Delhi HC passed an order directing intermediaries i.e social media platforms to take all effective measures available with them to ensure that the child porn content is not hosted on their platforms. This order was passed in a petition seeking removal of child porn content from social media.
Case Background
The petitioner, a young woman had become acquainted with a boy (the Accused) while she was a minor studying in school. The accused had misused her intimate pictures which she had been compelled to send upon his insistence. The petitioner claimed that the relationship was abusive and she had later broken up with the him.
She also claimed that the accused had pursued her to the UK where she had gone to pursue her further studies and had physically assaulted her. Restraining order were passed against the accused by the Court of the Province of Bath, United Kingdom pursuant to the police complaint lodged by the petitioner.
The petitioner became aware of the publication of her intimate pictures on various platforms such as Twitter, Instagram, YouTube, etc. after she had moved to Melbourne, Australia. The petitioner claimed that those were the very pictures she had been compelled to send by the accused when she was a minor.
The petitioner had filed a complaint against the Accused before the Special Cell, Cyber Crime Department, Delhi Police. Pursuant to the said complaint, FIR bearing No. 129/2019 for commission of offence punishable under Section 67–67A of the Information and Technology Act, 2000 was registered.
The petitioner also filed this petition seeking directions to Facebook, Google and YouTube to remove the objectionable content. Pursuant to the directions of this Court the objectionable Child Porn Content was removed by the social media platforms.
However, further webpages containing the offending images had been uploaded on Instagram, YouTube and other platforms which was brought to the notice of this court on 26th August 2020. This brought into focus the problem of preventing circulation of identified objectionable material on the platforms operated on the net. The court observed that the offending images had been widely distributed by persons other than the accused as well.
In its affidavit Against Child Porn Content Facebook submitted that, it has implemented a number of measures to combat the spread of child porn (CP) including working with National Centre for Missing and Exploited Children (NCMEC). Facebook also affirmed its zero tolerance to Child Pornography and highlighted various measures adopted to prevent CP content on the Facebook and Instagram Services which include (i) an option for anyone to report the said content, (ii) use of Photo DNA to identify any known or apparent CP image, and (iii) active identification of key words related to Child Porn Content.
Google also in its affidavit Against Child Porn Content submitted the various measures and protocols including Community Standards and Policies, use of Artificial Intelligence in place to deal with the menace of child pornography on its YouTube platform.
Court’s Observations & Order
The court in view of the submissions made Against Child Porn Content before it acknowledged that the social media platforms were undisputedly under an obligation of removal of unlawful content on receiving information regarding the same. It further added that the conditional immunity enjoyed u/s 79(1) of the IT Act by the intermediaries from liability for any third-party information data or communication link made available or hosted by it was not absolute but was subject to the provisions of Sub-sections (2) and (3) of Section 79 of the IT Act.
“In Shreya Singhal v. Union Of India: (2015) 5 SCC1 the Supreme Court read down the scope of “actual knowledge” as used in Clause (b) of Sub-section (3) of Section 79 of the IT Act to “receiving actual knowledge from a court order or on being notified by the appropriate government or its agency”. Thus, the question whether the intermediaries are required to remove offending content on an order of court or appropriate government and its agencies is no longer res integra.”
The Court highlighted the legal obligation of the intermediaries to not host and to report any child porn content or any information regarding storage and dissemination of such content to Special Juvenile Police Unit or local police u/s 20 of the Protection of Children from Sexual Offences Act, 2012 and Rule 11 of the Protection of Children from Sexual Offences Rules, 2020.
In the light of its above observations Against Child Porn Content the court proceeded to direct the social media platforms to remove similar offending content with respect to the Petitioner with the aid of the technology and the tools available at their disposal. It further directed the police to forward offending material relating to the Petitioner to the National Crime Report Bureau (NCRB).
The NCRB was also directed to use the protocols available in terms of the Memorandum of Understanding entered into with NCMEC or otherwise to notify the offending material so that its removal can be undertaken.
The order also requires the police to utilize the protocols and resources available with NCRB and or other concerned agencies for the purposes of identification of persons who are engaged in re-uploading the offensive content in India and take requisite actions as warranted, in accordance with law. The court also listed the specific Web pages/URLs containing the offending material involving Child Porn Content that cropped up on Instagram during pendency of the petition to be removed with immediate effect.
