawlers‖
is employed to scour the internet for the content that is being searched for
and this process of crawling retrieves material in a matter of micro-seconds
that is most relevant to the user. The material that is retrieved is stored and
organized in an index which is a database of the content that has been
discovered, which can then later be retrieved when searched for by a user.
Search engines further rank the content in their order of relevance in a bid to
solve the user's query at the earliest. It is relevant to note that as search
engines do not host content per se, they cannot take down the content
available on a third-party platform, such as websites. However, they can de-
index specific URLs that can render the said content impossible to find due
to the billions of webpages available on the internet and, consequently,
reduce traffic to the said website significantly.
31. Search engines, however, cannot be categorised as social media
intermediaries [Rule 2(1)(w)] or even significant social media intermediaries
(SSMIs) [Rule 2(1)(v)] as they do not enable online interaction between two
or more users, and they do not allow the users to create, upload, share,
disseminate, modify or access information using its services. Thus, social
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media platforms such as Facebook, Twitter, and Instagram may qualify as
SSMIs, however, a search engine such as Google Search will not. This has
further been clarified in FAQ 12 issued by MEITY on Part III of the IT
Rules. By not falling under the ambit of SSMIs, search engines can, thus, be
categorised solely as intermediaries, and their obligations are only limited to
Rule 3 which is applicable to all intermediaries and not Rule 4 of the IT
Rules which provides for additional due diligence that must be observed by
SSMIs.
32. Being an intermediary simpliciter, as has been stated above, search
engines are obligated to observe due diligence while discharging its duties
under Rule 3, including making reasonable efforts to cause the user of its
computer resource not to host, display, upload, modify, publish, transmit,
store, update or share any information that is invasive of another's privacy,
including bodily privacy, and violates any law for the time being in force.
Rule 3(1)(d) states that on receiving actual knowledge in the form of a Court
order or on being notified by the Appropriate Government or its agency
under Section 79(3)(b), the search engine is required to not allow such
offending content to continue on its platform, and it shall remove or disable
access to that information as early as possible, but not later than thirty-six
hours. For information received through the grievance redressal mechanism
under Rule 3(2), the search engine is required to remove the offending
content as expeditiously as possible and resolve the complaint within
seventy-two hours of reporting. If the information is relating to content
which is prima facie in the nature of any material which exposes the private
area of such individual, shows such individual in full or partial nudity or
shows or depicts such individual in any sexual act or conduct, or is in nature
of impersonation in an electronic form, including artificially morphed
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images of such individual, the search engine is required to take all
reasonable and practicable measures to remove or disable access to such
content which is hosted, stored, published or transmitted by it. A mechanism
for reporting such content by the user/victim is also to be devised by the
intermediary in question under Rule 3(2)(c).
33. Pertinently, violation of any of this will lead to the safe harbour
protection under Section 79 being taken away, as stated in Rule 7.Section
79, which recognises the principle of secondary liability and protects
intermediaries from being held liable for content that is generated by third-
parties, is not absolute in nature. It is incumbent upon intermediaries to duly
discharge their obligations in order to avail this protection, and any lapse in
following the IT Rules [as per Section 79(2)(c) and Rule 7] can lead to the
protection accorded to it being taken away and paving the way for easy
prosecution for the intermediaries.
CONTENTIONS OF THE PARTIES
Submissions on behalf of the Amicus Curiae
34. Mr. Saurabh Kirpal, learned Amicus Curiae, has provided a short note
pursuant to the Order of this Court dated 08.11.2021 whereby this assistance
was sought, and the following submissions have been advanced by him:
a. The applicable law obliges the intermediaries in question to
take down offending content not limited to specific URLs provided
to it by the users, but to remove all offending content from the
platform under Section 79(3)(b) of the IT Act. He states that this safe
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harbour provision under Section 79is only available to intermediaries
as long as they perform their legal obligations under Section
79(3)(b).
b. Section 79(3)(b) stipulates that the obligation bestowed upon
the intermediary extends beyond taking down the content in
particular URLs and includes content that is found to be unlawful by
a judicial order. Any limitation would render the statute and its
purpose to be otiose, and thus, cannot be accepted.
c. Rule 3 of the IT Rules mandates removal of content by
intermediaries, with Rule 3(1)(b) enlisting the content that is
considered unlawful, including content that belongs to another
person and to which the user does not have any right, and content
that is invasive of another's privacy (including bodily privacy). Rule
3(1)(d) mandates the intermediary to remove unlawful content
within thirty-six hours of receiving actual knowledge of a Court
order or an order by a competent authority. Apart from a Court order
or an order by a competent authority, Rule 3(2)(b) requires
intermediaries to take down content within twenty-four hours of
receiving a complaint in relation to the offending content.
d. The ratio of Shreya Singhal v. Union of India (supra) with
regard to "actual knowledge" being construed as communication of
Court order to the intermediaries is not applicable in the instant case
as herein, the Court has already adjudicated upon the unlawfulness
of the content, and that Rule 3(2)(b) which provides for a grievance
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redressal mechanism available to the users was not before the
Supreme Court in the said case.
e. The decision of this Court in X v. Union of India (supra) in a
similar matter had already directed the Respondent-intermediaries
therein to remove the content within twenty-four hours as per Rule
3(2)(b) of the IT Rules as well as to endeavour to employ pro-active
monitoring by using automated tools, to identify and remove or
disable access to any content which is "exactly identical" to the
offending content that is subject matter of the Court order. It was
also observed by this Court that for the Order of the Court to be
effective in India, the content would have to be blocked by the
intermediary
globally.
f. The judgment of the Supreme Court in Sabu Mathew George v.
Union of India, (2018) 3 SCC 229,was relied upon to state that in the
matter therein, the Supreme Court had directed search engines to
delete advertisements pertaining to pre-natal sex determination
within thirty-six hours of being informed of the same. The Order
dated 16.02.2017 in the matter therein was passed to make search
engines responsive to Indian law.
g. Respondent intermediaries are multi-billion dollar entities
which possess vast technological and economic resources to develop
the requisite tools for removal of NCII content. Moreover, there are
existing tools for prevention of copyright infringement and child
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pornography which can be deployed to reduce NCII abuse. The
relevant portion of the Short Note recording the same has been
reproduced as under:
―21. The legal obligation to remove unlawful content
in its entirety and not just an obligation to remove
URLs having been established, the tools available to
comply with such obligation are an important
consideration. Respondent Intermediaries are multi-
billion dollar international conglomerates, possessing
vast technological and economic resources to develop
the tools and address the concerns raised in the
present proceedings. It is a matter of public record,
and as per the policies of the Respondent
Intermediaries, that content detection tools are used
for various purposes including preventing Intellectual
Property Right (IPR) infringement and child
pornography. The methods or tools presently used can
be principally divided into (I.) Audio-Video Blocking;
(II.) Image to Code Conversion; and (III.) Keyword
Search.
I. Audio-Video Blocking
22. Respondent No.5/ YouTube, which is primarily an
audio-video platform, regulates the content it hosts for,
inter alia, copyright infringement. In order to ensure
that no such infringement takes place. Respondent
No.5/ YouTube deploys its 'Content ID' system. Under
this system, the content provided by copyright owners
is by an automated system compared to all videos
hosted on the platform. This system is used by
copyright owners to identify infringing content and
require the platform to enforce its take down [Ref.
Annexure G, Pg. 346],
23. This mechanism is used to flag and identify videos
that violate copyright laws. Smart technology is used to
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identify audio recordings in uploaded videos that
infringe an individual's copyright [Ref. Annexure G,
Pg. 348). Once these videos and audios are flagged by
Respondent No.5/ YouTube, it has an option of, inter
alia, blocking the content worldwide or in some
countries/ regions [Ref. Annexure G, Pg. 348].
Therefore, tools for identifying objectionable content in
audio-video form and blocking its access exist with
Respondent No.5/ YouTube.
True copy of Respondent No.5/ YouTube's Content ID
System is annexed herewith as ANNEXURE G [Pg. 346
to 348].
24. Additionally, Respondent No.5/ YouTube's 'CSAI
(Child Sexual Abuse Imagery) Match' is its proprietary
technology for combating CSAI Match content online.
This technology allows it to identify known CSAI
content in a sea of innocent content. When a match of
CSAI content is found, it is then flagged for reporting
in accordance with local laws and regulations [Ref.
Annexure H, Pg. 349].
True copy of Respondent No.5/ YouTube's CSAI Match
Policy is annexed herewith as ANNEXURE H [Pg. 349
to 353].
25. Given the existence of technology to identify
specific videos throughout the platform, the same can
be deployed to identify the video in question in the
captioned matter. Technology similar to the aforesaid
can be used, wherein Respondent No.5/ YouTube and
other audio-video based intermediaries that host the
content in question can identify and flag it, and then
block access to the content worldwide to ensure that
the content becomes unavailable on these platforms.
