New Delhi: The Delhi High Court last week pulled up search engines such as Google and Bing for evading their statutory obligations to remove ‘non-consensual intimate images’, or objectionable content.
A single-judge bench of Justice Subramaniam Prasad said, “They cannot be allowed to evade their statutory obligations on the ground that they do not have the necessary technology, which is patently incorrect during the hearing.” In case of directions.
Justice Prasad was hearing a writ petition seeking blocking of certain websites displaying intimate photographs of the petitioner.
It was the case of the petitioner that a Rich Manav Singhal was circulating his Non-consensual Intimate Images (NCII) on the Internet. The NCII refers to sexual material distributed without the consent of those depicted in the material – known colloquially as “revenge porn”.
Despite repeated requests to Google, Microsoft, YouTube, Vimeo and the cybercrime portal of the central government, such content has not been removed. He then approached the court seeking a direction to remove such material.
The Delhi High Court has now directed the removal of the said images and has also observed that the protection to search engines under the IT Act is “not absolute in nature”. It issued several guidelines to take care of such cases in future.
Case
As per the petitioner’s claim, Rikesh Manav Singhal had introduced himself on social media as a British Chartered Accountant and got close to him.
He then went to her rented accommodation in Haryana’s Gurugram and allegedly forced himself on her, clicked obscene photographs and transferred them to his device. She claimed that he had also indulged her minor son in various sexual acts and had threatened to release her pictures online and kill her son if she did not pay him the money.
He initially complied with her requests, giving her a large sum of money and her jewelry. However, when she failed to continue doing so, he released pictures of her on the internet. The photographs were not taken despite the efforts made by the petitioner to contact the complaint cells of various websites.
‘Safe Harbor’ provision
The search engines’ primary argument was that they had made every effort to ensure that the content did not remain on its index, but that they had no control over the content available.
They added that they were not “originators” of the content but only intermediaries and enjoyed safe harbor protection under the law.
Section 79 of the Information Technology Act provides a “safe harbour” provision, which states that intermediaries (such as Google or Microsoft Bing) will not be liable for third-party data made available by such platforms. However, they should exercise due care while discharging their duties, such as removing such material in a timely manner upon request.
IT rules require prima facie (prima facie) removal of sexual content within 24 hours of receipt of complaint. They are also required to provide any relevant information within 72 hours of the receipt of the order in this regard.
The HC said that as per the IT Rules, the “safe harbour” provided would be lapsed if an intermediary fails to perform its duties. It said they would be liable to be prosecuted under the IT Act and the Indian Penal Code (IPC). Such statutory duty cannot be avoided and must be complied with by the search engines.
This comes at a time when the central government is considering A look at the ‘safe harbor’ provision for search engines.
‘Intermediaries instructed to cooperate unconditionally’
Justice Prasad said that the directions and recommendations are necessary to ensure that such cases are dealt with in a manner that results in expeditious resolution of the problem and minimizes the trauma to the victim.
He said that on approaching the court, an affidavit identifying the contents should be placed before the court in a sealed cover by the petitioner. The grievance officers appointed by the intermediaries should also be sensitive enough and the definition of NCII should be interpreted liberally.
In addition, the online cyber crime portal should have a status tracker for complaints – from initiation to resolution. It should be available in regional languages and display contact details of District Cyber Police Stations in Delhi.
He said that the Delhi Police should immediately register a complaint on receiving such information and there should be an appointed officer to deal with intermediaries like Google and Microsoft on such a subject.
“The intermediaries are directed to unconditionally cooperate as well as respond expeditiously to the Delhi Police and thereafter adhere to the time schedule under the IT Rules,” Justice Prasad said.
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Fully functional helpline, reporting mechanism
The court said that a round-the-clock helpline should be set up to report NCII material. Operators must have access to a database with registered counsellors, psychologists and psychiatrists because of the mental health impact of dissemination of NCII material.
It added, “The operators and persons manning this helpline should be sensitive to the nature of NCII content and under no circumstances indulge in victim blaming or victim shaming.”
Intermediaries must also use “hash-matching techniques” to mark such content. Justice Prasad said that it should also be ensured that the reporting mechanism for such offenses under the IT Rules is conveyed to the users through its prominent display.
The court also said that the time limit prescribed under the IT Rules for removal of such material should be strictly followed.
“…if there is even a slight deviation from the said time limit, the protection from liability granted to search engines under section 79 of the IT Rules cannot be invoked by the search engines,” it said.
‘User/Victim Privacy Top Priority’
The Court said that a petitioner cannot be expected to approach the authorities repeatedly regarding the same NCII. A token/digital identifier-based approach should be adopted, allowing such content to be removed even if it reappears.
The Court further recommended that the IT Ministry develop a third-party encryption platform to register NCII. Once assigned a “cryptographic hash/identifier”, such content may be automatically removed.
“Utmost importance [be] Corresponding to the fact that the privacy of the user/victim should not be violated and the data collected for the purposes of using hash-matching technology is not stored and misused,” it observed.
“Due to the vulnerability of the data involved, the platform must be subject to the greatest transparency and accountability standards,” it added.
Akshat Jain is a student of National Law University, Delhi and interns with ThePrint.
(Editing by Zinnia Ray Chowdhury)