The Delhi High Court has held that that images taken from Facebook and Instagram accounts and uploaded on pornographic websites without the consent of such a person amounts to an offence under section 67 of the Information Technology Act, even if the photographs are not in itself obscene or offensive.
Justice Anup Jairam Bhambhani said, “…even if the photograph of the person is not in itself obscene or offensive, without consent or concurrence, would at the very least amount to breach of the person’s privacy, which a court may, in appropriate cases, injunct or restrain. It is evident that such publication would likely result in ostracisation and stigmatisation of the person concerned in society; and therefore, immediate and efficacious remedy is required in such cases.”
The court held that such intermediaries (Facebook, Instagram, etc) are “mandated to remove disable access to offending content once they’ve received ‘actual knowledge’ by way of a court order or upon being notified by the appropriate government or its agency, failing which the intermediary is liable to lose the exemption from liability available to it under section 79(1) of the IT Act.”
Further, the Single Bench also ruled that an intermediary cannot be heard to say that it is unable to remove or disable access to offending content despite such actual knowledge as contemplated in law. The court also opined that for an order directing the removal or access disablement of offending content to be effective even within India, “a search engine must block the search results throughout the world”.
The petitioner had alleged that her photographs, images and details on her private social media accounts on Facebook and Instagram were taken without her knowledge or consent and were unlawfully posted on a pornographic website. She submitted that despite her privacy settings being activated on social media, her photos and other details were accessed which is an offence under the Indian Penal Code and IT Act.
The High Court then referred to the relevant provisions of the IT Act, Information Technology (Intermediaries Guidelines) Rules 2011 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and opined that under these, as part of due diligence to be performed, the intermediary is required to “inter alia inform its users that they must not host, display, upload modify, publish, transmit, store, update or share any information 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’.”
Justice Anup said, “It may be mentioned in passing that in relation to the more serious offences impacting the sovereignty and integrity of India, security of the State and other such matters, a significant social media intermediary is now also mandated to enable the identification of the ‘first originator of the information on its computer resources’.” Noting that the Court is already hearing a challenge on the said Rules which is also pending before other High Courts, Justice Anup however clarified that no views are being expressed in this matter as to the constitutional vires or any aspect of the 2021 Rules.
On the issue of removing offensive content online, the court said, “the integrity of the court process has to be protected in the most effective way, the anarchical nature of the internet notwithstanding. It cannot be overemphasised that even if, given the nature of the internet, offending content cannot be completely ‘removed’ from the world-wide-web, offending content can be made unavailable and inaccessible by making such content ‘non searchable’ by de-indexing and de-referencing it from the search results of the most widely used search engines, thereby serving the essential purpose of a court order almost completely.”
The court observed that the action of the petitioner’s photographs and images having been taken from her Facebook and Instagram accounts and posted on the website “www.xhamster.com” and then having been re-posted onto other websites and online platforms, “amounts prima facie to an offence under section 67 of the IT Act in addition to other offences under the Indian Penal Code.”
The High Court has directed the Delhi Cyber Police to remove/disable access to the offending content, the Web and Image URL from all websites within the next 24 hours. The Police has also been instructed to obtain all information and records in relation to the offensive content within 72 hours of the judgment.
A further direction has been issued to the search engines Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo, to endeavour to use automated tools, to proactively identify and globally disable access to any content which is exactly identical to the offending content, that may appear on any other websites/online platforms.
The judgment may be read here: