Libertatem Magazine

Delhi High Court Issues Directions for Effective Takedown of Compromising Personal Content

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The High Court heard the writ petition containing issues related to offending content being posted on a worldwide pornographic website. The Court passed directions to implement for protecting such offending content.

The issue before the Court:

  1. When any party seeks relief from the Court related to the removal of offending content from a worldwide web platform, what directions by the Court make an effective outcome?
  2. What are the important steps required by the law enforcement agencies to implement the directions passed by the Court so that the offending contents do not resurface and remain available on any online platform?

The facts of the Case: 

The Petitioner in the present case while using her social media accounts, namely Facebook and Instagram, posted pictures as usual. She has submitted that the photographs that she posted in her social media accounts have been taken and reposted without her consent and knowledge. An unknown entity named ‘Desi Collector’ illegally posted those photographs on a pornographic website named Xhamster. The Petitioner’s images thus became offensive and despite activating the privacy settings on those social media accounts the accounts were compromised and images were placed on a pornographic website. The Petitioner pleads in the present case to make those pictures removed from the pornographic website and overall search engine. The Petitioner also claimed that she filed a complaint on the platform of the National Cyber-Crime Reporting Portal as well as the jurisdictional police officer but did not get any action from the authorities whereas in the meantime the offending content received 15,000 views. Then she filed the writ petition for the same.

Petitioner’s grievance:

Petitioner contended that her images are not anything improper or unobjectionable but taking the same picture on a pornographic website has made it an obscene act and a penal offense since publishing pictures for the perverted interest tends to deprave and corrupt viewers those who are likely to notice the photographs. The Petitioner, moreover, contended that such an act is considered as an offence under Section 67 of the Information Technology Act 2000. Also, the entity has captioned the photograph making it appealing in a depraved approach, and thus it falls within punishable provisions under Indian Penal Code 1860.

Respondent’s argument:

Facebook Inc./ Instagram being the major Respondent, i.e., Respondent no. 4 in the present case submitted that this platform has a robust privacy policy under which users are permitted a safe online experience. From locking the profile, profile picture guard to selecting audiences for customizing the content access there are many other privacy settings existing to the users for restricting access to their content.

Court’s observations:

The High Court has notably mentioned the concept of social media intermediary and significant social media intermediary considering the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This intermediary is required to inform its users that they are not allowed to share, store, update or engage in any kind of activity that ‘belongs to another person and to which the user does not have any right’ or which is inter alia ‘invasive of another’s privacy. As per one of the rules laid down in the 2021 Rules, it is to be noted that the intermediary must take all reasonable measures practicable to remove or disable access to the unwanted posting of the content inter alia ‘artificially morphed images’ of an individual. A ‘Nodal Contact Person’ must be employed for 24 x 7 cooperation with law enforcement agencies to investigate and comply with any complaint made following any legal provisions under the rules.

The High Court in this present case has considered the rules and judgement laid down in international cases of X v. Twitter inc. ([2017] NSWSC 1300), Google Spain SL, Google Inc. vs. Agencia Española de Protección de Datos (AEPD), Mario Costeja González and Equustek Solutions Inc. vs. Jack.

Also, the Court has mentioned that in the case of Eva Glawischnig-Piesczek vs. Facebook Ireland Limited,  that of the Petitioner’s it was ordered that “a hosting provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.”

Furthermore, the Court’s attention is drawn towards a previous judgment of a Division Bench of the same Court that an intermediary is not to be targeted for the infringement of content rather avoid any contempt action an intermediary shall remove contents resembling the content of the owner.

Moreover, the Court has heard the intermediaries that it is difficult for them to identify and remove the offending content although they are not unwilling to do so. Thus the Court cannot ignore the perspective and opinion of several intermediaries placed similarly in this case.

Court’s decision:

Based on the grievance brought before this Court in the present case, the Court has issued several directions- to the online platforms that host or preserve offending contents, to the search engines for making offending contents non-searchable, also the concerned intermediaries of the social media or any online platform to proactively monitor and identify and remove the offending content, to the law enforcement agencies to get all the necessary information related to the offender’s account ID, name and internet address as soon as possible.
However, the Court granted liberty to the Petitioner for issuing written communication to the Investigating Officer related to this case in regards to the removal or disablement of access to the offending content.

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