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This article is written by Radhika Bansal, student of Vivekananda Institute of Professional Studies (VIPS), Guru Gobind Singh Indraprastha University (GGSIPU).

Abstract

On April 20, 2021, Delhi High Court delivered a notable judgment i.e. ‘X’ V. Union of India and Others and it has been hailed for its lucid exposition delineating the procedure, guidelines for intermediaries or government agencies for the removal of any offending content from the digital platform. The crucial question which arose was whether uploading an individual’s name or photograph, though not in itself offensive, on a pornographic website amounts to breach of privacy of that respective individual. The court held ‘That apart, the inclusion of the name and/or likeness of a person on such website, 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 present article examines the judgment in great length analyzing the submissions of both the parties with pertinent reasons.

Introduction

It has become trite to suggest that the convergence of computing and communications has begun to change the way we live, and the way we commit a crime.

David Wall delineate cybercrime in three forms, which are mainly-

  • Computer integrity crimes that assault the integrity of network access mechanisms. (hacking and cracking, cyber vandalism, spying, denial of service, viruses, etc.)
  • Computer-related crimes use networked computers to engage with victims to dishonestly acquire cash, goods, or services (‘phishing’, advanced fee frauds, etc.).
  • Computer content crimes relate to the illegal content on networked computer systems and include the trade and distribution of pornographic materials as well as the dissemination of hate crime materials.

Cybercrime is the darker side of digitalization. This term is neither defined in the Information Technology Act, 2000 nor in any other legislation of India. Cybercrime is similar to traditional crime; the only key difference is that in cybercrime the digital gadgets or digital platform is involved.

”Privacy is not an option, and it shouldn’t be the price we accept for just getting on the internet.” – Gary Kovacs

Peter N. Grabosky explained in length under the head ‘the private threat to privacy’ that how the technology or digital platforms have become a gigantic threat to one’s privacy.

Analysis of judgment

Petitioner: ‘x’

Respondents: Union of India

Date of judgment: April 20, 2021

Judges on Bench: Anup Jairam Bhambhani

Advocates who appeared in the present case: Mr. Sarthak Maggon, Advocate along with petitioner in-person. Dr. Pavan Duggal, Amicus Curiae. Mr. Ajay Digpaul, CGSC with Mr. Kamal R. Digpaul, Advocate for UOI. Ms. Gayatri Virmani, Advocate for Ms. Nandita Rao, ASC for the State. Mr. Meet Malhotra, Senior Advocate with Mr. Aditya Vaibhav Singh, Advocate for respondent No. 3. Mr. Parag P. Tripathi, Senior Advocate with Mr. Tejas Karia, Mr. Ajit Warrier, Mr. Gauhar Mirza, Mr. Shyamal Anand, Mr. Thejesh Rajendran, Ms. Malikah Mehra and Ms. Mishika Bajpai, Advocates for respondent No. 4. Mr. Sajan Poovayya, Senior Advocate with Ms. Mamta R. Jha, Advocate, Ms. Shruttima Ehersa, Advocate, Mr. Pratibhanu, Advocate, Ms. Raksha, Advocate and Mr. Sharan, Advocate for respondent No. 7.

Brief facts of the case

The petitioner has put certain photographs and images on her private social media account i.e. Facebook and Instagram which have been taken and illicitly posted on a pornographic website called ‘www.xhamster.com’ with petitioner’s no knowledge or consent by an unknown entity named ‘Desi Collector’ whereby the petitioner’s photographs and pictures became offensive by association.

Petitioner’s contentions

The petitioner contended that her social media accounts had the requisite ‘privacy settings’ activated and then also these accounts were compromised, and her photographs and images were taken and put on the pornographic website.

The petitioner also asserted that even though her photographs and images are otherwise unobjectionable but by putting the same on a pornographic website, the aberrant respondents have ex-facie committed the offence of publishing and transmitting material that appeals to the prurient interests, and which has the effect of tending to deprave and corrupt persons, who are likely to ascertain the photographs, which is an offence under Section 67 of the Information Technology Act, 2000.

