Intermediaries can't remain mute spectators when online illegality is brought to notice: Rajasthan High Court

The Rajasthan High Court recently stressed that social media platforms cannot remain passive when unlawful content appears on their platforms and must act promptly once it is brought to their notice. [Mohan Ram v State of Rajasthan & Ors]

Justice Farjand Ali made the observation while directing authorities to coordinate with Meta Platforms to ensure the removal of obscene and private images of a minor boy that were allegedly circulating on Instagram.

“Any inaction or delayed response on the part of the intermediary, in such sensitive matters, would amount to a failure in discharging the due diligence obligations cast upon it under the IT Act,” held the Court.

The Court was hearing a petition filed by a man whose minor son’s private and obscene images were allegedly circulated on social media with the intention of tarnishing the family’s reputation.

The petitioner told the Court that despite lodging a complaint with the local police seeking registration of a First Information Report (FIR), no effective action had been taken and the content continued to remain online.

Emphasising the duties of online platforms under the Information Technology Act and the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the Court held,

“The law imposes a positive and continuing obligation upon intermediaries, particularly social media platforms, to act with a heightened sense of responsibility while operating in the digital domain."

The Court noted that intermediaries are required to take steps to prevent the misuse of their platforms and to curb the spread of unlawful content.

“The rule casts a duty upon the intermediary to take all reasonable measures to prevent the misuse of its platform. The intermediary cannot remain a silent spectator but is expected to actively discourage and restrict the dissemination of content which is unlawful or injurious in nature,” said the Court.

It emphasised that once unlawful content is reported, platforms must act quickly to prevent further harm.

“The moment such unlawful content is brought to the notice of the intermediary, whether through a complaint, representation, or otherwise, it is incumbent upon the platform to act expeditiously and take all necessary measures to remove, block, or disable access to the offending material."

The Court further stressed that safe harbour protection under Section 79 of the Information Technology Act (which protects social media platforms from liability for user content if they remove illegal material when notified) is conditional and depends on intermediaries exercising due diligence.

Quoting the Supreme Court’s decision in Justice KS Puttaswamy v Union of India (2017), the Court said that privacy forms an essential component of life and personal liberty.

It also reflected on the long-term consequences of non-consensual sharing of intimate content in the digital age.

“The injury occasioned by such acts is not transient; rather, it leaves behind what may aptly be described as an enduring digital scar, a permanent imprint upon the life, dignity, and identity of the victim, which continues to resurface with every access, share, or circulation of such content,” noted the Court.

Such misuse of personal data, the Court added, could also have a broader impact on digital freedoms. It warned that,

“The fear of misuse of personal data and intimate content may deter individuals from freely expressing themselves or engaging in digital spaces, thereby undermining the very fabric of a free and open society.”

Ultimately, the Court directed the Central government to coordinate with Meta Platforms to ensure the permanent removal of all obscene and private images related to the petitioner’s son circulating on Instagram. It further directed that if the account allegedly responsible for sharing the material is verified, the platform must take steps to deactivate and permanently suspend it.

The Court also granted liberty to the petitioner to approach the Court again in case of non-compliance with its directions.

Advocate Rajak Khan represented the petitioner.

Advocate TC Sharma appeared on behalf of the Union of India.

[Read Order]