Removal Of Offending Content From Internet: Delhi High Court Lays Down Procedure, Guidelines For Intermediaries, Govt.Agencies

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." The Court observed that under the said rules, as part of the due diligence to be exercised by it, an intermediary is now required by way of its rules and regulations, privacy policy or user agreement to "inter alia inform its users that they must not host, display, upload modify, publish, transmit, store, update or share any information that 'belongs to another person and to which the user does not have any right' or which is inter alia 'invasive of another's privacy'." 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...

Removal Of Offending Content From Internet: Delhi High Court Lays Down Procedure, Guidelines For Intermediaries, Govt.Agencies

Nupur Thapliyal

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