II. Image to Code Conversion
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26. Respondent No.3/ Google, in its policy against
Child Sexual Abuse Material ('CSAM') states that it
deploys technology with the help of AI to ensure no
such material is accessible on the internet [Ref.
Annexure I, Pg. 355]. Respondent No.3/ Google uses
technology to deter, detect, and remove CSAM from its
platforms. This includes automated detection and
human review to detect, remove, and report CSAM on
its platforms. It deploys hash matching, including
Respondent No.5/ YouTube's CSAM Match, to detect
known CSAM.
27. Respondent No.3/ Google identifies and reports
CSAM with, inter alia, hash-matching technology,
which creates a ‗hash' code, or unique digital
fingerprint, for an image or a video so it can be
compared with hashes of known CSAM. When it finds
CSAM, it reports it to the National Center for Missing
and Exploited Children ('NCMEC'), which liaises with
law enforcement agencies around the world
Respondent No.3/ Google identifies new CSAM it may
create a hash code of the content and add it to its
internal repository. Hashing technology allows
Respondent No.3/ Google to find previously identified
CSAM by comparing it to the repository and remove it
from the platform [Ref. Annexure I, Pg. 355].
True copy of Respondent No.3/ Google's CSAM Policy
is annexed herewith as ANNEXURE I [Pg. 354 to 364].
28. This technology is also applied to video content.
Respondent No.5/ YouTube's CSAM Match
'Fingerprinter' has the ability to create a Fingerprint
file of the video, a digital ID that uniquely represents
the content of the video file. This is then compared with
Respondent No.5/ YouTube's Fingerprint repository.
The repository contains Fingerprints of known abusive
content detected by Respondent No.5/ YouTube and
Respondent No.3/ Google. Once the content is
reviewed and identified as objectionable, the same is
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eligible to be removed in accordance with local laws
and regulations [Ref. Annexure, Pg. 353].
29. This technology, which is already being used to
identify and remove CSAM content online, can be used
to identify the images and/ or videos in the captioned
matter, using the same identification algorithm. Once
the content is identified, the same can be removed from
all platforms to ensure that it becomes inaccessible to
all individuals.
30. Additionally, Respondent No.3/ Google also
deploys pattern and face recognition tools to recognize
the common patterns of shapes and colors that make
up the digital image of a face [Ref. Annexure J, Pg.
365]. Therefore, since Respondent No.3/ Google
possesses technology to detect images based on their
pattern, the same technology can be used to detect the
images of the Petitioner in the captioned matter, in
order to flag and remove them from the internet.
True copy of Respondent No.3/ Google's Pattern
Recognition Policy is annexed herewith as
ANNEXURE J [Pg. 365 to 366].
III. Keyword Searches
31. Respondent No.3/ Google, as a search engine
functions in three steps; Firstly, it continually searches
the web with automated programs called crawlers.
Crawling is a discovery process whereby Respondent
No.3/ Google uses technology (crawlers) to find new
and updated web pages on the internet. Once new web
pages are discovered, the crawlers follow links
provided on those discovered web pages to find new
URLs. This process is continued till all new URLs are
discovered. Secondly, once any new or updated URL is
found. Respondent No.3/ Google adds it to its index,
which is a massive database of discovered URLs. This
step is called indexing. Thirdly, when a search is
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conducted subsequently on the search engine, URLs
are then retrieved from this index based on the terms
searched for, location, user preferences etc., and the
best matches are displayed [Ref. Annexure K, Pg. 367,
369]. Essentially, when a user searches on Respondent
No.3/ Google, they are not searching the live web.
Instead, they search Respondent No.3/ Google's index
of the web, which it regularly updates through
crawling and indexing. Therefore, Respondent No.3/
Google, by its very nature and architecture, has the
ability to detect and block content that is adjudicated
to be unlawful and subject to takedown. True copy of
'How Google Search Works' available on
developers.google.com is annexed herewith as
ANNEXURE K [Pg. 367 to 372].
32. Respondent No.3/ Google, as a matter of policy,
deploys tools to restrict search of certain keywords on
its search engine. It blocks search results that lead to
child sexual abuse imagery or material that appears to
sexually victimize, endanger, or otherwise exploit
children. Respondent No.3/ Google constantly updates
its algorithms to combat these evolving threats and
applies extra protections to searches that it
understands are seeking CSAM content. It filters out
explicit sexual results if the search query seems to be
seeking CSAM, and for queries seeking adult explicit
content, the search will not return imagery that
includes children, to break the association between
children and sexual content. In many countries
(including India), users who enter queries clearly
related to CSAM are shown a prominent warning that
child sexual abuse imagery is illegal, with information
on how to report this content [Ref. Annexure L, Pg.
373]. . True copy of Respondent No.3/ Google's Policy
on Keyword Search is annexed herewith as
ANNEXURE L [Pg. 373].
33. Additionally, the Hon'ble Supreme Court of India
in the case of Sabu Mathew George v. Union of India
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(2017) 2 SCC 516(2) propounded the 'doctrine of auto
block', wherein intermediaries were directed to block a
proposed list of words from search results on their
platforms [Ref. Annexure M, Pg. 381, Para 9, Pg. 382
Para 10]. The Court held that when such words are
searched on search engines, the results shall be 'auto
blocked' with a warning and nothing would be
reflected on the internet, since it is prohibited under
the laws in force. The relevant portion of the judgment
is reproduced below;
"9. Mr Ranjit Kumar, learned Solicitor General at
this juncture would submit that he has been
apprised today only about the proposed list of
words" in respect of which when commands are
given, there will be "auto block" with a warning
and nothing would be reflected in the internet, as
it is prohibited in India. We think it appropriate to
reproduce the said "proposed list of words". It
reads as under;
*****
10. At this juncture, Mr C.A. Sundaram, Mr K.V.
Viswanathan, learned Senior Counsel, Mr
Anupam Lai Das, learned counsel appearing for
Google India, Microsoft Corporation (1) (P) Ltd.
and Yahoo! India, respectively, have submitted
that apart from the aforesaid words, if anyone.
taking recourse to any kind of ingenuity, feeds
certain words and something that is prohibited
under the Act comes into existence, the "principle
of auto block" shall--be immediately applied and
it shall not be shown. The learned counsel
appearing for the search engines/intermediaries
have submitted that they can only do this when it
is brought to their notice,-- considered opinion,
they are under obligation to see that the--doctrine
of auto block" is applied within a reasonable
period of time. It is difficult to accept the
submission that once it is brought to their notice ,
they will do the needful. It need not be
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overemphasised that it has to be an in-house
procedure/method to be introduced by the
Companies, and we do so direct.'" (emphasis
supplied)
True copy of the order dated 19.09.2016 passed by the
Hon'ble Supreme Court in Sabu Mathew George v
Union of India (2017) 2 SCC 516(2) is annexed
herewith as ANNEXURE M [Pg. 374 to 387].
34. In the present matter, take down orders of this
Hon'ble Court may specify key words such as name of
the victim appearing in the impugned URL.
Intermediaries must proactively thereafter take down
content contained in different URLs that is similar or
identical to the impugned URL, and block search
results bearing such keywords, in light of Respondent
No.3/ Google's keyword search policy and the decision
of the Hon'ble Supreme Court in the case of Sabu
Mathew George (supra).‖
Submissions on behalf of Google LLC
35. Mr. Arvind Nigam, learned Senior Counsel appearing for Google
LLC and YouTube, i.e. Respondent Nos.3 and 5, has made the following
submissions:
a. At the outset, all possible actions have been taken by Google to
ensure that the offending content does not remain on its index with
re-uploads being disabled and errant channels on YouTube being
removed. Google Search, the search engine of Google LCC, does not
host or publish or have any control over any content, and it merely
indexes content made available by third-parties on their
websites/platforms. It has specifically been excluded from the
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definition of an "originator" under Section 2(1)(za) of the IT Act
which is the person that generates the data being transmitted. It is
similar to a library catalogue which has no information of its own,
but merely points to the location of a particular book on a shelf.