The petitioner even claims that the errant respondents have attached captions to her pictures, which act falls within the mischief of penal provisions of the IT Act and the Penal Code, 1860.

The petitioner also asserted the fact that she had already filed a complaint on the National Cyber-Crime Reporting Portal as well as to the jurisdictional police but no avail, and also because of inaction on the part of the authorities; the pictures had received around 15000 views within a week.

Analysis of issues

The present case involves mainly two major issues:

  1. Whether uploading an individual’s name or photograph, though not in itself offensive, on a pornographic website amounts to breach of privacy?
  2. What would be the implementable and effective directions that should be issued by a court if it finds that certain content appearing on the world-wide-web is illicit or offending and ought to be removed?

Issue 1

In Olmstead v. United States Justice Brandeis in his dissenting view surmised that the right to privacy is the “right to be let alone” and he honored it by articulating that it is “the most comprehensive of rights and the right most valued by civilized men”.

Privacy has been perceived as a paramount human right of the dwellers of the world in numerous international conventions. For example, Article 12 of the Universal Declaration of Human Rights has declared that all persons shall have protection against attacks on their privacy. 

Issue 2

Vide order dated 07.08.2020, the court mounted certain skepticism to get answers as to what would be the implementable and effective directions that should, and could, be issued by a court if it finds that certain content appearing on the world-wide-web is illicit or offending and ought to be removed.

The queries arose since, despite directions issued by this court to erase certain content from the world-wide-web, the concerned respondents reverted, that due to technological limitations it is impossible to fully efface offending content from the world-wide-web; and the petitioner and the court would simply have to contend with a mischief-maker chronic to re-post and re-direct offending material onto other websites on the worldwide-web despite the court ordering its removal.

Addressing the aforementioned issue, the court appointed Dr. Pavan Duggal, Advocate, who specializes in cyber-law and cyber-crime, as Amicus Curiae to assist the court with the same.

Submissions of Learned Amicus Curiae

In response to the aforesaid queries, Dr. Pavan Duggal, learned Amicus Curiae, by way of his written submissions dated 16.09.2020 and 21.10.2020 as further amplified in the course of oral submissions, has first pointed out certain legal provisions of the Information Technology Act, 2000 as amended by Information Technology (Amendment) Act, 2008; and to the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009 and Information Technology (Intermediaries Guidelines) Rules 2011.

The enactment of the 2021 Rules in supersession of the 2011 Rules is the manifestation of the fact that the Central Government has sharpened and broadens various aspects of the liabilities and obligations cast upon intermediaries to deal with unlawful content and also precise timelines have been set down for resolving the grievances of the victims relating to unlawful content.

The term for taking action for removal or disablement of access to unlawful material has been effectively reduced from 1 month under Rule 3(11) of the 2011 Rules to 24 hours under Rule 3(2)(b) of the 2021 Rules.

It has been expressly stated in the 2021 Rules that omission on the part of an intermediary to remove or disable access to unlawful content would revoke the exemption from liability enjoyed by the intermediary under section 79 of the IT Act.

The learned Amicus Curiae further stated various Judicial Precedents in foreign as well as in Indian jurisdiction.

Judicial Precedents in Foreign Jurisdictions

In X. V. Twitter Inc., Hon’ble Supreme Court of New South Wales, Australia explained that an ‘equitable obligation of confidence’ arises upon an intermediary; and holding that in certain cases the court may acquire statutory jurisdiction even over a foreign defendant.

The Hon’ble Grand Chamber of the Court of Justice of the European Union in, Google Spain SL, Google Inc. V. Agencia Española de Protección de Datos (AEPD), Mario Costeja González ruled that the operator of a search engine is obliged to remove from the list of results displayed following a search made based on a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be when its publication in itself on those pages is lawful.

