"Search engines can't feign helplessness": Delhi High Court issues directions to stop dissemination of non-consensual intimate images on internet

The Delhi High Court on Wednesday issued a series of directions to the Central government, Delhi Police and social media intermediaries to ensure that Non-Consensual Intimate Images (NCII) of individuals uploaded on the internet are removed expeditiously and not published again. .Pertinently, the Court said that search engines cannot feign helplessness when it comes to removal of or disabling access to links containing such illegal content."A search engine plays an important role in the dissemination of content and its powers in connecting the said content to the consumers is undeniable. When viewed in this light, it is unfathomable as to how a search engine can feign helplessness when it comes to removal of or disabling access to links which prima facie contain content that is illegal as declared by the Court," the High Court said.Justice Subramonium Prasad passed the directions after noting that these directions are necessary to ensure that such cases are dealt in a manner that minimises the trauma caused to the victim and complaints are resolved expeditiously. The Court held that the social media intermediaries as well as search engines have the technology to trace and remove such content and to prevent is re-publication. .In an order running into 88 pages, the court ordered that on receiving information of the NCII content which is punishable under Section 66E of the Information Technology (IT) Act, the Delhi Police must immediately register a formal complaint, initiate investigation and bring the perpetrators to book as soon as possible so as to prevent the repeated publication of the unlawful content.Justice Prasad directed that every district cyber police station must have an assigned officer to liaise with the intermediaries against which grievances have been raised by the victim and an endeavour should be made to ensure that the grievance is resolved within the time schedules stipulated under the IT Rules. "The intermediaries are directed to cooperate unconditionally as well as expeditiously respond to Delhi Police, and thereafter follow the time schedules under the IT Rules," the Court underscored. It said a fully-functioning helpline which is available round-the-clock should be devised for the purpose of reporting NCII content and operators and individuals manning this helpline must be sensitised about the nature of NCII content and must, under no circumstances, indulge in victim-blaming or shaming the victim. "Considering the impact that NCII content has on the mental health of its victims, these operators should also have a database of organisations with registered counsellors, psychologists and psychiatrists available for reference to the victims. The Delhi Legal Services Authority may also be apprised and engaged in case the victims need legal aid.".The bench said that search engines must employ the already existing mechanism with the relevant hash-matching technology on the lines of the one developed by Meta to trace and remove the content. "They cannot be allowed to avoid their statutory obligations by stating that they do not have the necessary technology, which is patently false as has been exhibited during the course of hearing," Justice Prasad said. He added, "The timeframe as stipulated under Rule 3 of the IT Rules must be strictly followed without any exceptions, and if there is even minor deviation from the said timeframe, then the protection from liability accorded to a search engine under Section 79 of the IT Rules cannot be invoked by the search engine.".Justice Prasad further said that when a victim approaches the court for a takedown order in a matter involving NCII content, they must file an affidavit in a sealed cover identifying the specific audio, visual images and key words that are being complained against, in addition to the allegedly offending URLs for ex facie determination of their illegality..The Court passed the directions while dealing with a petition filed by a woman seeking blocking of certain sites exhibiting her intimate images. The petitioner also sought registration of a First Information Report (FIR). It was informed that the petitioner woman was befriended by a man named Richesh Manav Singhal who took advantage of the absence of her family members, came over to her place and forced himself upon her. He allegedly not only clicked explicit pictures of the woman, but also involved her minor son in various sexual acts. The images were later leaked on various porn websites. Though the petitioner woman approached the Grievance Cells of Google, Microsoft, YouTube and Vimeo, her explicit images were not taken down. It was later informed that the accused Richesh Manav Singhal and one Shweta Chhabra had been arrested after an investigation at their residence which led to the discovery of more than 83,000 explicit pictures, including that of the petitioner. .Though the case became infructuous, the court expanded the ambit of the petition. It also appointed Senior Advocate Saurabh Kirpal as amicus curiae in the matter..After considering the submissions of the social media intermediaries, Google and the amicus, the Court held that a person's right to privacy is also inextricably linked with the right to live a life with dignity. The judge said that individuals have a reasonable expectation to privacy which is not lost within the confines of a domestic relationship, or even if any intimate image is shared with another person with the understanding and the expectation that the same will not be shared with third persons. "The context in such situations matter with privacy being the expectation that information about an individual will be treated appropriately and in accordance with the individual’s expectations; it is the said individual who retains control over any information pertaining to themselves. As a corollary, if the individual has the right to informational privacy, it also subsumes the individual’s right to be forgotten which has been held to be the consequence of the dignity of an individual and, thus, a facet of the right to privacy.".The Court also dealt with the role played by the search engines like Google and said that it is unfathomable that a search engine can feign helplessness when it comes to removal of or disabling access to links which prima facie contain content that is illegal as declared by the Court."There resides a social obligation in these intermediaries to be proactive in de-indexing such links when it comes to its knowledge that such content is illegal. This Court finds the suggestion untenable that the user/victim must approach either the intermediary in question or the Courts every single time the NCII content is duplicated. Such a suggestion also frustrates the legislative intent behind the IT Rules which devises a time-bound schedule in removal of such content. An approach that entails the victim/user having to sift through the internet to identify and then share every URL hosting their NCII is unconscionable in the eyes of this Court.".Advocates Sanjeev Mahajan and Sachin Tandan appeared for the petitioner. Central Government Standing Counsel Anurag Ahluwalia along with advocates Gursihar Preet Singh, Danish Faraz Khan appeared for the Central government. Additional Standing Counsel Nandita Rao appeared for the State. Senior Advocate Arvind Nigam along with advocates Mamta Rani Jha, Shruttima Ehersa, Rohan Ahuja, Vatsalya Vishal and Riya Gupta represented Google. Senior Advocate Jayant Mehta with advocates Anushka Sharda, Madhav Khosla, Moha Paranjpe appeared for Microsoft. Advocates Debopriyo Moulik and Shweta Chabbra appeared for Respondent No. 10. Senior Advocate Saurabh Kripal appeared as amicus curiae. He was assisted by Tanima Gaur, Sidhant Kumar, Manyaa Chandok and Vidhi Udayshankar. .[Read Judgment]