Delhi High Court asks Microsoft, Google to file review plea against order to remove non-consensual intimate images

The Delhi High Court on Thursday asked tech companies Google and Microsoft to lodge a review petition seeking recall of the single-judge order directing search engines to proactively remove non-consensual intimate images (NCII) from the internet without insisting on specific URLs.

A Division Bench comprising Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora passed the judgment while hearing the appeals lodged by the two tech companies against the judgment passed by the single-judge on April 26, 2023.

The court stated that this Court is of the view that it would be appropriate for the appellants, Microsoft and Google to file a review and bring the facts to the view of the single-judge. The court added that in the event the appellants are aggrieved by the order of the single-judge in the review petition, they will be at liberty to seek revival of the present petitions.

The court also clarified that the single-judge may not dismiss the review petitions filed by the two companies on grounds of delay. Notably, Microsoft which owns search engine Bing and Google had filed the appeals against the judgment passed by Justice Subramonium Prasad. 

Justice Prasad had cautioned the social media intermediaries that they will lose their protection from liability if there is even a minor deviation from the time-frame provided under the Information Technology Rules (IT Rules) for removal of non-consensual intimate content.

He had held that technology exists for the search engines to remove the NCII content without requiring the victim to approach the courts or other authorities again and again for removal of the same.

The single-judge had said that search engines cannot feign helplessness when it comes to removal of or disabling access to links containing such illegal content. During the hearing today, Microsoft and Google argued that it is technologically impossible for them to carry out the directions issued by the single-judge. They added that even Artificial Intelligence (AI) tools are not perfect to do the task and the technology is still being developed.

Appearing for Google, Senior Advocate Arvind Nigam said that what may appear identical to a human eye may not exactly be identical to the automated algorithm as it depends on resolution, configuration, watermark etc. The counsel mentioned that he had filed the affidavit before the single-judge stating all this but the argument was rejected.

Representing Microsoft, Senior Advocate Jayant Mehta said that technology is evolving but it is yet to reach the stage where NCII images can be removed by the search engines without requiring URLs.

Subsequently, the bench remarked that the search engines can make the argument before the single-judge and say that they don't have the technology. Asking to file a review plea, the Division bench remarked that no one can ask the petitioners to perform an impossible task.