In Equustek Solutions Inc. vs. Jack, the Hon’ble Supreme Court of British Columbia had this to say that the effect of the U.S. order is that no action can be taken against Google to enforce the injunction in U.S. courts. That does not restrict the ability of this Court to protect the integrity of its process through orders directed to parties over whom it has personal jurisdiction.

Judicial Precedents in India

In YouTube LLC v. Geeta Shroff, the Court holds that based on the pleadings and/or lack of denial from Google that the offending post had been uploaded from India, Google was required to remove it to restore status quo ante.

In ABC vs. DEF & Ors, the court directed to remove any other material which the plaintiff may report as objectionable qua her i.e. photographs relating to her or any other content relating to the plaintiff from any other account.

In Shreya Singhal vs. Union of India, Hon’ble Supreme Court held that Section 79 is valid subject to Section 79(3) (b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.

Submissions of Delhi Police

Mr. Rahul Mehra, the learned Standing Counsel (Criminal) appeared on the behalf of the Delhi Police. He relied upon the legal provisions of section 79 of the IT Act and the 2011 Rules.

It was submitted that to secure successful removal of offensive and illicit content from the world-wide-web and also to forbid such content being re-posted, re-transmitted, or republished on the world-wide-web, directions ought to be issued to the concerned intermediaries under section 79(3)(b) of the IT Act for removal of such content as identified through unique identifiers such as the URL (Uniform Resource Locator), Account ID, Handle name, Internet Protocol Address, hash value, pixel matching, structural similarity index, etc. of the content.

It has further been submitted by the Delhi Police that directions ought to be issued to intermediaries under section 79(3)(a) of the IT Act read with section 107 of the IPC and rule 3(2) of the 2011 Rules, to prevent further posting, transmission or publication of ‘identified unlawful content’.

Submissions of Google LLC

Mr. Sajan Poovayya, learned senior counsel appearing on behalf of Google LLC/respondent No. 7 stated that as regards the issue of removal of content or blocking access is concerned, it has been submitted that the role of the search engine is ‘reactive’ and is limited to disabling access to specific URLs by effacing or removing such URLs from the search results, once these are reported by governmental agencies or ordered by the court; and that their role is not ‘proactive’. 

He further elucidated how Google Search works. It is submitted that in respect to detecting an image on the world-wide-web it is imperative to have both the Image URL and Web URL about a specific image.

In response to the skepticism made by this court as to whether it is practical for a search engine to make content non-searchable so that even if the content is accessible and continues to reside on various websites, it should not be identifiable, locatable, and cannot be searched-up so that it is effectively unavailable for viewing, it has been explained that in the first instance, content can be made non-searchable by the webmaster/owner of the website or online platform by choosing not to have the content ‘indexed’ by a search engine. This can be achieved either by password protecting the content or the server. The second way of doing this is for a web-master/owner to add a simple code “robot.txt” to its website root server; as a result of which when Google crawlers encounter this code, they would remove the content from the Google index. A third way to make content non-searchable is to add meta-tags such as “no index” to the HTML code of a website, and upon reading these meta-tags, the Google crawlers would not add such page/content to the Google index.

The attention of this court is drawn to a judgment of a Division Bench of this court in My space Inc vs. Super Cassettes Industries, where the Division Bench has opined as follows:

The Court is conscious of the fact that under the current system, MySpace hosts several hundreds and thousands of videos, which is only growing every single day. 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 a 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 that are yet to exist is not only contrary to law but also impossible to monitor.

In conclusion, Google LLC has suggested that to make orders issued by this court effectively, the following directions may be passed:

  • At the outset, a direction may be passed to the website hosting the alleged content to remove/disable access to the URL of the impugned content. Once the impugned content is removed from the actual websites, the same will be organically removed from the search engines.
  • For removal from the search engine, the court or an appropriate government agency can, upon holding the content to be unlawful, share the specific URL of the impugned content for the de-listing/cache removal.

In the opinion of this court, Google LLC’s objection to orders of prior restraint or blanket ban of content is wholly unnecessary and misplaced. This court is also conscious that no order should be made that is impossible of compliance and that a direction for removal of content must be proportionate to achieve and only achieve the purpose of removing what has been found by the court to be ex-facie offending content.