Further, unlike Google's text-based search results, image-based
search results are more difficult to identify and retrieve, and it
involves complex software algorithms that use information about an
image as well as other information to match images to a user's
queries in an automated manner. Thus, it is futile to render directions
only to search engines and not to third-party websites which are the
primary sources of NCII content.
b. As Section 2(1)(f) of the IT Rules consciously defines a
communication link as a URL or a hyperlink, and when the same is
read harmoniously with Section 79 of the IT Act, it indicates the
legislative intent to ensure URL specific reporting. Reliance has
been placed on Shreya Singhal v. Union of India (supra) to submit
that the Supreme Court has held that intermediaries cannot be
arbiters and are not expected to adjudicate on third-parties' rights. It
is only upon receiving actual knowledge that a Court order has been
passed asking it to expeditiously remove or disable access to certain
links that the intermediary must do so. Further, even the Court order
and/or the notification by the appropriate Government or its agency
must strictly conform to the grounds specifically laid down in Article
19(2) of the Constitution of India, 1950.
c. It has never been the intention of the Legislature to task
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intermediaries with policing and monitoring of content under the
garb of "due diligence", and that Rule 3(1)(d) affirms that an
intermediary ought to take down content only upon receipt of the
Court order or order from government agency. This has been
clarified by the Executive vide FAQs dated 01.11.2021 whereby it is
stated that the communication between the authorities to the
intermediary should contain "platform specific identified URLs" and
"justification and evidence". Thus, Orders for disablement of content
have to be qua specific URLs and intermediaries are not expected to
proactively sift through unlimited content to determine its
legitimacy; their role must be neutral and not reactive [Refer to
Muskan Jattana v. Union of India, W.P.(Crl.) 956 of 2021and
Vandana Pal v. Union of India, W.P.(Crl.) 1669/2021]. Further,
proactive monitoring would lead to the intermediary losing
immunity/safe harbour protection provided under Section 79.
Moreover, this Court in Anchit Chawla v. Google India, W.P.(C)
13921/2018, has recognised that Orders only against search engines
are futile, and directions need to be passed against actual publishers
to ensure holistic removal of content. Allowing intermediaries to
apply its own mind to adjudge the legitimacy of online content will
lead to chilling free speech, over-blocking as well as circumventing
the fundamental right of online speech of third-parties. It would also
undermine the right to privacy of users, which has been recognized
by the Supreme Court, whose personal or sensitive personal
data/information would be interfered with, and it would go against
various decisions of the Supreme Court where blanket orders or pre-
censorship of content was held to be illegal.
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d. Reliance upon Sabu Mathew George v. Union of India (supra)
is misplaced as the directions therein were rendered to "Google Ads"
which is completely different from Google Search. Furthermore,
directions were rendered for constitution of a Nodal Agency to
report the content to the intermediaries who were then obligated to
act upon the same. Even Order dated 13.04.2017 in the said matter
observes that there ought to be no curtailment of access to
information and knowledge, and that a balance has to be struck.
Moreover, other Judgements of the Supreme Court, such as
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, have
categorically observed that any direction that restricts speech over
the internet has to be proportionate and the least restrictive measure
needs to be employed.
e. The IT Rules provide for a specific grievance redressal
mechanism for reporting prima facie sexually explicit content under
Rule 3(2). Rule 3(2)(c) clarifies that the mechanism for receipt of
complaints requires provision of details qua specific communication
links. Thus, directing the intermediaries to proactively filter and
remove content is outside the purview of the IT Rules and entails
casting of additional or exceptional onus on the intermediaries. The
difference in obligations of an intermediary, which is what a search
engine is, and a significant social media intermediary (SSMI) whose
duties are enumerated under Rule 4 demonstrates that absence of
proactive filtering on the part of an intermediary was a well-
deliberated decision taken by the Legislature. Even Rule 4 does not
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cast any mandatory obligation upon an SSMI to deploy automated
tools and only an endeavour is to be made towards adopting any
measures.
f. Application of tools to remove content has been discussed by
the Supreme Court in In Re: Prajwala Letter dated 18.02.2015
Videos of Sexual Violence and Recommendations, S.M.W. (Crl.)
No. 3 of 2015, but this has been limited to Child Sexual Abuse
Material (CSAM). India has entered into an Memorandum of
Understanding (MoU) with the National Centre for Missing and
Exploited Children (NCMEC) for effectively combating the menace
of CSAM content with reports being sent to the National Crime
Records Bureau (NCRB) and the Ministry of Home Affairs. For the
purposes of preventing CSAM content, automated flagging through
hash-matching and Artificial Intelligence (AI)-based tools enables
Google to act quickly and accurately to enforce its policies and rules.
However, while cognition by an AI/ML (Artificial
Intelligence/Machine Learning) tool of an image on the theme of
"explicit content with a child subject" is useful to combat CSAM, a
similar determination of "explicit content with an adult female
subject" may not prove to be useful in any manner in identifying
NCII. The factor of "consent" which is an essential ingredient for
categorization of NCII cannot be detected by automated tools.
g. Other automated tools such as pattern recognition or AV
matching are deployed for limited purposes and, thus, they cannot be
applied indiscriminately to content of third-parties on any other
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websites without any consent or permission. They have extreme
technological limitations and adverse repercussions, especially on
the exercise of free speech. As they cannot effectively distinguish
between content and they operate in an "all or nothing" framework,
there exists the possibility that they may end up jeopardizing and
removing legitimate and genuine content.
h. Unlike CSAM which is patently and universally illegal, NCII
content is dependent on the context in which it has been taken or
shared. Despite Google's best efforts to prevent the content from re-
appearing, many such content can be easily modified and thus,
evades detection. The index that is cultivated by the search engines
is only a "keyword on the page" + URL. The computer cannot
qualitatively review this information to decide whether this pertains
to the concerned subject or not. Any mandate to review such content
will devastate the efficacy of platforms and cripple delivery of
services online. There is also no obligation under law to put any
filters qua search engines.
i. Reporting mechanisms qua Google Search have been provided
by way of an Affidavit and the same has been reproduced as under:
―30. I say that the support pages and reporting
mechanisms qua Google Search are briefly
encapsulated hereinbelow, for ready reference of this
Hon'ble Court:
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i. Google search engine provides a detailed
mechanism with respect to Non-Consensual
Explicit Images (NCEI), which is explained and
can be accessed at the URL
https://support.google.com/websearch/answer/63
02812?hl=en;
ii. The specific reporting mechanism is available
at the URL
https://support.google.com/websearch/troublesho
oter/9685456#ts=28 89054%2C2889099, so that
the relevant team can review and take necessary
action as per the applicable policies. This also
includes reporting content for "doxing", i.e. the
act of publishing the contact details of a person,
with intent to harm;
iii. Pertinently, in addition to the aforesaid, users
in India may use the webform available URL at
the publicly
https://support.google.com/legal/contact/lr_idmec
for seeking removal of nudity or graphic sexual
content about an individual, and upon request,
Google may de-index these URLs thereby
removing such content from Google search
results. This is in accordance to Rule 3(2)(b) of IT
Rules 2021.A
iv. Additionally, the specific help centre article for
seeking removal of personal information is
publicly available the URL
https://support.google.com/websearch/answer/31
43948;
v. Since Google requires specific URLs to identify
any content, it also provides a detailed support
page on identifying and reporting specific URLS.
which is available at Regn. 1
https://support.google.com/webmasters/answer/63
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vi. Further, users/webmasters can also seek re-
crawling of webpages, if the content thereon has
changed. To this end, Google provides a webform
for expeditious removal of outdated information,
publicly available at the URL
https://search.google.com/search-
console/remove-outdated- content;
However, it is reiterated that search engines can
only de-index search results, whereas only the
webmasters have control on the content published
on their webpages and can remove it. For this
reason, any person willing to No content removed
at the source should request such removal to the
relevant webmaster. This is explained by Google
at the support page at the URL
https://support.google.com/websearch/answer/91
09, which also indicates how to contact the
webmaster and request a change.
31. I say that, with specific reference to India, Google
has also created a dedicated web form for government
agencies, including Law Enforcement Agencies (LEA),
to report content that may be unlawful, which is
actioned upon on priority. The same is freely and
publicly available at the URL
https://support.google.com/legal/contact/Ir_gov_india
and is routinely used by LEAs across India to report
content. Copies of the aforesaid webforms are annexed
herewith as Annexure R-5 (Colly).‖
j. With regard to YouTube, its policies on CSAM are broad and
any content related to sexual exploitation of minors is removed
immediately. A combination of people and ML is deployed to detect
problematic content at scale for detecting, reviewing, and removing
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content that violates Community Guidelines. Individual reporting can
be done anonymously by users who have come across potentially
offensive content. A Trusted Flagger Program has also been
developed that provides tools to individuals, government agencies
and Non-Governmental Organizations (NGOs) for notifying
YouTube of content that violates the Community Guidelines.
Additionally, there are reviewer teams that remove content that
violates the policies as well as age-restrict content that is not
appropriate for all audiences. Further, automated flagging systems
also exist to help identify and remove spam automatically as well as
to monitor re-uploads of already flagged content. If it is determined
by the users that the reported content is violative of the Community
Guidelines, then it is immediately removed and a notice is sent to the
uploader. All users are required to comply with all applicable laws.
k. Video-hashing technology is deployed to prevent re-uploads of
identical copies of video content that has been removed for violation
of Community Guidelines. This technology converts a particular
video into an alphanumeric hash value which functions as a
mathematically precise fingerprint of the original video. This allows
the platform to prevent re-uploads of the violative content. AI/ML
tools also exist which allows Google to prevent content that violates
its Community Guidelines or Terms of Service from being widely
viewed, or viewed at all, before it is removed. The Affidavit filed on
behalf of Google states that ―through the application of these
sophisticated technological tools, it has been possible to ensure that
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about 42% of all content removed are removed prior to the same
being viewed even for a single time‖.
l. Google has also come up with Content Safety API (Application
Programming Interface) which has been delineated in its Affidavit as
follows:
―17. It is stated that Google is actively working on AI
and ML research to solve issues pertaining to child
safety to prevent the uploading of CSAM content on its
platforms. Google recognises that detecting known
CSAM images only addresses part of the problem.
