Taken aback by the actions of miscreants, the Delhi High Court has come up with a template for courts to issue a direction to remove online content. Delivering judgment upon a petition to remove online content, the High Court was faced with a challenge to save its decision from being rendered futile. A lady had filed a petition alleging that some miscreant had downloaded her image from her private Facebook and Instagram accounts, and posted them on pornographic websites. Acting upon the petition, the Court ordered removal of content and issued directions for the intermediaries to follow. However, while the intermediaries were willing to comply with the orders, errant parties continued to re-post and re-direct such content from one website to another and from one platform to another, rendering the court’s order ineffective.
The court noted that the issue of removing any offending content is significant, even while the matter is still being heard. Therefore, with a view to make effective and enforceable orders (including interim reliefs) with respect to such grievances, the court set out to craft a solution which could save legal proceedings of such a nature from becoming futile. The court formed two basic queries for the purpose:
- When a party seeks relief from the court, what directions are required to be passed by the court to make its order enforceable and effective, and to which parties are such directions required to be issued?
- What steps are required to be taken by law enforcement agencies to implement such directions issued by a court so that the content does not resurface on the internet, or the errant parties do not render the court order ineffective in any other manner?
The Law on Intermediaries and Obscenity
Section 67 of the Information Technology Act punishes transmission of obscene material in electronic form. It punishes whoever publishes or transmits, or ‘causes’ to be published or transmitted. Here, an intermediary is causing such information to be published.
However, Section 79 of the Act exempts an intermediary from any liability arising out of a user’s actions. To continue receiving this exemption, an intermediary must follow the requirements as laid down in Section 79 (2) and (3). These requirements are to expeditiously remove content from its resources once ordered either by the court or the government, without any evidence, and to observe due diligence guidelines issued by the Central Government. The due diligence requirement brings us to the intermediary guidelines.
Intermediary Guidelines, 2021
The petition was filed last year. But in February this year, the government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. The court noted that
‘A perusal of the 2021 rules shows that the regulatory regime governing intermediaries has been sharpened in several ways.’
But the court was also careful to add that since the rules were challenged in various High Courts and the Hon’ble Supreme Court has called the matter before itself, it clarified that it is not expressing any view as to the constitutional vires or any similar aspects of the 2021 rules. Nevertheless, the point to be focused on here is: the rules are still applicable as the Supreme Court has not ordered a stay on the operation of these rules.
The new rules lay down several due diligence requirements for an intermediary. Over and above, a social media intermediary has to observe some additional guidelines as well.
The law on removing content from the Internet
In Shreya Singhal’s case, the Hon’ble Supreme Court had read down the Intermediary Guidelines, 2011 to mean that an intermediary had to remove content only upon receiving ‘actual knowledge’ either through an order of the government or the court. In two recent cases, the Delhi High Court had further ruled that the objectionable content must be pointed to by the petitioner, and that the content must be removed by the hosting intermediary, and de-indexed by the search engines throughout the globe.
In Myspace Inc vs. Super Cassettes industries, 2017 (69) PTC 1 (Del) (DB), the court ruled that
“62. …The remedy here is not to target intermediaries but to ensure that infringing material is removed in an orderly and reasonable manner..
66. ..Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor..
Further, in Swami Ramdev & Ans. Vs. Facebook, Inc. & Ors. [2019 SCC OnLine Del 10701], the court had noted that:
“106. Applying these very principles to the present case, it is clear that any order passed by the Court has to be effective. The parties before this Court i.e. the platforms are sufficiently capable to enforce an order of global blocking. Further, it is not disputed that the platforms are subject to in personam jurisdiction of this Court. The argument of the platform is that owing to the disparity in the law of defamation in the different jurisdiction, such an order ought not to be passed.”
“108. This Court is of the opinion that any injunction order passed by the court has to be effective. The removal and disablement has to be complete in respect of the cause over which this Court has jurisdiction. It cannot be limited or partial in nature, so as to render the order of this Court completely toothless. If geo-blocking alone is permitted in respect of the entire content, there cannot be any dispute that the offending information would still reside in the global platforms of the Defendants, and would be accessible from India, not only through VPN and other mechanisms, but also by accessing the international websites of these platforms..”