Submissions of Ministry of Electronics & Information Technology

The Ministry stated that the ‘Online Cyber-Crime Reporting Portal’ accessible at www.cybercrime.gov.in, was chiefly intended for reporting pornography/child pornography or gang rape complaints, but has now broadened its purview to incorporate all cybercrimes; and that thus; any aggrieved person can report any illicit content through this portal.

The compliance of section 66E of the IT Act, which is a penal provision associated with punishment for violation of privacy and Rules 3(2)(b), 3(2)(e), 3(6), and 3(8) of the ‘2011 Rules’ are also engaged; and any aggrieved party can file a grievance for violation of privacy before the jurisdictional law enforcement authority.

The law enforcement agencies play a pivotal role in insulating the individual’s privacy and, for that reason; the proposition by the learned Amicus Curiae for direct action by courts is not what the Legislature intended.

Submissions of Internet Service Providers Association of India

Mr. Meet Malhotra, learned senior counsel appearing on behalf of respondent No. 3, Internet Service Providers Association of India (‘ISPAI’), submitted that ISPAI members do not curb the content that goes is shared on the world-wide-web. However, ISPAI members are mandated by law to acquiesce with every ‘blocking order’ issued by competent governmental authorities.

The ISPAI submitted that to avert ‘mirroring of content’ it is essential to ensure expeditious global source blocking at the level of the platform of the content provider/aggregator/intermediary. Thereby it is the ISPAI’s submissions that while it is viable for a member of the ISPAI to block the whole website under directions of the competent authority or a court, it is not viable for an ISPAI member to analyze or monitor content or to block content partially, since they hardly provide the technological infrastructure, on or through which, a website or online platform functions.

Submissions of Facebook Inc./ Instagram

Mr. Parag Tripathi, learned senior counsel has submitted that Facebook has a vigorous privacy policy and also embraces global best practices to insulate the privacy of its users to boost a safe online experience.

He further submitted that Facebook/Instagram users have assorted privacy settings accessible to them, by which they may curb access to their content and seal their profile so that others cannot look at their posts nor zoom into and download their profile pictures unless otherwise permitted by the user.

It is submitted that Facebook even initiated the feature named ‘Profile Picture Guard’ and ‘Audience selector’, which provide users more control over their profile pictures and other content available on their social media accounts. It is asserted that similar features are also available on the Instagram social media platform.

In any case, Mr. Tripathi submitted, that Facebook has in the past, and is also ready and willing in future, to cooperate with an aggrieved party and with law enforcement agencies to remove offending content following applicable law, and most certainly under any court order made in that regard.

Surveillance and decision

A single-judge bench comprising of Justice Anup Jairam Bhambhani, after analyzing various past judgments and several arguments which were brought in front of him from the petitioners and the respondents held “that apart, the inclusion of the name and/or likeness of a person on such website, 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 a breach of the person’s privacy, which a court may, in appropriate cases, injunct or restrain. Such publication would likely result in ostracization and stigmatization of the person concerned in society, and therefore immediate and efficacious remedy is required in such cases.

Delhi High Court even mandates intermediaries to remove and disable access to offending content once they receive ‘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.

In the first instance, therefore, 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.

In the opinion of this court, 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 since no purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant.

The court observed that under the 2021 Rules, as part of the due diligence to be exercised by it, an intermediary is now required by way of its rules and regulations, privacy policy, or user agreement 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.

Suggested directions which are ordinarily issued to the concerned parties 

Based on a ‘grievance’ brought before it, as envisaged in Rule 2(1)(j) of the 2021 Rules, and upon a court being convinced by any proceedings before it, whether at the interim or final stage, that such grievance requires prompt redressal, the court may issue a direction to the website or online platform on which the antagonized content is posted, to delete such content from the website or online platform, instantly and in any event within 24 hours of receipt of the court order. considering this timeframe is mandated in Rule 3(2)(b) of the 2021 Rules read with Rule 10 of the 2009 Rules for other similar kinds of offensive content, in the view of this court, the same timeframe ought to be applied if the court is satisfied that any offending content requires immediate removal.

Website or online platform on which the aggrieved content is posted to preserve all information and associated records relating to the offending content, so that evidence about the offending content is not annihilated, at least for 180 days or such longer period as the court may direct, for use in investigation, in regard with Rule 3(1)(g) of the 2021 Rules.

A direction to the search engine(s) should also be issued by the court as the court may deem fit, to make the offending content non-searchable by ‘de-indexing’ and de-referencing the offending content in their listed search results, including de-indexing and de-referencing all concerned web-pages, sub-pages or sub-directories on which the offending content is found A few most commonly used search engines in India are Google Search, Yahoo Search, Microsoft Bing, and DuckDuckGo.

The intermediary must be duty-bound to adhere to a court order directing removal or disabling access to offending content within twenty-four hours from receipt of such order.

Websites/online platforms/search engine(s), to undertake to employ pro-active monitoring by using automated tools, to determine and remove or disable access to any content which is ‘exactly identical’ to the offending content that is the subject matter of the court order, as envisaged in Rule 4(1)(d) of the 2021 Rules.

The concerned law enforcement agencies should be directed to attain from the concerned website or online platform all details and associated records, comprising all unique identifiers connected to the offending content such as the URL (Uniform Resource Locator), account ID, handle name, Internet Protocol address and the hash value of the actual offending content along with the metadata, subscriber information, access logs and such other information as the law enforcement agency may require, with Rule 3(1)(j) of the 2021 Rules, as soon as possible but not later than seventy-two hours of receipt of written intimation in this behalf by the law enforcement agency.

The court may also direct the aggrieved party to file a charge on the National Cyber-Crime Reporting Portal, to commence the process furnished for grievance redressal on that portal.

The court must refer to the provisions of section 79(3)(a) and (b) read with section 85 of the IT Act and Rule 7 of the 2021 Rules, whereby an intermediary would forfeit the exemption from liability relished by it under the legal provisions if it were to fail to observe its obligations for removal/access disablement of offending content despite a court order to that effect.

General Directions in this matter

The petitioner is directed to furnish in writing to the Investigating Officer of the subject FIR, all possible information relating to the offending content, consisting of the Image URL and Web URL connected to the offending image files, within 24 hours of receipt of a copy of this judgment.

The Delhi Police/CyPAD Cell is directed to remove/disable access to the offending content, the Web URL and Image URL of which would be furnished by the petitioner as above, from every website and online platforms, instantly and in any event within 24 hours of receipt of information from the petitioner.

Search engines- Google Search, Yahoo Search, Microsoft Bing, and DuckDuckGo, to globally de-index and de-reference from their search results the offending content as identified by its Web URL and Image URL, including de-indexing and de-referencing all concerned web-pages, sub-pages, or sub-directories on which the offending content is found, forthwith and in any event within 24 hours.

A further direction is issued to the search engines Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo, to undertake 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 Delhi Police is directed to obtain from the concerned website, namely www.xhamster.com, and the search engines all information and associated records relating to the offending content forthwith and in any event within 72 hours of receipt of a copy of this judgment, the Delhi High Court added that the individual who will not comply with the above directions would be liable to forfeit the exemption if any, available to it generally under section 79(1) of the IT Act and as specified by Rule 7 of the 2021 Rules and shall make such body and its officers liable for action as mandated by section 85 of the IT Act.

Conclusion

The internet never sleeps; and the internet never forgets.

The current case presented a magnificent opportunity to the Delhi High Court to concretize the law related to the given issue. Justice Anup Jairam Bhambhani very commendably delivered this judgment dealing with one of the most sensitive matters. He dealt with the issue in a very practical and viable manner. Delhi High Court gave its decision after considering each aspect of the case at great length.

In the opinion of the author, the present judgment will bring a noticeable impact on society in this digital era.


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