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

A Division Bench of the Delhi High Court on Thursday asked tech companies Google and Microsoft to file 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 of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora passed the order while hearing the appeals filed by the two tech companies against the judgment passed by the single-judge on April 26, 2023.."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. 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 said. It further clarified that the single-judge may not dismiss the review petitions filed by the two companies on grounds of delay. .Microsoft which owns search engine Bing and Google had filed the appeals against the judgment passed by Justice Subramonium Prasad. In a detailed judgment, Justice Prasad had warned 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.Justice Prasad 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..Microsoft and Google today argued that it is technologically impossible for them to carry out the directions issued by the single-judge. They said that even Artificial Intelligence (AI) tools are not perfect to do the task and the technology is still being developed. Senior Advocate Arvind Nigam appeared for Google and said that what may appear identical to a human eye may not exactly be identical to the automated algorithm. "It depends on resolution, configuration, watermark etc. I had filed the affidavit before the single-judge stating all this but the argument was rejected," Nigam said. Senior Advocate Jayant Mehta appeared for Microsoft and said that technology is evolving but it yet to reach the stage where NCII images can be removed by the search engines without requiring URLs. "Technology is evolving but we have not reached that stage yet. To say that you [search engines] are required to do it today otherwise your immunity is gone, that can’t be. It is work in progress. I am endeavouring to reach it. But to say that I must do it today is not fair," he said. .The Division Bench then remarked that the search engines can make the argument before the single-judge and say that they don't have the technology. "No one can ask you to perform an impossible task. Please file a review and say to the learned single-judge pleaser recall this part of the judgement," the Division Bench said.