While the industry was effectively combating the
spread of known images, a solution was needed to
address the new CSAM that predators continue to
generate, so as to increase the chances of helping
minors still being victimised. With this in mind, Google
recently announced Content Safety API (Application
Programming Interface), a mechanism for sharing
groundbreaking technology with NGOs and other
industry partners, that allows for the prioritisation of
review of content likely to contain abuse -- thus
enabling those who use it to better review, report, and
takedown content that may include previously unseen
CSAM. This technology uses cutting-edge artificial
intelligence (AI) that significantly advances Google's
existing technologies to dramatically improve how
service providers, NGOs, and other technology
companies review such content at scale. By using deep
neural networks for image classification, Google can
now assist reviewers sorting through many images by
prioritising the content most likely to contain abuse.
This new technology keeps up with offenders by
targeting abuse content that may not have been seen
before. Quick identification of the new images means
that children who are being sexually abused today are
much more likely to be identified and protected from
further abuse.‖
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Submissions on behalf of Microsoft
36. Mr. Jayant Mehta, learned Senior Counsel appearing on behalf of
Microsoft Ireland Operations Ltd., i.e. Respondent No. 4, has made the
following submissions:
a. A dedicated webform is available for reporting NCII and any
member of the public may use this webform for requesting the
removal of a nude or sexually explicit image or video of themselves
that may have been shared without their consent. However, Bing
(www.bing.com), which is the search engine that is operated by
Respondent No.4, does not currently possess any technology for
automatically finding and deleting NCII, and can only remove the
content globally upon receiving notice of its existence. Further, Bing
is not a content-hosting platform and has no control over the
information published on third-party web pages. It becomes
incumbent upon the user/victim to work with webpage owners to
remove the content from the internet in its entirety.
b. Though the technology for image scanning exists, its
implementation for the purpose of automatically finding and de-
indexing NCII depends on development of a cryptographic database,
interoperability standards, and Application Programme Interfaces
(APIs) which can be used to identify duplication of NCII. Microsoft
is currently working with a cross-industry coalition of tech
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companies to put in place processes and standards for deployment of
such technology that would be beneficial to user safety.
c. The IT Rules notified on 25.02.2021 were framed pursuant to
directions of the Supreme Court, and they are a product of a lengthy
and thorough consultative process between all stakeholders which
took into account the requirement of balancing of issues of public
safety with technological advancement that has been achieved by
tech companies as of date. Certain key events that led to the
enactment of the IT Rules were a Rajya Sabha Motion dated
26.07.2018 on "Misuse of Social Media Platforms and Spreading of
Fake News" wherein the Minister for MEITY conveyed to the Upper
House the need for a stronger legal framework to make social media
platforms accountable under the law, and directions of the Supreme
Court in In Re: Prajwala Letter dated 18.02.2015 Videos of Sexual
Violence and Recommendations, S.M.W. (Crl.) No. 3 of 2015, as
per which the Government of India had been directed to consult with
intermediaries like Google, Microsoft, and WhatsApp, to formulate
guidelines pertaining to circulation child pornography, rape and gang
bang videos.
d. During the public consultation regarding the IT Rules,
comments and counter comments were invited, and it was observed
that deployment of automated filtering of content would have
harmful effects as it could lead to removal of legitimate content.
Further, requiring intermediaries to filter content would amount to
excessive and unreasonable restriction on the fundamental right to
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freedom of speech and expression. The decision to, thus, not
incorporate auto-filtering/auto-moderation by intermediaries, was a
deliberate and informed decision that was taken after weighing all
pros and cons. Additionally, Rule 3(9) of the Draft Rules which were
released on 24.12.2018 had provided for the intermediary to deploy
technology-based automated tools or appropriate mechanisms, with
appropriate controls, for proactively identifying and removing or
disabling access to unlawful information or content. However, this
Rule was deleted post the consultative process, and pro-active
filtering of any form is limited to Significant Social Media
Intermediaries (SSMIs) as under Rule 4(4) of the IT Rules. Further,
this Rule limits the obligation to actively filter to an ―endeavour‖ to
employ such measures, and is non-binding in nature.
e. Courts should refrain from interfering with rules and
regulations that are framed by the Government, and the same has
been reiterated by the Supreme Court time and again in various
judgements such as Federation of Railway Officers Association v.
Union of India, (2003) 4 SCC 289 and Dr. Ashwini Kumar v. Union
of India, (2020) 13 SCC 585. Further, interference cannot be made
in a vacuum and only on the basis of the desirability of solutions.
f. Reliance has been placed on MySpace Inc. v. Supercassettes
Industries Ltd., 2016 SCC OnLine Del 6382 to submit that the safe
harbour protection under Section 79 of the IT Act demonstrates that
the Parliament was mindful of the diligence that can be carried out
by the intermediary. However, obligating intermediaries with
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identifying infringing content from the non-infringing one would
lead to impeding free speech and privatized censorship. Further, it
would lead to the intermediary in question being liable for contempt
of Court for not being able to comply with an Order that is
impossible to perform. Thus, intermediaries may only remove
content once it receives specific instances of the same and should
refrain from doing so proactively.
Submissions on behalf of MEITY
37. Mr. Anurag Ahluwalia, learned CGSC, has advanced the following
submissions of behalf of MEITY:
a. Section 79 of the IT Act contains safe harbour provisions for
intermediaries as defined under Section 2(1)(w) and these
intermediaries must observe due diligence guidelines as prescribed
by the Central Government to ensure exemption from liability. The
IT Rules enumerates the due diligence that must be observed by all
intermediaries, including social media intermediaries and SSMIs.
These Rules have been framed for increased user safety as they now
allow users/victims to directly approach the intermediaries for
requests pertaining to content takedown in specific cases relating to
breach of bodily privacy, impersonation, morphed imagery of the
concerned individual so as to prevent harm and emotional distress,
particularly in instances of revenge porn. Statutory timelines have
also been provided for grievance redressal and content takedown.
The relevant portion from the Short Affidavit filed on behalf of
MEITY is as follows:
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―11. It is submitted that, as stated above, the IT Rules,
2021have a clear objective of enhancing online safety
of users particularly women and children. It is further
submitted that various provisions of the IT Rules, 2021
focus on enhanced safety of women and children. It is
further submitted that these include:
1. Specific inclusion of certain requirements to be
explicitly conveyed in terms and conditions [Rule
3(l)(b)].
2. Reporting by the aggrieved individual in
respect of revenge porn and similar content
breaching physical privacy and taking action
within 24 hours for content removal [Rule
3(2)(b)].
3. Enhanced grievance redressal mechanism by
intermediaries[Rule 3(2)(a)].
4. Additional provision for SSMI to appoint a
Resident Grievance Officer, a Chief Compliance
Officer and a nodal contact person, all to be
residents in India; and a physical contact address
of the significant social media intermediary to be
in India [Rule 4(1)and 4(5)].
5. The Rules also have provisions that
intermediary shall cooperate with Law
Enforcement Agencies (LEA) to identify the first
originator of information related to rape and
child sexual abuse material (CSAM) imagery for
prosecution [Rule 4(2)].
6. The significant social media intermediaries
shall endeavor to deploy technology-based
measures to identify any imagery of child sexual
abuse, rape etc. whether real or simulated in
accordance with the safeguards in the Rules [Rule
4(4)].
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12. It is submitted that the IT Rules, 2021 provide for
the following statutory timelines for grievance
redressal and content takedown:
1. Grievance Redressal; 24 hours for
acknowledgement and 15days for disposal [Rule
3(2)].
2. Information takedown from platform upon
actual knowledge based on court order or notice
from appropriate government authorised by law:
36 hours [Rule 3(1)(d)].
3. Providing information on a lawful request:
hours 72 [Rule 3(1)(j)].
4. Removal of revenge porn (sexual
extortion/non-consensual porn publication/sexual
act or conduct involving impersonation, etc.) and
other similar content: 24 hours [Rule 3(2)(b)]‖
b. Though the grievance of the Petitioner falls under Rule 3(2)(b)
of the IT Rules and the intermediary is obligated to remove the
offending content within twenty-four hours, any proactive
monitoring and removal of content will adversely affect the freedom
of speech and expression of other individuals having the same or
similar name as that of the Petitioner.
