Necessary for social media platforms to take all effective measures against child porn content: Delhi High Court

Taking note of the statutory framework, the Delhi High Court has stated that it is necessary for the intermediaries i.e social media platforms to take all effective measures available with them to ensure that the child porn content is not hosted on their platforms. (X vs State).The order was passed by a Single Judge Bench of Justice Vibhu Bakhru. .The Petitioner, a young woman, had become acquainted with a boy (the Accused) when she was in school. .As per the Petitioner, her relationship with the Accused was very abusive and he even compelled her to send her intimate photographs to him. Later, she broke up with him. .After completing her schooling, the Petitioner went to the United Kingdom for further studies. However, the Accused did not stop pursuing her. .After the Petitioner moved to Melbourne, Australia, she became aware that the Accused had posted her intimate pictures on various platforms such as Twitter, Instagram, YouTube, etc. .The Petitioner filed a complaint against the Accused before the Special Cell, Cyber Crime Department, Delhi Police and also filed the present petition seeking directions to Facebook, Google and YouTube to remove the objectionable content. .Pursuant to the directions of the Court, the objectionable content was removed by the social media platforms. However, more webpages containing the offending images were uploaded on Instagram, YouTube and other platforms..It appeared that the offending images had been widely distributed and were uploaded by several persons other than the Accused, the Court noted as it remarked, ."This brought into the sharp focus the problem of preventing circulation of identified objectionable material on the platforms operated on the net.".In response, Facebook Inc. affirmed that it prohibits any child porn content on its platforms and has adopted a number of measures to combat the spread of such content. .It was stated that child porn images were identified on Facebook and Instagram platforms and immediately removed. While any user had an option to report objectionable content, the platforms itself used "Photo DNA" and key words to identify any known or apparent child porn image/content, it was added. .Facebook Inc further asserted that it worked with National Centre for Missing and Exploited Children (NCMEC) which is a non-profit organization involved in helping to find missing children, reduce child sexual exploitation and prevent child victimization. .The Court was informed that NCMEC had created a 'Cyber Tipline' for providing an online mechanism to receive reports of suspected child porn content on the internet. .Similar to Facebook Inc, Google LLC also said that it had various protocols, including Community Standards and Policies, to deal with the child pornography or Child Sexual Abuse Materials (CP/CSAM) on its YouTube platform. .The Court was informed that a "combination of people and machine learning" was deployed at a scale for detecting, reviewing and removing objectionable content. .The platform also used artificial intelligence to prevent the uploading of CP content in respect of any known and reported image, it was added. .In view of the submissions, the Court held that there was no dispute that the intermediaries would be required to take down or remove unlawful content on receiving information regarding the same. .The Court added, .Section (79)(1) of the IT Act grants conditional immunity to the intermediaries and expressly provides that an intermediary shall not be liable for any third party information data or communication link made available or hosted by it..In Shreya Singhal v Union Of India, the Supreme Court read down the scope of "actual knowledge" as used in Clause (b) of Sub-section (3) of Section 79 of the IT Act to “receiving actual knowledge from a court order or on being notified by the appropriate government or its agency”. Thus, the question whether the intermediaries are required to remove offending content on an order of court or appropriate government and its agencies is no longer res integra..The Court further referred to Section 20 of the Protection of Children from Sexual Offences Act, 2012 and Rule 11 of the Protection of Children from Sexual Offences Rules, 2020 to state that the intermediaries were under an obligation to not host and to report any child porn content or any information regarding storage and dissemination of such content to Special Juvenile Police Unit or local police. .The Court thus stated, .Given the statutory framework, it would be necessary for the intermediaries to take all effective measures that may be available with them to ensure that the CP (child porn) content is not hosted on their platforms..The Court thus directed the social media platforms to remove similar offending content with respect to the Petitioner by using the technology and the tools available with them..The Court further directed the police to forward offending material relating to the Petitioner to the National Crime Report Bureau (NCRB). ."The NCRB shall also use the protocols available in terms of the Memorandum of Understanding entered into with NCMEC or otherwise to notify the offending material in order that the same can be actioned and removed from other platforms as well.", the Court ordered..As per the order, the police shall also use the protocols and resources available with NCRB and or other concerned agencies to identify the persons who are re-uploading the offensive content in India and take such actions as warranted, in accordance with law..The Petitioner was represented by Advocates Ashok Kumar Chhabra, Dhruva Bhagat. .State was represented by Additional Standing Counsel Nandita Rao with Advocate Gayatri Virmani. .Senior Advocate Mukul Rohatgi with Advocates Tejas Karia, Ajit Warrier, Gauhar Mirza, Shijo George, Hiral Gupta, Dhruv Bhatnagar (team from Shardul Amarchand Mangaldas) appeared for Facebook Inc/ Instagram..Senior Advocate Sajan Poovayya with Advocates Rakhsha Agrawal, Shikhar Maniar, Shruttima Ehersa, Sakshi Jhalani appeared for Google LLC..Centre was represented by Standing Counsel Anurag Ahluwalia with Advocate Abhigyan Siddhanth. .Read the Order: