“Internet Never Sleeps, Internet Never Forgets”: Del HC Issues Directions on Posting Private Photo on Adult Website

The internet never sleeps; and the internet never forgets ! …. Despite orders of this court, to remove offending content from the world-wide-web,…. the errant parties merrily continued to repost & redirect such content from one website to another …, thereby cocking-a-snook at directions issued against them in pending legal proceedings.” Starting off its judgement by a deep criticism of the actions of the respondents, the Delhi HC on 20th April 2021 gave directions for handling cases where private content is posted on adult websites.

Background: 

The petitioner was that her photographs posted on her private social media accounts (Facebook, Instagram) had been taken without her knowledge and consent and unlawfully posted on a pornographic website. Even though her pictures were unobjectionable, putting them on a pornographic website, the errant parties had committed an offence under sec.67 of the Information Technology Act 2000. She also stated that the errant parties had attached captions to her pictures which falls under mischief under the IT Act and IPC.

In the course of preliminary hearings, the Cyber Unit of Delhi Police (CyPAD) submitted that due to technological limitations and impediments, it could not assure the court that the content would be completely erased from the world-wide-web. 

During these proceedings, “in brazen and blatant disregard of directions” the errant respondents and other mischief-makers redirected, re-posted and re-published the offending content onto other platforms. This rendered the court’s orders ineffective. 

The court also perceived that the issue of making effective and implementable orders in relation to a grievance arising from offending content placed on the WWW, 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. The court also appointed a specialist in cyber-law and cyber-crime, Dr Pavan Duggal, Advocate (amicus curiae) to assist in the case. 

Questions before the Court:

  1. When relief of removing content from the internet is sought, what directions were required to be passed and to which parties?
  2. What steps are required to be taken by law enforcement agencies to implement such directions to ensure that offending content does not ‘resurface’ or remain available on the WWW; and errant parties do not evade orders of court with impunity?

Analysis of the Court:

The Hon’ble Judge, Anup Jairam Bhambhani and submissions of the Amicus Curiae drew their attention to the Statutes in India which included Information Technology(IT) Act, 2000 as amended by IT (Amendment) Act, 2008; the IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009; IT (Intermediaries Guidelines) Rules 2011; and IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. 

From these statutes, various provisions were cited and analysed as per the facts and circumstances of the case. Provisions include social media intermediaries being mandated to assist government authorities in investigation and furnish information within 72hrs. Timelines have also been set-down for dealing with complaints by users/victims relating to unlawful content, particularly the time for taking action in removal of such content. 

Apart from this, the court also looked at Judicial Precedents in Foreign Jurisdictions. This was majorly because search engines and other tech companies operate on an international scale. These precedents included those of known companies such as Google, Facebook, Twitter and even YouTube.

Submissions:

The court also heard submissions from the CyPAD, Google LLC, Ministry of Electronics & Information Technology, Internet service providers association and Facebook/Instagram. 

Google stated that it had no opposition to removing access to the offending content as may be directed by the court. 

Facebook/Instagram, submitted that it has a robust privacy policy and also adopts global best practices to protect the privacy of its users to permit a safe online experience. It pointed out that though it was the woman’s allegation that her photographs and images had been taken from her Facebook/Instagram social media accounts, she does not claim any relief against the entity. 

Decision and Directions:

The court found that even if the photograph of the person is not in itself obscene or offensive, the mere existence of them on an adult website would likely result in ostracisation and stigmatisation of the person in society.

It suggested steps to be issued in such cases. It stated that in cases of such grievances, the court may issue a direction to the online platform on which the offending content is hosted, to remove such content within 24 hours of receipt of the court order. It was to also preserve information and records of the offending content for a minimum 180 days or a longer period if such was directed by investigators. 

The courts can also issue directions to search-engines to make the offending content non-searchable by ‘de-indexing’ and ‘dereferencing’ in their listed results. All internet intermediaries were to comply with the court directions under 24hrs. 

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Further online platforms were to employ proactive monitoring by using automated tools, to identify and remove or disable access to any content which is ‘exactly identical’. 

Thus, the court keeping in line the above provisions directed the removal of offensive content to the State and intermediaries. 

Click here to Read/Download Order

Story by Sai Kulkarni – Intern

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