Resurfaced sexual content should be removed; victim need not approach court again: Delhi HC

New Delhi: The Delhi High Court on Wednesday expressed its displeasure over the "reluctance" exhibited by internet platforms in implementing the law against illegal sharing of sexually explicit content and directed that if such content "resurfaces" in spite of a take-down order, it must be removed immediately and a victim need not approach the court again for its removal.

While observing that the "internet never forgets" and it is "exceptionally difficult to control" the spread of objectionable content, Justice Subramonium Prasad said it is the responsibility of the search engine to immediately cease access to the offending content and the victim cannot be made to face humiliation or harassment by having to approach the authorities again seeking the same relief.

The court stated "Non-Consensual Intimate Images (NCII) abuse", which was increasing in the digital age, must include "sexual content obtained without consent and in violation of an individual's privacy as well as sexual content obtained and intended for private and confidential relationships".

It said the Delhi Police must immediately register a formal complaint in such matters and book the perpetrators as soon as possible to prevent the repeated upload of unlawful content.

NCII, which includes "revenge porn”, violates the right to privacy and causes psychological damage to the victim, and subjects them to social ostracisation and humiliation that can seriously impact their mental health as well as cause significant life disruptions, such as loss of job, and being turned away by their families, observed the court.

The court directed the intermediaries to "cooperate unconditionally as well as expeditiously respond" to Delhi Police in such cases and follow the IT Rules.

It added that the grievance officers of the intermediaries, who receive such complaints, should also be appropriately sensitised.

Being an intermediary under the Information Technology (IT) Act, the court said, search engines are obligated to observe due diligence while discharging their duties under Rule 3 of the IT Rules, including making reasonable efforts to prevent hosting, display, uploading, or sharing any information that is invasive of another's privacy and violates any law for the time being in force.

"If information is relating to content which is prima facie in the nature of any (NCII) material..., the search engine is required to take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it," said the court.

It stated that the focus of internet platforms and authorities should be on the quick redressal of the complaint brought before them rather than the shirking of blame or making submissions on the onerous nature of their duties as precious time is lost.

"When a victim approaches a court or a law enforcement agency and obtains a takedown order, a token or a digital identifier-based approach must be adopted by search engines to ensure that the de-indexed content does not resurface," said the court.

"If the user/victim subsequently discovers that the same content has resurfaced, then it is the responsibility of the search engine to use the tools that already exist to ensure that access to the offending content is immediately ceased without requiring the victim to approach the Courts or other authorities again and again for removal of the same," it said.

The court's order was passed on a petition by a woman who sought the blocking of certain sites exhibiting her intimate images.

In the instant case, more than 83,000 explicit pictures, including that of the petitioner, were recovered by police from one of the laptops at the accused's residence.

"Not only does uploading of NCII lead to a clear violation of the provisions of the IT Act and IT Rules, it is also a violation of the right to privacy which is a sacrosanct aspect of Article 21 of the Constitution of India," stated the court in its 88-page order.

The court also "painfully noted that there is an abysmal absence of a collaborative effort that should ideally be undertaken by the intermediaries and the state" and hoped that its directions and suggestions would be duly followed.

"Despite the existence of a legal framework governing the instant subject as well as the existence of the automated tools required to prevent the reproduction of NCII content that is ex facie illegal, this Court has taken judicial notice of the reluctance exhibited by intermediaries and the actual state of affairs when it comes to implementation of the law," said the court.

"The time-frame as stipulated under Rule 3 of the IT Rules must be strictly followed without any exceptions, and if there is even minor deviation from the said time-frame, then the protection from liability accorded to a search engine under Section 79 of the IT Rules cannot be invoked by the search engine," it stated.

As a long-term suggestion, the court said a "trusted third-party encrypted platform" may be developed by the Information and Technology in collaboration with various search engines for registering the offending NCII content and then remove it through a "safe and secure process" considering the issues of privacy of the victim and misuse of data.

"This would reduce the burden on the victim/user to constantly have to scour the internet for NCII pertaining to them and having to request for the removal/de-indexing of individual URLs," the court said.

"On account of the vulnerability of the data involved, the platform must be subject to the greatest of transparency and accountability standards," it said.

The court also said every District Cyber Police Station must have an assigned officer who must liaise with the intermediaries against which grievances have been raised by the victim and the “Online Cybercrime Reporting Portal" must have a status tracker for the complainant, commencing from the filing of a formal complaint to the removal of the offending content.

It also said a fully functioning, round-the-clock helpline should be devised for the purpose of reporting NCII content without any victim-blaming and these operators should also have a database of organisations with registered counsellors, psychologists, and psychiatrists available for reference to the victims.

Inputs from PTI