(Uploading and distributing such images of a girl/woman is a criminal offence but this order reminds the intermediaries or social media platforms such as Facebook and Instagram of their legal responsibilities)
In a petition (X vs State) seeking removal of child porn content, an order was passed by a Single Judge Bench of Justice Vibhu Bakhru stating that it is necessary for social media platforms to take all effective measures against child porn content and ensure that the child porn content is not hosted on their platforms.
The Court referred to Section 20 of the Protection of Children from Sexual Offences Act, 2012 and Rule 11 of the Protection of Children from Sexual Offences Rules, 2020 observing that the intermediaries were under an obligation 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.
Facts of the case:
The Petition states that her relationship with the Accused was very abusive while he even used to compel her to send her intimate photographs to him.
After breaking up with him, the Petitioner went to the United Kingdom for further studies after completing school. However, the Accused continued pursuing her.
Only after moving to Melbourne, Australia, she found out that the Accused had posted her intimate pictures on various platforms such as Twitter, Instagram, YouTube, etc.
That was when she filed a complaint before the Special Cell, Cyber Crime Department, Delhi Police and also filed the present petition seeking directions to Facebook, Google and YouTube to remove the objectionable content. Pursuant to the directions of the Court, the objectionable content was removed by the social media platforms. However, some webpages containing the offending images were uploaded on Instagram, YouTube and other platforms.
"It appeared that the offending images had been widely distributed and were uploaded by several persons other than the Accused" The court stated.
The court further while observing that the intermediaries would be required to take down or remove unlawful content on receiving information regarding the same emphasized on the laws in place-
Section (79)(1) of the IT Act grants conditional immunity to the intermediaries and expressly provides that an intermediary shall not be liable for any third party information data or communication link made available or hosted by it..In Shreya Singhal v Union Of India, 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.
As per the order, the police shall also utilize the protocols and resources available with NCRB and other concerned agencies to identify the persons who are re-uploading the offensive content in India and take actions, in accordance with law.
Read/Download order here