The Delhi High Court on Tuesday held that photographs taken from Facebook and Instagram accounts uploaded on pornographic website without the consent of such person amounts to an offence under sec. 67 of the IT Act and that such an act, even if the photographs are not in itself obscene of offensive, without the consent of the party would amount to breach of person's privacy.
While making the aforesaid observations, a single judge bench comprising of Justice Anup Jairam Bhambhani held that in such cases, the Court may in appropriate cases pass an order of injunction or restrain.
"That apart, the inclusion of the name and/or likeness of a person on such website, even if the photograph of the person is not in itself obscene or offensive, without consent or concurrence, would at the very least amount to breach of the person's privacy, which a court may, in appropriate cases, injunct or restrain. It is is evident that such publication would likely result in ostracisation and stigmatisation of the person concerned in society; and therefore immediate and efficacious remedy is required in such cases." The Court held.
Observing the role of intermediaries in such cases, the Court held that such intermediaries are mandated to remove and disable access to offending content once they receive 'actual knowledge' by way of a court order or upon being notified by the appropriate government or its agency, failing which the intermediary is liable to lose the exemption from liability available to it under section 79(1) of the IT Act.
"In the first instance therefore, an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite such actual knowledge as contemplated in law." The Court held.
Furthermore, the Court also held that for an order directing the removal or access disablement of offending content to be effective even within India, a search engine must block the search results throughout the world since no purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant.
The observation came in a petition alleging that the petitioner's photographs images and details that she had posted on her private social media accounts on 'Facebook' and 'Instagram' were taken without her knowledge or consent and were unlawfully posted on pornographic website . It was also the case of the petitioner that despite her "privacy settings" being activated on the social media, such photos and other details were taken. Therefore, it was submitted by the petitioner that such a conduct is punishable under sec. 67 of the IT Act and will fall within the meaning of mischief under IPC and IT Act.
Intermediaries and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Analyzing the relevant provisions of the IT Act, Information Technology (Intermediaries Guidelines) Rules 2011 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 observed thus:
"A perusal of the 2021 Rules shows that the regulatory regime governing intermediaries has been sharpened in several ways. Notably, a 'grievance' has now been defined under Rule 2(1)(j) of the 2021 Rules; the concept of a 'social media intermediary' and 'significant social media intermediary' has also been brought in under Rule 2(1)(w) and (v) respectively; and the definition of 'user' has been expanded under Rule 2(1)(x) of the 2021 Rules."
Noting that a detailed time bound grievance redressal mechanism is provided under Rule 3(2), the Court observed that a time frame of 24 hours from the receipt of a complaint is set out for an intermediary to 'take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it' inter alia for 'artificially morphed images' of an individual.
"It may be mentioned in passing that in relation to the more serious offences impacting the sovereignty and integrity of India, security of the State and other such matters, a significant social media intermediary is now also mandated to enable the identification of the 'first originator of the information on its computer resources'. It is important to note that under Rule 4(4) a significant social media intermediary is now required to 'endeavour to deploy technologybased measures, including automated tools or other mechanisms to proactively identify information' that depicts inter alia 'any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary'. The intermediary is also required to display a notice to any user attempting to access such information, notifying that such information has been so removed or access-disabled. The Second Proviso to Rule 4(4) contemplates the implementation by a significant social media intermediary of 'appropriate human oversight' of the measures deployed under this sub-rule and the periodic review of automated tools so deployed." The Court held.
Noting that the Court is already hearing a challenge on the said Rules which is also pending before other High Courts, the Court however clarified that no view is being expressed in the present matter as to the constitutional vires or any similar aspects of the 2021 Rules.
Observing that in order to protect the intergrity of the court process, the Court noted that "It cannot be overemphasised that even if, given the nature of the internet, offending content cannot be completely 'removed' from the world-wide-web, offending content can be made unavailable and inaccessible by making such content 'nonsearchable' by de-indexing and de-referencing it from the search results of the most widely used search engines, thereby serving the essential purpose of a court order almost completely."
Suggested Directions that should ordinarily be Issued and the parties to whom these should be issued
- Based on a 'grievance' brought before it, as contemplated in Rule 2(1)(j) of the 2021 Rules or otherwise, and upon a court being satisfied in any proceedings before it, whether at the interim or final stage, that such grievance requires immediate redressal, the court may issue a direction to the website or online platform on which the offending content is hosted, to remove such content from the website or online platform, forthwith and in any event within 24 hours of receipt of the court order. Since this timeframe is mandated in Rule 3(2)(b) of the 2021 Rules read with Rule 10 of the 2009 Rules for other similar kinds of offensive content, the same timeframe ought to be applied if the court is satisfied that any offending content requires immediate removal.
- Website or online platform on which the offending content is hosted to preserve all information and associated records relating to the offending content, so that evidence in relation to the offending content is not vitiated, at least for a period of 180 days or such longer period as the court may direct, for use in investigation, in line with Rule 3(1)(g) of the 2021 Rules.
- Search engine(s) to make the offending content non-searchable by 'de-indexing' and 'dereferencing' the offending content in their listed search results, including de-indexing and de-referencing all concerned webpages, sub-pages or sub-directories on which the offending content is found.
- The intermediary must be obliged to comply with a court order directing removal or disabling access to offending content within twenty-four hours from receipt of such order.
- The directions issued must also mandate the concerned intermediaries, whether websites/online platforms/search engine(s), 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, as contemplated in Rule 4(1)(d) of the 2021 Rules.
- Law enforcement agencies should be directed to obtain all unique identifiers relating to the offending content such as the URL (Uniform Resource Locator), account ID, handle name, Internet Protocol address and hash value of the actual offending content alongwith the metadata, subscriber information, access logs and such other information as the law enforcement agency may require from concerned websites as provided under Rule 3(1)(j) of the 2021 Rules. The same must be done as soon as possible but not later than 72 hours.
- The court may also direct the aggrieved party to make a complaint on the National Cyber-Crime Reporting Portal (if not already done so), to initiate the process provided for grievance redressal on that portal.
- The court must refer to the provisions of section 79(3)(a) and (b) read with section 85 of the IT Act and Rule 7 of the 2021 Rules, whereby an intermediary would forfeit the exemption from liability enjoyed by it under the law if it were to fail to observe its obligations for removal/access disablement of offending content despite a court order to that effect.
General Directions in the Matter
- Petitioner directed to furnish in writing to IO all information regarding offending content within 24 hours of the judgment.
- Delhi Police/CyPAD Cell are directed to remove/disable access to the offending content, the Web URL and Image URL of which would be furnished by the petitioner as above, from all websites and online platforms within 24 hours of receipt of information from the petitioner.
- 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 concerned web-pages, sub-pages or sub-directories on which the offending content is found within 24 hours.
- Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo, to endeavour to use automated tools, to proactively identify and globally disable access to any content which is exactly identical to the offending content, that may appear on any other websites/online platforms.
- Delhi Police directed to obtain all information and associated records in relation to the offending content within 72 hours.
Title: X v. UOI & Ors.
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