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Publishing or transmitting obscene material: Delhi HC suggests directions for intermediaries, law enforcement in offences under Sec 67 of IT Act

The Delhi High Court has today suggested template directions for the Courts to follow in the cases related to offences under section 67 of the Information and Technology Act, 2000 which makes the publishing or transmitting of ‘obscene material’ in electronic form an offence.

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Delhi High Court suggests template directions for intermediaries and law enforcement in offences under Sec. 67 of IT Act (Publishing or transmitting Obscene material)

The Delhi High Court has today suggested template directions for the Courts to follow in the cases related to offences under Section 67 of the Information and Technology Act, 2000 which makes the publishing or transmitting of ‘obscene material’ in electronic form an offence.

A single Judge bench of Justice Anup Jairam Bhambhani noted,

“…in the opinion of this court, 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.”

The Court has penned its direction in a petition filed by a College Student alleged 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 posted on a pornographic website, ‘www.xhamster.com’.

The bench while stating that an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite knowledge of the issue, suggested the following template direction while considering the difficulties expressed by the intermediaries in identifying and removing offending content:

“(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. Since this timeframe is mandated in Rule 3(2)(b) of the 2021 Rules read with Rule 10 of the 2009 Rules for other similar kinds of offensive content, in the opinion of this court, the same timeframe ought to be applied if the court is satisfied that any offending content requires immediate removal;

(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;

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(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. For reference, some of the most commonly used search engines in India are Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo. This would be in line with the obligation of search engines to disable access to the offending content under the Second Proviso to Rule 3(1)(d) of the 2021 Rules. It is necessary to point-out that in the Second Proviso to Rule 3(1)(d), which deals with due diligence required by an intermediary, the time frame set-down inter alia for disabling access to offending content is “… as early as possible, but in no case later than thirty-six hours from the receipt of the court order …”; but under the grievance redressal mechanism engrafted in Rule 3(2)(b), the intermediary has been mandated to remove certain specified kinds of offending content within twenty-four hours from receipt of a complaint from any person. In the opinion of this court, the intermediary must be obliged to comply with a court order directing removal or disabling access to offending content within twenty-four 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 concerned law enforcement agency/ies, such as the jurisdictional police, to obtain from the concerned website or online platform 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 seventy-two 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;

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(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 concerned website, 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 concerned court which passed the order, seeking clarification but only after first complying with the request made by the aggrieved party. This would adequately address the difficulty expressed by Google LLC in these proceedings that a search engine is unable to appreciate the offending nature of content appearing in a different context. In this regard attention must be paid to Rule 4(8) of the 2021 Rules which contemplates that an intermediary may entertain a ‘request for the reinstatement’ of content that it may have voluntarily removed; whereby the 2021 Rules now specifically provide that offending content may be removed in the first instance, giving to any interested person as specified in Rule 4(8) the liberty to object to such removal and to request for reinstatement of the removed content. This has been provided in the rules since, evidently, it affords a more fair and just balance between the irreparable harm that may be caused by retaining offending content on the world-wide-web and the right of another person to seek reinstatement of the content by challenging its removal;

(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.”

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