Delhi High Court: Anup Jairam Bhambhani, J. has held it to be an irrefutable proposition that if the name and/or likeness of a person appears on a pornographic website without the consent or concurrence of such person, such act would by and in itself amount to an offence, among others, under Section 67 of the Information and Technology Act, 2000 (“IT Act”).
During the course of the instant proceedings, it transpired that despite orders of the Court, even the respondents who were willing to comply with interim directions issued to remove offending content from the world-wide-web, expressed their inability to fully and effectively remove it in compliance with court directions; while errant parties merrily continued to repost and redirect such content from one website to another and from one online platform to another, thereby cocking a snook at directions issued against them in pending legal proceedings. The High Court, therefore, also suggested template directions that 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 principle grievance of the petitioner was 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 unlawfully posted on a pornographic website by an unknown entity, whereby the petitioner’s photographs and images have become offensive by association.
It was contended that even though the petitioner’s photographs and images are otherwise unobjectionable, but by placing the same on a pornographic website, the errant respondents have ex-facie committed the offence of publishing and transmitting material that appeals to the prurient interests, and which has the effect of tending to deprave and corrupt persons, who are likely to see the photographs, which is an offence under Section 67 of the IT Act. Further, the errant parties have attached captions to her photographs, which act falls within the mischief of other penal provisions of the IT Act and the Penal Code, 1860.
Need for crafting out a solution
During the preliminary hearing, it transpired that cyber crime unit of Delhi Police was ready and willing to comply with Court’s directions of removing/disabling access to the offending content relating to the petitioner, but by reason of technological limitations and impediments, it could not assure the Court that it would be able to entirely efface the offending content from the world-wide-web. While on the other hand, the petitioner complained that while the Court made interim orders for immediate removal of the offending content from the errant website, yet in brazen and blatant disregard of such directions, the errant respondents and other mischief-makers had redirected, reposted and republished the offending content onto other websites and online platforms, thereby rendering the orders of the Court ineffective.
The Court accordingly perceived that the issue of making effective and implementable orders in relation to a grievance arising from offending content placed on the world-wide-web, needed to be examined closely; and a solution to the problem needed to be crafted out so that legal proceedings of the instant nature did not become futile. For examining the statutory landscape, the technological limitations and the reality, the Court appointed Dr Pavan Duggal, Advocate, specialising in cyber law and cyber crime, as Amicus Curiae.
On a combined reading of Sections 1(2), 75 and 81 of the IT Act, the Court noted that the IT Act has extra-territorial and overriding application provided the computer, computer system or computer network involved are located within India.
Section 67 of the IT Act forms its parent provision which makes the publishing or transmitting of ‘obscene material in the electronic form an offence. Sections 67-A and 67-B were also noted.
2(1)(w) defines “intermediary” as a person who ‘receives, stores or transmits’ electronic records on behalf of another person or provides ‘any service’ in relation to electronic records. The definition is inclusive and includes within its ambit telecom service providers, network service providers, internet service providers, web-hosting service providers and search engines. Sections 2(1)(o) which defines “data”; 2(1)(v) which defines “information” are also important.
It was noted that though Section 79(1) exempts intermediaries from certain liability under the IT Act, what is noteworthy is that such exemption is not unqualified or unconditional and applies only if the intermediary fulfils certain conditions and obligations. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009; and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were also considered.
The High Court placed reliance on the Supreme Court judgment Shreya Singhal v. Union of India, (2015) 5 SCC 1, where it was held that an intermediary would lose the exemption from liability that it enjoys under Section 79(1) if it does not ‘expeditiously remove or disable access to’ offending content or material despite receiving ‘actual knowledge’, which would mean knowledge by way of a court order or on being notified by the appropriate Government or its agency (which in the instant context would mean the police authorities concerned).
Lastly, the Court noted Section 85, which while dealing with contraventions of the IT Act or Rules committed by companies, also makes the directors, manager, secretary or other officer of a company liable if the contravention has been committed by reason of neglect attributable to such person. It was emphasised that what is brought within the provision is any contravention of any provision of the IT Act or any Rules made thereunder.
Breach of Privacy
According to the High Court, it is an irrefutable proposition that if the name and/or likeness of a person appears on a pornographic website (as in the instant case) without the consent or concurrence of such person, such act would by and in itself amount to an offence, among others, under Section 67 of the IT Act. This is so since Section 67 makes it an offence to publish or transmit, or causes to be published or transmitted, in the electronic form, any material which appeals to the prurient interests of those who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. The Court said:
“The only purpose of posting the petitioner’s photograph on a pornographic website could be to use it to appeal to the prurient interests of those who are likely to see it. That apart, the inclusion of the name and/or likeness of a person on such website, even if the photograph of the person is not in itself obscene or offensive, without consent or concurrence, would at the very least amount to breach of the person’s privacy, which a court may, in appropriate cases, injunct or restrain. It is evident that such publication would likely result in ostracisation and stigmatisation of the person concerned in society; and therefore immediate and efficacious remedy is required in such cases.”
Difficulty faced by Intermediaries
The Court noted that in the first instance, an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite such actual knowledge as contemplated in law. That being said, however, the Court could not ignore the difficulties expressed by the intermediaries, in the instant case, in identifying and removing offending content, which intermediaries effectively represented the perspective and point-of-view of several other intermediaries who are similarly placed. In fact, none of the respondent intermediaries took a stand that they were not ready or willing to remove offending content if directed by a court order or by an appropriate governmental agency. The intermediaries only said that it may not be possible to identify the offending content appearing in various disguises and corrupted avatars; and further that, it would be too onerous and impractical to place upon them the responsibility to keep on a lookout for offending content resurfacing in the various different disguises and corrupted avatars at the instance of mischief-makers, on a continuing basis.
In the High Court’s opinion, 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:
(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;
(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, sub-pages or sub-directories on which the offending content is found. The intermediary must be obliged to comply with a court order directing removal or disabling access to offending content within 24 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 pro-active 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 law enforcement agencies concerned, such as the jurisdictional police, to obtain from the website or online platform concerned 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 72 hours of receipt of written intimation in this behalf by the law enforcement agency;
(vi) Also, the court must direct the aggrieved party to furnish to the law enforcement agency all available information that the aggrieved party possesses relating to the offending content, such as its file name, Image URL, Web URL and other available identifying elements of the offending content, as may be applicable; with a further direction to the law enforcement agency to furnish such information to all other entities such as websites/online platforms/search engines to whom directions are issued by the court in the case;
(vii) The aggrieved party should also be permitted, on the strength of the court order passed regarding specific offending content, to notify the law enforcement agency to remove the offending content from any other website, online platform or search engine(s) on which same or similar offending content is found to be appearing, whether in the same or in a different context. Upon such notification by the aggrieved party, the law enforcement agency shall notify the website concerned, online platform and search engine(s), who (latter) would be obligated to comply with such request; and, if there is any technological difficulty or other objection to so comply, the website, online platform or search engine(s) may approach the court concerned which passed the order, seeking clarification but only after first complying with the request made by the aggrieved party;
(viii) The court may also direct the aggrieved party to make a complaint on the National Cyber-Crime Reporting Portal (if not already done so), to initiate the process provided for grievance redressal on that portal;
(ix) Most importantly, the court must refer to the provisions of Section 79(3)(a) and (b) read with Section 85 of the IT Act and Rule 7 of the 2021 Rules, whereby an intermediary would forfeit the exemption from liability enjoyed by it under the law if it were to fail to observe its obligations for removal/access disablement of offending content despite a court order to that effect.
Orders in the instant petition
The Court was satisfied that the action of the petitioner’s photographs and images having been taken from her Facebook and Instagram accounts and having been posted on a pornographic website; and then having been reposted onto other websites and online platforms, amounts prima facie to an offence under Section 67 of the IT Act in addition to other offences under the IPC.
