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Judiciary Update

YB WEB DESK. Dated: 4/21/2021 11:49:46 AM

Publishing or transmitting obscene material: HC suggests directions for intermediaries, law enforcement in offences under Sec 67 of IT Act

New Delhi, Apr 20 The Delhi High Court has today suggested template directions for the Courts to follow in the cases related to offences under Section 67 of the Information and Technology Act, 2000 which makes the publishing or transmitting of ‘obscene material’ in electronic form an offence. A single Judge bench of Justice Anup Jairam Bhambhani noted, “…in the opinion of this court, a fair balance between the obligations and liabilities of the intermediaries and the rights and interests of the aggrieved user/victim would be struck by issuing directions as detailed below, which would be legal, implementable, effective and would enable meaningful compliance of the orders of a court without putting any impossible or untenable burden on intermediaries.” The Court has penned its direction in a petition filed by a College Student alleged that her photographs and images that she had posted on her private social media accounts on Facebook and Instagram have been taken without her knowledge or consent and have been posted on a pornographic website, ‘www.xhamster.com’. The bench while stating that an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite knowledge of the issue, suggested the following template direction while considering the difficulties expressed by the intermediaries in identifying and removing offending content: “(i) 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, in the opinion of this court, the same timeframe ought to be applied if the court is satisfied that any offending content requires immediate removal; (ii) A direction should also be issued to the 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; (iii) A direction should also be issued by the court to the search engine(s) as the court may deem appropriate, to make the offending content non-searchable by ‘de-indexing’ and ‘de- referencing’ the offending content in their listed search results, including de-indexing and de-referencing all concerned web- pages, subpages or sub-directories on which the offending content is found. For reference, some of the most commonly used search engines in India are Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo. This would be in line with the obligation of search engines to disable access to the offending content under the Second Proviso to Rule 3(1)(d) of the 2021 Rules. It is necessary to point-out that in the Second Proviso to Rule 3(1)(d), which deals with due diligence required by an intermediary, the time frame set-down inter alia for disabling access to offending content is “… as early as possible, but in no case later than thirty-six hours from the receipt of the court order …”; but under the grievance redressal mechanism engrafted in Rule 3(2)(b), the intermediary has been mandated to remove certain specified kinds of offending content within twenty-four hours from receipt of a complaint from any person. In the opinion of this court, 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; (iv) The directions issued must also mandate the concerned intermediaries, whether websites/online platforms/ search engine(s), to endeavour to employ proactive 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; v) Directions should also be issued to the concerned law enforcement agency/ies, such as the jurisdictional police, to obtain from the concerned website or online platform all information and associated records, including 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, in line with Rule 3(1)(j) of the 2021 Rules, as soon as possible but not later than seventy-two hours of receipt of written intimation in this behalf by the law enforcement agency.