It is an irrefutable proposition that if the name and/or likeness of a person appears on a pornographic website without the consent or concurrence of such person, such act would by and in itself amount to an offence, among others, under Section 67 of the IT Act. However, it was evident that by reason of technological limitations and impediments, even the respondents could not possibly ensure that they could entirely efface the offending content from the world-wide-web.
‘The internet never sleeps and the internet never forgets’
In the High Court’s opinion, thus, a fair balance between the obligations and liabilities of the intermediaries and the rights and interests of the aggrieved user/victim would be assured only by issuing directions that are legal, implementable, effective and allow meaningful compliance of the orders of a court without putting any impossible or untenable burden on intermediaries
This remarkable judgment was passed by the Delhi High Court in the matter of X V UNION OF INDIA AND ORS. [W.P.(CRL) 1082/2020 & CRL. M.A. NOS.9485/2020, 10986-87/2020] by Honourable Justice Anup Jairam Bhambhani.
The principal grievance of the petitioner, here, was that her photographs and images that she had previously posted on her private social media accounts on Facebook and Instagram have been taken without her knowledge or consent and have been unlawfully posted on a pornographic website by an unknown entity, whereby the petitioner’s photographs and images have become offensive by association with pornographic websites.
It was contended that even though the petitioner’s photographs and images are otherwise unobjectionable, but by placing the same on a pornographic website, the errant respondents have ex-facie committed the offence of publishing and transmitting material that appeals to the prurient interests, and which has the effect of tending to deprave and corrupt persons, who are likely to see the photographs, which is an offence under Section 67 of the IT Act. Further, the errant parties have attached captions to her photographs, which falls within the mischief of other penal provisions of the IT Act and the Penal Code, 1860.
In the course of preliminary hearings, it transpired that the cybercrime unit of the Delhi Police was willing to comply with the court directions of removing/disabling access to the offending content but by reason of technological limitations, it could not assure the court that it would be able to entirely efface the offending content from the world-wide-web. On the other hand, the petitioner complained that in brazen and blatant disregard of court orders the errant respondents had redirected, re-posted and re-published the offending content onto other websites and online platforms.
Thence, the Delhi HC bench perceived that the issue of making effective and implementable orders in relation to grievances arising from offending content placed on the world-wide-web, needed to be examined closely; and a solution to the problem needed to be crafted out so that legal proceedings of the nature faced by this court did not become futile. For examining the statutory landscape, the technological limitations and the reality, the Court appointed Dr Pavan Duggal, Advocate, specialising in cyberlaw and cybercrime, as Amicus Curiae.
The Court asserted that “On a combined reading of Sections 1(2), 75 and 81 of the IT Act, the Court noted that the IT Act has extra-territorial and overriding application provided the computer, computer system or computer network involved are located within India.”
“Also, Section 79(1) exempts intermediaries from certain liability under the IT Act, what is noteworthy is that such exemption is not unqualified or unconditional and applies only if the intermediary fulfils certain conditions and obligations. But Shreya Singhal v. Union of India 2015 5 SCC 1, where it was held that an intermediary would lose the exemption from liability that it enjoys under Section 79(1) if it does not ‘expeditiously remove or disable access to’ offending content or material despite receiving ‘actual knowledge, which would mean knowledge by way of a court order or on being notified by the appropriate Government or its agency.“
“The Court could not ignore the difficulties expressed by the intermediaries in identifying and removing offending content, which intermediaries effectively represented the perspective and point-of-view of several other intermediaries who are similarly placed. In fact, none of the respondent intermediaries took a stand that they were not ready or willing to remove the offending content if directed by a court order or by an appropriate governmental agency. The intermediaries only said that it may not be possible to identify the offending content appearing in various disguises and corrupted avatars; and further, it would be too onerous and impractical to place upon them the responsibility to keep on a lookout for offending content resurfacing in the various different disguises and corrupted avatars at the instance of mischief-makers, on a continuing basis.”
Thus, the Delhi HC acknowledged that there should be strict directives. The Court issued certain directions related to the intermediary’s behaviour and their authority in taking down the offending content in the event when the Court has issued a relevant direction, preserving the content for a certain time frame to be used as evidence. Additionally, they also directed them ‘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 the subject matter of the court order’. Also, law enforcement agencies and the aggrieved parties were directed appropriately in this regard for future perusal. These directions were framed and based on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Thence, the HC directed the petitioner to furnish URLs of the offending content and then the Delhi Police/CyPAD Cell was directed to remove/disable access to the offending content. Additionally, A direction was issued to the search engines Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo, to globally de-index and de-reference from their search results the offending content as identified by its Web URL and Image URL, including de-indexing and de-referencing all web-pages, sub-pages or sub-directories concerned on which the offending content is found.