The Decision and the template
The court observed that if the name or image of a person appears on a pornographic website without such person’s consent, such an act would amount to an offence under Section 67 of the IT Act, 2000. It further reiterated that the law and judicial opinion in India as well as several other jurisdictions mandates intermediaries to remove and disable access to offending content, as soon as notified by the government or the court. If it fails to do so, it will lose the exemption granted under Section 67 and become liable for prosecution.
To make orders effective and enforceable, the court reiterated that once the offending content is removed from a website, the search engine must block the search results throughout the world. No purpose would be served by issuing an order if it has no realistic prospect of preventing irreparable harm to the litigant.
Finally, the court laid down the template directions that should ordinarily be issued and parties to whom these should be issued.
- Upon being satisfied in any proceedings before it, 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 within 24 hours of receipt of the court order.
[Rule 3(2)(b) of new intermediary rules mandates intermediaries to remove any content which is prima facie obscene or in the nature of impersonation, including artificially morphed images, within 24 hours from the receipt of a complaint made by the victim or any person on his behalf.]
- A direction should also be issued to the website or online platform 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.
[Rule 3(1)(g) of the new intermediary rules mandates that upon receiving actual knowledge or upon receiving a grievance as under Rule 3(2), the intermediary shall, without vitiating evidence, preserve the information and associated records for one hundred and eighty days for investigation purposes.]
- A direction should be issued by the court to the search engine(s) as the court may deem inappropriate, to make the offending content non-searchable by ‘de-indexing’ and ‘de-referencing’ all concerned web pages, sub-pages on which the content is found. Such exercise shall be undertaken by the intermediary as soon as possible, but in no case later than 36 hours from the receipt of the court order. Further, as per Rule 3(2) (b), if the content is prima facie obscene or depicts sexual conduct, including artificially morphed images, it shall be removed in no more than 24 hours after receiving actual knowledge.
[Rule 3(1)(d) of the new intermediary rules mandates that an intermediary, upon receiving actual knowledge, shall remove the information as early as possible, but in no case later than thirty-six hours from the receipt of the court order or the government notification. Rule 3(2) (b) explained above]
- The directions must also mandate the concerned intermediaries to ‘endeavour to employ’ pro-active monitoring by using automated tools, to identify and remove content which is ‘exactly identical’ to the offending content.
[Rule 4 (1)(d) and 4(4) mandate an intermediary to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that has been previously removed by such intermediary.]
- Directions should be issued to concerned law enforcement agencies to obtain from the concerned website all information and associated records, including URL, account ID, handle name, IP address and hash value of the actual offending content along with metadata, subscriber information, access logs and such other information as the agency may require, as soon as possible but not later than 72 hours of receipt of written intimation in this behalf.
[Rule 3(1)(j) mandates an intermediary to provide information under its control or possession as soon as possible, but not later than seventy-two hours. Also, law enforcement agency means any government agency which is lawfully authorised for investigative or protective or cyber security purposes.]
- Direction must be issued to the aggrieved party to furnish all available information to the law enforcement agency including file name, image URL, web URL, and other available identifying elements of the offending content. Aggrieved party should also be permitted 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.
[This knowledge comes from the High Court’s experience in the MySpace case, as discussed above.]
- The intermediary may approach the court which has passed the order, in case of any objections, but only after complying with the request of the aggrieved party.
- When an intermediary fails to act upon receiving actual knowledge, the court must refer to Section 79(3)(a) and (b) read with Section 85 of the IT Act and Rule 7 of new intermediary rules, whereby an intermediary would forfeit the exemption from liability which it enjoys under the law if it fails to observe due diligence requirements as set out under the act or rules.
In the matter of X vs. Union of India and Ors. dated 20th April, 2021. W.P (Crl 1082/2020), judgment delivered by Hon’ble Justice Anup Jairam Bhambhani.
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