Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has issued notice in a PIL filed seeking directions for formulation of laws to control the circulation of illicit content including sale of obscene and pornographic material inclusive of Child Sexual Abuse Material (CSAM), rape videos and revenge porn on social media platforms.
The plea filed by two law students from Bharati Vidyapeeth (Deemed to be University)’s New Law College, Pune, Abhyudaya Mishra and Skand Bajpai, also seeks formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.
The petition states that there has been a market established wherein people are involved in the purchase, sale and transmission of obscene material and many such accounts are public accounts which defeats the purpose of “Age Appropriate Content Policy” of the intermediaries.
“When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”. This shows scarce regard to law.”
The plea also refers to a report filed by an NGO named India Child Protection Fund in April, 2020, which stated that there has been a surge in the search for keywords like ‘Child porn’ on the internet.
“… 18% individuals exhibited explicit intent for videos where children were choking, bleeding, tortured, in pain or screaming. The demand for this kind of content grew as much as 200% during the project duration. The report also claims that a large number of individuals were found to be concealing their location and criminal activity by using virtual private networks (VPNs) to circumvent government regulation and platform security.”
Highlighting the issue of ‘revenge porn’, the petitioners state that the concept has been prevailing since 2010 and though several Nation States have expressly criminalised revenge porn in their territories, however in India there exists no such legislation.
“The evil of revenge porn and the trade relating to the private graphic information of individuals on social media violates the right to privacy of those affected.”
The petition further states that no minimum prescribed age or any other provision regarding minors’ access to social media has created a situation wherein any material is available for access to any age group, and given the subject matter of this petition, it portrays a disturbing side of these platforms. These minor children fall an easy prey and are often manipulated and exploited by the predators on these social media platforms.
“As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms, however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”
It is further stated that under Rule 5 of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource and also remove non-compliant information in case of non-compliance of Rule 3 that creates several obligations on the intermediaries. However,
“Even though this mechanism is in place, it has had no or very little impact on the transmission and access to the non-compliant information, barring of account under Rule 5 has no impact on the physical or human user of the account and they often create another account as mentioned in paragraph 3 herein, this may create an endless vicious cycle. This suggests the outburst of unverified and fake media profiles along with a number of catfish accounts already prevailing for ulterior motives on social media.”
The petition also seeks a direction to the Government to notify and enforce the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 and also to include sex education in school curriculum in order to spread awareness regarding the issue. It states,
“Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many, dedicated efforts are required to spread awareness on this subject.”
[Skand Bajpai v. Union of India, Writ Petition(s)(Civil) No(s). 799/2020, order dated 13.10.2020]