Submissions on behalf of Delhi Police
38. Ms. Nandita Rao, learned ASC (Criminal) for GNCTD, has advanced
the following suggestions on behalf of Delhi Police. The same has been
reproduced as under:
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―1. Steps being taken by Delhi Police to monitor and
prosecute offences against women and children on the
internet
(a)www.cybercrime.gov.in portal has an inbuilt feature
mechanism that automatically assists the victim/
complainant to send her complaint to the concerned
PS/ unit as per her residence.
(b)District Cyber Police Stations have been established
in each district and the same have dedicated NCMEC (
National Centre for missing and exploited Children ) /
CP RGR ( Child Pornography- Rape Gang Rape) Cell
for handling the cyber issue related to women and
children.
(c)A dedicated helpline, is functioning round the clock
to help the victim of cyber-crimes.
(d)District Cyber Cells (DCC) have been replaced with
the District Cyber Police Stations. The contact details
of each District Cyber Police Station IS available on
cybercelldelhi.in, Tatpar Delhi Police and other
websites of Delhi Police.‖
ANALYSIS AND CONCLUSIONS
39. With the advent of the internet, its increasing access to the world at
large, its ubiquity as well as with its all-encompassing nature and lack of
borders, the dissemination of unlawful content by any individual can done
with ease and without expeditious detection of the source of the same. As
our virtual identities steadily gain more importance and space, the
immortality of the internet raises questions on its impact on one's right to
privacy and right to be forgotten. The internet never forgets, and once such
content is uploaded, it becomes exceptionally difficult to control its spread.
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In cases like these, the Court must appreciate that the matter is not
adversarial in nature with no right or wrong, and the directions/guidelines
are not such that there is an element of impossibility in its implementation,
thereby frustrating the entire exercise; the aim of this exercise is to ensure
that the victim of NCII dissemination does not have to undergo any further
distress. Any solution that is provided must be deliberate and proportional,
and should not be akin to a remedy that is worse than the disease. This Court
cannot burn the house to roast the pig [Refer to decision of Supreme Court
of United States in Reno v. American Civil Liberties Union, 521 US 244].
40. As has been discussed above, intermediaries are granted protection
and are not amenable to the principle of secondary liability on account of
Section 79 of the IT Act. The principle of secondary liability denotes the
legal responsibility that must be discharged by an entity for the actions of
another. Section 79 exempts an intermediary from incurring this liability,
and the rationale behind the same is that the fundamental rights of the users
and the free flow of information on the internet must remain intact.
However, once an intermediary, upon receiving actual knowledge, or on
being notified by the appropriate Government or its agency that an unlawful
act is being committed by way of any information, data or communication
link residing in or connected to a computer resource controlled by the
intermediary, fails to remove or disable access to the said material, then
Section 79(1) shall not apply. It is only under these exceptional
circumstances that the principle of secondary liability is activated, and,
despite NCII abuse being perpetuated by a third-party user and causing harm
to a stranger, the intermediary becomes liable for the conduct of the third-
party user. Further, the IT Rules also devise a mechanism for the user/victim
to directly approach intermediaries for removal of NCII content without
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having to obtain a Court order. Therefore, apart from making its own
reasonable efforts in not publishing offending content, intermediaries can be
requested to takedown offending content after being informed by a Court
order or by an order of the appropriate Government or by the user
themselves.
NCII and Right to Privacy
41. The Court order or order of the appropriate Government or its agency
has to be in pursuance of the infringement of any law for the time being in
force. In the instant case, not only does uploading of NCII lead to a clear
violation of the provisions of the IT Act and IT Rules, it is also a violation of
the right to privacy which is a sacrosanct aspect of Article 21 of the
Constitution of India as held by a 9-Judge Bench of the Supreme Court in
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. In the said
Judgement, the Supreme Court observed that privacy has distinct
connotations, including decisional autonomy which comprehends intimate
personal choices and informational control which empowers an individual to
retain control over information pertaining to the individual. It would be
appropriate at this juncture to reproduce the relevant paragraphs describing
the various aspects of privacy:
―248. Privacy has distinct connotations including (i)
spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, ―The Four
Parts of Privacy in India‖, Economic & Political
Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial
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control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal
choices such as those governing reproduction as well
as choices expressed in public such as faith or modes
of dress. Informational control empowers the
individual to use privacy as a shield to retain personal
control over information pertaining to the person. With
regard to informational privacy, it has been stated
that:
―... perhaps the most convincing conception is
proposed by Helen Nissenbaum who argues that
privacy is the expectation that information about
a person will be treated appropriately. This
theory of ―contextual integrity‖ believes people
do not want to control their information or
become inaccessible as much as they want their
information to be treated in accordance with their
expectation (Nissenbaum 2004, 2010, 2011)‖. [
Bhairav Acharya, ―The Four Parts of Privacy in
India‖, Economic & Political Weekly (2015), Vol.
50 Issue 22, at p. 34]
*****
250. ..... The nine primary types of privacy are,
according to the above depiction:
(i) bodily privacy which reflects the privacy of the
physical body. Implicit in this is the negative freedom
of being able to prevent others from violating one's
body or from restraining the freedom of bodily
movement;
(ii) spatial privacy which is reflected in the privacy of a
private space through which access of others can be
restricted to the space; intimate relations and family
life are an apt illustration of spatial privacy;
(iii) communicational privacy which is reflected in
enabling an individual to restrict access to
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communications or control the use of information
which is communicated to third parties;
(iv) proprietary privacy which is reflected by the
interest of a person in utilising property as a means to
shield facts, things or information from others;
(v) intellectual privacy which is reflected as an
individual interest in the privacy of thought and mind
and the development of opinions and beliefs;
(vi) decisional privacy reflected by an ability to make
intimate decisions primarily consisting one's sexual or
procreative nature and decisions in respect of intimate
relations;
(vii) associational privacy which is reflected in the
ability of the individual to choose who she wishes to
interact with;
(viii) behavioural privacy which recognises the privacy
interests of a person even while conducting publicly
visible activities. Behavioural privacy postulates that
even when access is granted to others, the individual is
entitled to control the extent of access and preserve to
herself a measure of freedom from unwanted intrusion;
and
(ix) informational privacy which reflects an interest in
preventing information about the self from being
disseminated and controlling the extent of access to
information.‖
42. An individual's right to exercise control over their personal data has
also been recognised by the Supreme Court in K.S. Puttaswamy v. Union of
India (supra). It was observed therein that while it is not an absolute right,
this right to exercise control over personal data would also encompass an
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individual's right to control their existence on the internet. The following
observation was made:
―629. The right of an individual to exercise control
over his personal data and to be able to control
his/her own life would also encompass his right to
control his existence on the internet. Needless to say
that this would not be an absolute right. The
existence of such a right does not imply that a
criminal can obliterate his past, but that there are
variant degrees of mistakes, small and big, and it
cannot be said that a person should be profiled to the
nth extent for all and sundry to know."
43. This right to privacy is also inextricably linked with the right to live a
life with dignity. As noted in Section 66E of the IT Act as well, individuals
have a reasonable expectation to privacy which is not lost within the
confines of a domestic relationship, or even if any intimate image is shared
with another person with the understanding and the expectation that the
same will not be shared with third persons. The context in such situations
matter with privacy being the expectation that information about an
individual will be treated appropriately and in accordance with the
individual's expectations; it is the said individual who retains control over
any information pertaining to themselves. As a corollary, if the individual
has the right to informational privacy, it also subsumes the individual's right
to be forgotten which has been held to be the consequence of the dignity of
an individual and, thus, a facet of the right to privacy.
44. A Division Bench of the Kerala High Court has recently in Vysakh
K.G. v. Union of India and Ors., 2022 SCC OnLine Ker 7337, while
adjudicating upon right to privacy vis-à-vis right to information, referred to
Cécile de Terwangne's paper on "Internet Privacy and Right to be
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Forgotten/Right to Oblivion" to state that ―in the context of the Internet this
dimension of privacy means informational autonomy or informational self-
determination...Information self-determination means the control over one's
personal information, the individual's right to decide which information will
be disclosed, to whom and for what purpose‖. The Judgement goes on to
observe that, in the digital context, the "right to delisting" and "right to
oblivion" are facets of the right to be forgotten.
45. The argument that has been advanced by the learned Senior Counsel
appearing for the Respondent intermediaries is that as search engines merely
provide access to content and are not responsible for hosting the said
content, directions must be rendered to the publishers and not the search
engines themselves. It is at this stage that a search engine's role in ensuring
that one's right to privacy is not contravened comes into prominence,
especially with Rule 3(1)(m) which states that the intermediary shall respect
all the rights accorded to the citizens under the Constitution, including
Articles 14, 19 and 21. It is further essential to state that the continued
existence of NCII content on the internet does not serve any public interest
and it is punishable under Section 66E of the IT Act. The argument,
therefore, put forth on behalf of the Respondent intermediaries is not
acceptable to this Court.
Social Responsibility of Search Engines
46. The duty and the liability of a search engine has been expounded in
Judgement of the Court of Justice of the European Union (CJEU) in Google
Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Case C-
131/12, wherein the Plaintiff's grievance was that a Google Search of his
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name retrieved links to newspaper articles on his insolvency proceedings.
The CJEU held that the role played by a search engine is such that it can
significantly affect the fundamental rights to privacy and protection of
personal data, and thus, a search engine must ensure that, within the
framework of its responsibilities, powers and capabilities, its activities must
comply with the law which would be rendered ineffective without its
compliance. The CJEU also recognised the "right to be forgotten" and held
that if the user's request was found to be in consonance with the law, then it
was incumbent upon the search engine to remove the links in question as the
law would supersede the search engine's financial interests as well as the
interest of the general public in accessing that information. The relevant
portion of the Press Release No. 70/2014 on the said Judgement issued in
the English language by the Court of Justice of European Union at
Luxembourg on 13.05.2014 reads as under:
―The Court further holds that the operator of the
search engine is the ‗controller' in respect of that
processing, within the meaning of the directive, given
that it is the operator which determines the purposes
and means of the processing. The Court observes in
this regard that, inasmuch as the activity of a search
engine is additional to that of publishers of websites
and is liable to affect significantly the fundamental
rights to privacy and to the protection of personal data,
the operator of the search engine must ensure, within
the framework of its responsibilities, powers and
capabilities, that its activity complies with the
directive's requirements. This is the only way that the
guarantees laid down by the directive will be able to
have full effect and that effective and complete
protection of data subjects (in particular of their
privacy) may actually be achieved.
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As regards the directive's territorial scope, the Court
observes that Google Spain is a subsidiary of Google
Inc. on Spanish territory and, therefore, an
‗establishment' within the meaning of the directive.
The Court rejects the argument that the processing of
personal data by Google Search is not carried out in
the context of the activities of that establishment in
Spain. The Court holds, in this regard, that where such
data are processed for the purposes of a search engine
operated by an undertaking which, although it has its
seat in a non-member State, has an establishment in a
Member State, the processing is carried out ‗in the
context of the activities' of that establishment, within
the meaning of the directive, if the establishment is
intended to promote and sell, in the Member State in
question, advertising space offered by the search
engine in order to make the service offered by the
engine profitable.
So far as concerns, next, the extent of the
responsibility of the operator of the search engine, the
Court holds that the operator is, in certain
circumstances, obliged to remove links to web pages
that are published by third parties and contain
information relating to a person from the list of
results displayed following a search made on the
basis of that person's name. The Court makes it clear
that such an obligation may also exist in a case where
that name or information is not erased beforehand or
simultaneously from those web pages, and even, as
the case may be, when its publication in itself on
those pages is lawful.
The Court points out in this context that processing of
personal data carried out by such an operator enables
any internet user, when he makes a search on the basis
of an individual's name, to obtain, through the list of
results, a structured overview of the information
relating to that individual on the internet. The Court
observes, furthermore, that this information potentially
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concerns a vast number of aspects of his private life
and that, without the search engine, the information
could not have been interconnected or could have been
only with great difficulty. Internet users may thereby
establish a more or less detailed profile of the person
searched against. Furthermore, the effect of the
interference with the person's rights is heightened on
account of the important role played by the internet
and search engines in modern society, which render
the information contained in such lists of results
ubiquitous. In the light of its potential seriousness,
such interference cannot, according to the Court, be
justified by merely the economic interest which the
operator of the engine has in the data processing.
However, inasmuch as the removal of links from the
list of results could, depending on the information at
issue, have effects upon the legitimate interest of
internet users potentially interested in having access to
that information, the Court holds that a fair balance
should be sought in particular between that interest
and the data subject's fundamental rights, in particular
the right to privacy and the right to protection of
personal data. The Court observes in this regard that,
whilst it is true that the data subject's rights also
override, as a general rule, that interest of internet
users this balance may however depend, in specific
cases, on the nature of the information in question and
its sensitivity for the data subject's private life and on
the interest of the public in having that information, an
interest which may vary, in particular, according to the
role played by the data subject in public life.
Finally, in response to the question whether the
directive enables the data subject to request that links
to web pages be removed from such a list of results on
the grounds that he wishes the information appearing
on those pages relating to him personally to be
'forgotten' after a certain time, the Court holds that,
if it is found, following a request by the data subject,
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that the inclusion of those links in the list is, at this
point in time, incompatible with the directive, the
links and information in the list of results must be
erased. The Court observes in this regard that even
initially lawful processing of accurate data may, in
the course of time, become incompatible with the
directive where, having regard to all the
circumstances of the case, the data appear to be
inadequate, irrelevant or no longer relevant, or
excessive in relation to the purposes for which they
were processed and in the light of the time that has
elapsed. The Court adds that, when appraising such a
request made by the data subject in order to oppose
the processing carried out by the operator of a search
engine, it should in particular be examined whether
the data subject has a right that the information in
question relating to him personally should, at this
point in time, no longer be linked to his name by a list
of results that is displayed following a search made
on the basis of his name. If that is the case, the links
to web pages containing that information must be
removed from that list of results, unless there are
particular reasons, such as the role played by the data
subject in public life, justifying a preponderant
interest of the public in having access to the
information when such a search is made."
(emphasis supplied)
47. In another ruling of the CJEU in Google LLC v. Commission
Nationale de l'informatique et des libertés (CNIL, Case C-507/2017, it was
observed that it was for the search engine operator to take, if necessary,
sufficiently effective measures to ensure the effective protection of the
fundamental rights of the data subject (user/victim). These measures were
required to meet all legal requirements and ―must have the effect of
preventing or, at the very least, seriously discouraging internet users in the
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Member States from gaining access to the links in question using a search
conducted on the basis of that data subject's name‖.
48. However, in Da Cunha v. Yahoo de Argentina SRL and Another,
Expte. N 561/2010, a case about defamatory search results, the Supreme
Court of Justice of Argentina recognised that intermediary liability regimes
in the European Union and the United States also accord immunity to
intermediaries which remains contingent upon disabling of illegal content
upon obtaining "actual knowledge" of the specific violation. They are,
however, under no duty of general monitoring or policing of third-party
data, and using filters to block search results would amount to prior
censorship.
49. Closer to home, in Vysakh K.G. v. Union of India and Ors. (supra),
the Kerala High Court has succinctly observed that Google cannot be said to
be content-blind to publications made online and it is not a mere passive
conduit. Rejecting the lack of liability as professed by the learned Counsel
appearing for Google, the Kerala High Court observed as follows:
―98. We are not called upon here to determine the
responsibility or liability of Google for publishing
judgments online in terms of the Intermediary Rules.
The publication of the judgments online and allowing
the same to remain online forever may infringe upon
the right of a party based on the right to be forgotten.
We have already adverted to the nature of a right that
can be claimed as a right to be forgotten. If the
judgments of the Court are allowed to remain online
for eternity, certainly, it would invade such rights of
the parties. The problem that has arisen in the absence
of legislation is determining the period or
circumstances under which a party can invoke the
aforesaid right. We are not remaining oblivious to this
fact. A litigant may in the future, approach this Court
to remove online content. In the absence of legislation,
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the Court may have to recognise his right and direct
removal of such content available online on a case-to-
case basis. The contention by the learned counsel for
Google that they are only an intermediary and they are
not liable for the contents or publication of the
judgments, no doubt, the said contention has to be
upheld. We are not here to decide upon compliance or
non-compliance with the Intermediary Rules. The
argument of the learned Central Government Counsel
that Google has to be treated as an intermediary and
therefore has to follow the Intermediary Rules does not
require meritorious consideration in these cases. We
are called upon, in these cases, to decide on the points
involved qua fundamental rights claimed by the
petitioners. Irrespective of these rules, the State and
non-State actors are bound to respect the fundamental
rights of the citizens. There is no difficulty in
identifying Google as a non-State actor by its nature of
function and operation which could have an impact on
the socio, cultural, economic and political life of the
citizen. They are qualified to be identified as a non-
State actor. Even in the OECD Guidelines for Multi-
national Enterprises, guiding principles on business
and human rights, an enterprise like Google is liable
as a non State actor for human rights violation. Google
is incorporated in the United States of America and
OECD is an intergovernmental organisation of which
US is also a party. The Guidelines aim to promote
positive contributions by enterprises to economic,
environmental and social progress worldwide. [See
OECD Guidelines for Multi-national Enterprises, 2011
Edition]. Further, there is no difficulty in holding that
the claim based on fundamental rights can be enforced
horizontally. However, the judgments are public
records and, making them available to the public to
view through the process of a search made online,
cannot be found fault with. At the same time, we cannot
hold that Google is content blind to the publications
made online; can they allow any prohibited nature of
content to appear online? For example, paedophilic
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content. An algorithm means a set of procedures used
for solving a problem or performing a computation. In
the era of artificial intelligence, it is quite possible for
Google to identify the nature of the content and remove
the same. Google is not a mere passive conduit. They
are now using AI tools to identify the needs and
requirements of a user online and attempting to bring
out the best results in what they are looking for online.
Keeping aside the Intermediary Rules etc., we are of
the firm view that Google cannot claim itself as a mere
intermediary, allowing the contents to appear for the
viewers or users in the digital platform. The
publication of any valid records is protected by the
Constitution as forming part of Article 19(1)(a), the
right to freedom of speech and expression. There is no
difficulty for Google during the era of advancement of
AI to create a tool and identify particular data and
remove the same. If that is not done, it would really
infringe the claim based on the right to be forgotten.‖
50. A review Petition, being R.P. No.107/2023, was preferred by Google
Incorporation which was one of the Respondents, against the
aforementioned judgment. Vide Order dated 30.03.2023, the Division Bench
of the Kerala High Court observed as under:
―4. The above rule also requires Google to remove
contents based on a Court order. In light of the above,
it is clear that our observations do not run contrary to
the statutory scheme. The further observation that
Google can deploy AI tools to identify and locate data
can be construed as only a suggestion and in no way
would demand Google to deploy AI tools to identify
such data. These are all matters which will have to be
decided in future in the absence of any legislation, in
appropriate litigation. These observations having no
consequences, we find no reason to expunge the
observations from the judgment. Review petitions are
accordingly disposed of.‖
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It is necessary to note that the observations in R.P. No. 107/2023 shall have
no bearing on the directions and the guidelines stipulated in the instant
matter for the reason that the newly amended Rule 3 explicitly pronounces
the obligation of the intermediary to not only "inform", but to make
"reasonable efforts" to ensure that its users do not publish content that is
prohibited under Rule 3(1)(b). Thus, any directions given herein fall
squarely within the statutory regime with regard to obligations of
intermediaries.
51. In a paper by L.M. Hinman on "Searching Ethics: The Role of Search
Engines in the Construction and Distribution of Knowledge", it has been
stated that with the increasing importance and pervasiveness of search
engines, it can be found that search engines can no longer be said to be just
providing access to knowledge, but are playing a central role in the
constitution of knowledge itself. Users of search engines are increasingly
dependent on search engines to filter through the ever-expanding universe of
online data. Its pervasiveness is such that the very term "Google" is now
used as a verb and is synonymous with "search". As a result, the mere de-
indexing of an URL has an incremental impact on protecting one's right to
be forgotten as it makes it almost impossible for someone to access the
offending material if they are already not in possession of the specific URLs.
52. What can be culled out from the aforesaid legal literature is that a
search engine plays an important role in the dissemination of content and its
powers in connecting the said content to the consumers is undeniable. When
viewed in this light, it is unfathomable as to how a search engine can feign
helplessness when it comes to removal of or disabling access to links which
prima facie contain content that is illegal as declared by the Court. There
resides a social obligation in these intermediaries to be proactive in de-
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indexing such links when it comes to its knowledge that such content is
illegal. This Court finds the suggestion untenable that the user/victim must
approach either the intermediary in question or the Courts every single time
the NCII content is duplicated. Such a suggestion also frustrates the
legislative intent behind the IT Rules which devises a time-bound schedule
in removal of such content. An approach that entails the victim/user having
to sift through the internet to identify and then share every URL hosting
their NCII is unconscionable in the eyes of this Court.
Offending Entities Possess the Requisite Technology
53. Moreover, search engines cannot hide under the garb of not
possessing the adequate technology to remove NCII content which has been
reported without the victim/user having to approach the intermediary again
and again. As per the Affidavit of Google LLC, hash-matching technology,
which generates a unique identifier/fingerprint/hash, exists for the purpose
of removing CSAM. This technology further allows detection and removal
of the matched content that has previously been removed. For the purposes
of removal of NCII, once such content has been identified and removed, the
hash-matching technology can store only the unique identifier pertaining to
the NCII content and in the event that such content is re-uploaded, it can
filter out the same by going through its database of such fingerprints. A
similar tool has already been built by Meta, available on www.stopncii.org
to curtail the spread of NCII, and it can be used by the victim to create a
unique fingerprint of the offending image which is stored in the database to
prevent re-uploads. The tool is meant to compare this fingerprint (or hash)
with the hashes of all the other images available on the site; if any image is
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found to be identical, it is taken down. Microsoft has also developed a
software by the name of Photo DNA which is currently being used to
identify CSAM and is also being used by platforms such as Google and
Twitter, and the database of the hashes generated is maintained by an
independent organisation. YouTube has also developed CSAI (Child Sexual
Abuse Imagery) Match which is used by NGOs and other companies to
identify against the database of known abusive content
54. Flowing from the above, while this Court is of the opinion that
entities of the nature of Google and Microsoft, considering their ubiquity,
cannot abscond or withdraw from their duties to the public at large in the
name of reducing the liability they might incur, this Court is inclined to
agree with the submissions of the learned Senior Counsel appearing for
Google and Microsoft that any direction that necessitates pro-active filtering
on the part of intermediaries may have a negative impact on the right to free
speech. No matter the intention of deployment of such technology, its
application may lead to consequences that are far worse and dictatorial.
Is Right to Free Speech Being Violated ?
55. One of the concerns that arises when we consider the right to privacy
of an individual under Article 21 is its impact on the right to freedom of
expression and speech under Article 19(1)(a) which is an argument that has
been posed by all parties in the instant matter. This issue requires an
interpretation of the phrase "such content" in Rule 3(2)(b) and whether the
same means a specific instance of identified NCII, as has been contended by
the intermediaries, or all such content of identical nature, as submitted by
the learned Amicus Curiae. This Court is of the opinion that construing the
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phrase "such content" as "all content" is necessary to reduce the burden on
the user/victim, however, "all content", access to which is to be disabled,
must pertain to NCII abuse that has already been reported. Further, it is
pertinent to note that unlike copyright infringement [as was the issue in
MySpace Inc. v. Supercassettes Industries Ltd. (supra)], defamation, etc.,
NCII content conveys a higher degree of harm in society.
56. In a Judgement of this Court in X v. Union of India, W.P.(Crl.) 1082
of 2020, a direction had been given to all intermediaries by the learned
Single-Judge Bench to engage in proactive monitoring and removal of NCII
content that the Court had deemed to be illegal. There is currently an appeal
pending against the said Judgement, however, no stay has been granted, and
thus, the Order is still in operation. The working paper published by CCG
records the risks that overbroad directions may pose, however, the viability
of the directions in the said Judgement is of no consequence in the instant
matter as the directions and suggestions being issued herein are restricted to
search engines only. The relevant portion of the working paper is as under:
―Proactive monitoring for NCII content: In 2021, a
Single Judge of the Delhi High Court attempted to
address the problem of re-uploading of known NCII by
stipulating that all intermediaries must engage in the
proactive monitoring and removal of NCII that the
Court had previously determined to be illegal.16 Such
mandatory monitoring obligations create significant
free speech and privacy risks as intermediaries must
monitor all users to identify those uploading unlawful
content.17 Such automated filtering has also been
demonstrated to disproportionately restrict lawful
expression by individuals from racial and linguistic
minorities.18 Imposing a monitoring requirement on
all intermediaries could lead to more content removal,
but not necessarily better content removal, resulting in
the removal of lawful speech. Therefore, curbing the
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redistribution of NCII requires a more nuanced
approach. ―
57. In such circumstances, a reading of the provisions that bestow an
obligation upon an intermediary cannot be done in isolation and has to be
conducted in a purposive manner. The principle of purposive interpretation
focuses on interpretation of a provision in light of the purpose for which it
was enacted. As has been stated by the MEITY itself, the IT Rules, which
increases the burden upon intermediaries and widens their scope of losing
their safe harbour under Section 79, were notified for ensuring open, safe,
trusted and accountable Internet. The recent 2022 Amendment Rules also
demonstrate the increase in the obligations of the intermediaries which is
explicit in how intermediaries are now required to expend "reasonable
efforts" in ensuring that its users do not host, publish, display, share, etc. any
offending material defined under Rule 3(1)(b) instead of merely "informing"
the users about the same, which was the case earlier. Search engines being
an intermediary cannot hide behind the argument that they merely provide
access to third-party websites as due diligence exercised as per Rule 3 is
applicable to all intermediaries.
58. However, at this juncture, this Court finds to necessary to reiterate
that in the instant case, the lackadaisical approach of the Respondents has
come to light after a valid Court order has been rendered regarding
takedown of the offending content. There is substance in the submission of
the learned Amicus Curiae that the intermediaries cannot take shelter of the
decision of the Apex Court in Shreya Singhal v. Union of India (supra) for
the reason that an effective Court order regarding takedown of the unlawful
content has already been rendered. Further, the IT Rules have now come
into place which was not the case when the decision in Shreya Singhal v.
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Union of India (supra) was rendered. In addition to "actual knowledge" as
defined in Shreya Singhal v. Union of India (supra) as a Court order or upon
being notified by the appropriate Government, Rule 3(2)(b) and (c) of the IT
Rules now allows the victim/user to approach the intermediary on their own
with their grievance. Further, it already mandates a timeline that must be
adhered to when it comes to disabling access/de-linking the offending
content. If read holistically, if the user/victim is required to approach with
each specific URL again and again, this will only frustrate the purpose of the
timelines and the grievance mechanism redressal as expounded under the IT
Rules. It has been submitted that the sustained practice with regard to
content removal under the IT Act has been to provide specific URLs,
however, this practice fails to account for a grievance redressal mechanism
available to the user/victim and it is not justifiable, morally or otherwise, to
suggest that an NCII abuse victim will have to constantly subject themselves
to trauma by having to scour the internet for NCII content relating to them
and having to approach the authorities again and again. Once it has been
reported by the user/victim or a Court order or an order of the appropriate
Government has been rendered, then the search engine cannot contend that
any filtering of the content that is done subsequent to the reporting or the
Order is proactive in nature; it can only be termed as being in pursuance to
the reporting of existence of such content specific to an individual or a
judicial Order.
59. The fact that search engines do not host or publish or create content
themselves is of no consequence when it comes to the question of removal
of the access to the offending content. It is undeniable that they do have the
ability, the capacity, and the legal obligation to disable access to the
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offending content; this responsibility of the search engine cannot be brushed
under the carpet on the ground that it does not host content.
60. This Court painfully notes that there is an abysmal absence of a
collaborative effort that should ideally be undertaken by the intermediaries
and the State. The focus of such entities and authorities should be on the
quick redressal of the complaint brought before them rather than the shirking
of blame or making submissions on the onerous nature of their duties. In the
process of shirking responsibility, precious time is lost in removal of the
offending content and it enables the offender to keep reposting the content.
It further encourages other potential offenders to undertake such
dissemination of NCII content as they are aware of the lack of
consequences. This in turn frustrates the legal redressal mechanism in place
and the harm, both emotional and reputational, caused to the victim/user
persists and perpetuates. In a conservative country like India where matters
of this nature are not a part of dinner table conversations, NCII abuse does
indeed lead to harrowing consequences and everlasting stigma for the
victim. In light of this, the endeavour of every entity involved should be to
expeditiously resolve the issue.
DIRECTIONS AND RECOMMENDATIONS
61. In view of the foregoing observations, this Court deems it fit to render
the following directions and recommendations to the Respondent
Intermediaries, the Ministry of Electronics and Information Technology
(MEITY), as well as the Delhi Police, for ensuring that cases of the instant
nature are dealt in a manner that minimises the trauma caused to the victim
and resolves the problem at hand expeditiously:
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i. On approaching the Court for a takedown order in a matter
involving NCII content, the Petitioner must, along with the petition,
file an affidavit in a sealed cover identifying the specific audio,
visual images and key words that are being complained against, in
addition to the allegedly offending URLs for ex facie determination
of their illegality.
ii. The Grievance Officer, as defined under Rule 2(1)(k), who is
appointed by the intermediary for receiving complaints of the
users/victims must be appropriately sensitised. The definition of
NCII abuse must be interpreted liberally by the intermediaries to
include sexual content obtained without consent and in violation of
an individual's privacy as well as sexual content obtained and
intended for a private and confidential relationships.
iii. The "Online Cybercrime Reporting Portal", which is a central
platform available on cybercrime.gov.in, must have a status tracker
for the complainant, commencing from filing of a formal complaint
to the removal of the offending content. The portal must specifically
display the various redressal mechanisms that can be accessed by the
victim in cases of NCII dissemination. This display should be in all
languages specified in the Eighth Schedule. The cybercrime.gov.in
website, along with every other website of Delhi Police, should also
notably display the contact details/address of each District Cyber
Police Station present in the National Capital Territory of Delhi.
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iv. On the receipt of information, noting the nature of NCII content
which is punishable under Section 66E of the IT Act and the distress
that its continued existence may cause to the victim, the Delhi Police
must immediately register a formal complaint in order to initiate an
investigation and bring the perpetrators to book as soon as possible
so as to prevent the repeated upload of the unlawful content.
v. Every District Cyber Police Station must have an assigned
Officer who must liaise with the intermediaries against which
grievances have been raised by the victim who has approached the
Delhi Police and an endeavour should be made to ensure that the
grievance is resolved within the time schedules stipulated under the
IT Rules. The intermediaries are directed to cooperate
unconditionally as well as expeditiously respond to Delhi Police, and
thereafter follow the time schedules under the IT Rules.
vi. A fully-functioning helpline which is available round-the-clock
should be devised for the purpose of reporting NCII content.
Operators and individuals manning this helpline must be sensitised
about the nature of NCII content and must, under no circumstances,
indulge in victim-blaming or shaming the victim. Considering the
impact that NCII content has on the mental health of its victims,
these operators should also have a database of organisations with
registered counsellors, psychologists and psychiatrists available for
reference to the victims. The Delhi Legal Services Authority may
also be apprised and engaged in case the victims need legal aid.
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vii. Search engines must employ the already existing mechanism
with the relevant hash-matching technology on the lines of the one
developed by Meta as has been discussed above. They cannot be
allowed to avoid their statutory obligations by stating that they do
not have the necessary technology, which is patently false as has
been exhibited during the course of hearing.
viii. The reporting mechanism under Rule 3(2)(c) of the IT Rules
must be conveyed to the users by the intermediaries by way of
prominent display of the same on the website of the intermediary. It
is necessary for users to be made aware of the reporting mechanism
and the onus for educating the users lies on the intermediaries.
ix. The timeframe as stipulated under Rule 3 of the IT Rules must
be strictly followed without any exceptions, and if there is even
minor deviation from the said timeframe, then the protection from
liability accorded to a search engine under Section 79 of the IT Rules
cannot be invoked by the search engine.
x. When a victim approaches a Court or a law enforcement
agency and obtains a takedown order, a token or a digital identifier
based approach must be adopted by search engines to ensure that the
de-indexed content does not resurface. This means that the
user/victim may be assigned a unique token upon initial takedown of
NCII content. If the user/victim subsequently discovers that the same
content has resurfaced, then it is the responsibility of the search
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engine to use the tools that already exist to ensure that access to the
offending content is immediately ceased without requiring the victim
to approach the Courts or other authorities again and again for
removal of the same. The search engine cannot insist on requiring
the specific URLs from the victim for the purpose of removing
access to the content that has already been ordered to be taken down,
and the victim cannot be made to face humiliation or harassment by
having to approach the authorities or Courts seeking the same relief.
xi. As a long-term suggestion, a trusted third-party encrypted
platform may be developed by MEITY in collaboration with various
search engines under Rule 3(2)(c) for registering the offending NCII
content or the communication link by the user/victim. Accordingly,
the intermediaries in question may assign cryptographic
hashes/identifiers to the said NCII, and automatically identify and
remove the same through a safe and secure process. This would
reduce the burden on the victim/user to constantly have to scour the
internet for NCII pertaining to them and having to request for the
removal/de-indexing of individual URLs. Utmost importance should
accorded to the fact that the privacy of the user/victim must remain
inviolable and the data collected for the purposes of using the hash-
matching technology is not stored and misused. On account of the
vulnerability of the data involved, the platform must be subject to
greatest of transparency and accountability standards.
62. This lengthy exercise undertaken by this Court became necessary to
protect the sanctity of due process so that a stop could be put to the Orders
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of the Court being frustrated and undermined. Despite the existence of a
legal framework governing the instant subject as well as the existence of the
automated tools required to prevent the reproduction of NCII content that is
ex facie illegal, this Court has taken judicial notice of the reluctance
exhibited by intermediaries and the actual state of affairs when it comes to
implementation of the law. This Court hopes that the directions and the
suggestions provided herein will be duly followed by the entities involved.
63. This Court acknowledges the contribution of the learned Amicus
Curiae, Mr. Saurabh Kirpal, and is pleased to extend its immense gratitude
to him and his colleagues for their invaluable assistance and inputs on an
issue of this nature and bringing much needed clarity to the same. This
Court also acknowledges the contribution of Ms. Radhika Roy, Law
Researcher, for her research, assistance and inputs in the case.
64. While there may be some issues that remain unaddressed, this Court
feels compelled to state that the IT Act and the IT Rules are comprehensive
and unambiguous in delineating the nature of obligations of intermediaries.
Thus, the concerned authorities and entities must, without fail, comply with
and implement the provisions stipulated thereunder. This Court, therefore,
grants liberty to the learned Amicus Curiae to move an appropriate
application in this regard, including any application for modification or
clarification of directions/suggestions given above.
65. In view of the above observations and directions, the instant writ
petition is disposed of, along with pending application(s), if any.
SUBRAMONIUM PRASAD, J
APRIL 26, 2023/Rahul/RR
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