Accordingly, the High Court issued the following directions to the State and other respondents:
(1) The petitioner was directed to furnish in writing to the Investigating Officer of the subject FIR, all available information relating to the offending content, including the Image URL and Web URL pertaining to the offending image files, within 24 hours of receipt of a copy of the judgment, if not already done so;
(2) The Delhi Police/CyPAD Cell were directed to remove/disable access to the offending content, the Web URL and Image URL of which would be furnished by the petitioner as above, from all websites and online platforms, forthwith and in any event within 24 hours of receipt of information from the petitioner;
(3) A direction was issued to the search engines Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo, to globally de-index and de-reference from their search results the offending content as identified by its Web URL and Image URL, including de-indexing and de-referencing all web-pages, sub-pages or sub-directories concerned on which the offending content is found, forthwith and in any event within 24 hours of receipt of a copy of the judgment alongwith requisite information from the Investigating Officer as directed below;
(4) A further direction was issued to the search engines to endeavour to use automated tools, to proactively identify and globally disable access to any content which is exactly identical to the offending content, that may appear on any other websites/online platforms;
(5) The Investigating Officer was directed to furnish in writing the Web URL and Image URL of the offending content to the other entities to whom directions have been issued by the court in the instant matter, alongwith a copy of the judgment, within 24 hours of receipt of such copy;
(6) The Delhi Police was directed to obtain from the pornographic website concerned and from the search engines Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo (and any other search engines as may be possible) all information and associated records relating to the offending content such as the URL, account ID, handle name, Internal Protocol Address, hash value and other such information as may be necessary, for investigation in the FIR registered in the instant case, forthwith and in any event within 72 hours of receipt of a copy of the judgment, if not already done so;
(7) Furthermore, the petitioner was granted liberty to issue written communication to the Investigating Officer for removal/access disablement of the same or similar offending content appearing on any other website/online platform or search engine(s), whether in the same or in different context; with a corresponding direction to the Investigating Officer to notify such website/online platform or search engine(s) to comply with such request, immediately and in any event within 72 hours of receiving such written communication from the petitioner;
(8) Notwithstanding the disposal of the present petition by the instant order, if any website, online platform, search engine(s) or law enforcement agency has any doubt or grievance as regards compliance of any request made by petitioner as aforesaid, such entity shall be at liberty to approach the High Court to seek clarification in that behalf.
The Court made it clear that non-compliance with the foregoing directions would make the non-compliant party liable to forfeit the exemption, if any, available to it generally under Section 79(1) of the IT Act and as specified by Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021; and shall make such entity and its officers liable for action as mandated by Section 85 of the IT Act.
The petition was disposed of in the above terms. [X v. Union of India, 2021 SCC OnLine Del 1788, dated 20-4-2021]
Advocates who appeared in this case:
Mr. Sarthak Maggon, Advocate alongwith petitioner in-person.
Dr. Pavan Duggal, Amicus Curiae.
Mr. Ajay Digpaul, CGSC with Mr. Kamal R. Digpaul, Advocate for UOI.
Ms. Gayatri Virmani, Advocate for Ms. Nandita Rao, ASC for the State. Mr. Meet Malhotra, Senior Advocate with Mr. Aditya Vaibhav Singh, Advocate for respondent No. 3.
Mr. Parag P. Tripathi, Senior Advocate with Mr. Tejas Karia, Mr. Ajit Warrier, Mr. Gauhar Mirza, Mr. Shyamal Anand, Mr. Thejesh Rajendran, Ms. Malikah Mehra and Ms. Mishika Bajpai, Advocates for respondent No. 4.
Mr. Sajan Poovayya, Senior Advocate with Ms. Mamta R. Jha, Advocate, Ms. Shruttima Ehersa, Advocate, Mr. Pratibhanu, Advocate, Ms. Raksha, Advocate and Mr. Sharan, Advocate for respondent No. 7.