The Delhi High Court on Tuesday issued guidelines aimed at meaningfully acting against the publication of unauthorised or offensive content on the internet (X v Union of India and ors).
The order was passed by Justice Anup Jairam Bhambhani, who opined that for an order directing the removal of offending internet content to be effective, “a search engine must block the search results throughout the world.”
“No purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant,” the judge further observed.
The Court also noted the Canadian Supreme Court’s observation in the case of Google Inc. v. Equustek Solutions Inc. et al that de-indexing of offending content globally only requires Google to take steps to control its search engine, which Google has acknowledged it can do.
The Delhi High Court pointed out that search engines are already employing automated tools to prevent the generation of links to child pornography and hate speech. These tools can be equally used to effectively implement a court order against offensive content, it was observed.
“None of this would impose upon the website, online platform or search engine(s) any obligation to generally monitor content or to adjudicate the illegitimacy of any content or operate as a prior restraint or a blanket ban or censorship of content generally,” Justice Bhambani further said.
The integrity of the court process has to be protected in the most effective way, the anarchical nature of the internet notwithstanding, the Court highlighted.
“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,” it added.
Guidelines issued by the Court
Court order for removal of offensive content
- The Court may issue a direction to the website or online platform on which the offending content is hosted, to remove such content from the website or online platform, forthwith and in any event within 24 hours of receipt of the court order.
- Such order may be passed based on a ‘grievance’ brought before it, as contemplated in Rule 2(1)(j) of the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, or otherwiseand upon a court being satisfied that such grievance requires immediate redressal.
- The time frame under Rule 3(2)(b) of the 2021 Rules read with Rule 10 of the 2009 IT Rules for other similar kinds of offensive content ought to be applied if the Court is satisfied that any offending content requires immediate removal.
Directions to be issued to the online platform hosting offensive content
- A direction should also be issued to the website or online platform on which the offending content is hosted to preserve all information and associated recordsrelating to the offending content,so that evidence in relation to the offending content is not vitiated, at least for a period of 180 days or such longer period as the court may direct, for use in investigation, in line with Rule 3(1)(g) of the 2021 Rules.
Direction to be issued to search engines and intermediaries
- A direction should also be issued by the court to the search engine(s)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.
- This would be in line with the obligation of search engines to disable access to the offending content under the Second Proviso to Rule 3(1)(d) of the 2021 IT Rules.
- In the opinion of this court, the intermediary must be obliged to comply with a court order directing removal or disabling access to offending content within twenty-four hours from receipt of such order.
- The directions issued must also mandate the concerned intermediaries, whether websites/online platforms/search engine(s), to endeavour to employ pro-active monitoring by using automated tools, to identify and remove or disable access to any content which is ‘exactly identical’ to the offending contentthat is subject matter of the court order, as contemplated in Rule 4(1)(d) of the 2021 Rules;
Directions to law enforcement agencies
- Directions should be issued to the concerned law enforcement agencies, such as the jurisdictional police, to obtain from the concerned website or online platform all information and associated records, including:
(a) All unique identifiers relating to the offending content such as the URL (Uniform Resource Locator), account ID, handle name, Internet Protocol (IP) address and hash value of the actual offending content
(b) Metadata, subscriber information, access logs and such other information as the law enforcement agency may require,
This is in line with Rule 3(1)(j) of the 2021 Rules and should be obtained as soon as possible, but not later than 72 hours of receipt of written intimation in this regard by the law enforcement agency.
How the aggrieved party should be directed to proceed
- The court must direct the aggrieved party to furnish to the law enforcement agency all available information that it possesses relating to the offending content. This may include the file name, Image URL, Web URL and other available identifying elements of the offending content.
- A further direction should be issued to the law enforcement agency to furnish such information to all other entities such as websites/online platforms/search engines to whom directions are issued by the court in the case.
- The aggrieved party should also be permitted, on the strength of the court order passed regarding specific offending content, to notify the law enforcement agency to remove the offending content from any other website, online platform or search engine(s) on which same or similar offending content is found to be appearing, whether in the same or in a different context.
- Upon such notification by the aggrieved party, the law enforcement agency shall notify the concerned website, online platform and search engine(s), who would be obligated to comply with such request.If there is any technological difficulty or other objection to so comply, the website, online platform or search engine(s) may approach the concerned court which passed the order, seeking clarification but only after first complying with the request made by the aggrieved party.
- The 2021 Rules now specifically provide that offending content may be removed in the first instance, giving to any interested person as specified in Rule 4(8,) the liberty to object to such removal and to request for reinstatement of the removed content.
- The court may also direct the aggrieved party to make a complaint on the National Cyber-Crime Reporting Portal (if not already done so), to initiate the process provided for grievance redressal on that portal.
Consequences of failure by intermediaries to comply with court’s order
- Most importantly, 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, wherebyan intermediary would forfeit the exemption from liability enjoyed by it under the law if it were to fail to observe its obligations for removal/access disablement of offending content despite a court orderto that effect.
The judge further observed that the guidelines intend to strike “a fair balance between the obligations and liabilities of the intermediaries and the rights and interests of the aggrieved user/victim…which would be legal, implementable, and effective and would enable meaningful compliance of the orders of a court without putting any impossible or untenable burden on intermediaries.”
The case before the Court
The case triggering the discussion involved a grievance raised by a woman over her private photos being posted on pornographic websites without her permission.
The photos by themselves were not objectionable, the Court was informed. However, by the unauthorised publication of these photos on a pornographic platform, the errant entities had appealed to prurient interest, thereby committing offences under the Information Technology Act and the Indian Penal Code, it was claimed.
Summing up the challenges implicit in tackling cases like this, the Court commented,
“The internet never sleeps; and the internet never forgets!..despite orders of this court, even the respondents who were willing to comply with directions issued to remove offending content from the world-wide- web, expressed their inability to fully and effectively remove it in compliance with court directions; while errant parties merrily continued to re-post and re-direct such content from one website to another and from one online platform to another, thereby cocking-a-snook at directions issued against them in pending legal proceedings.”
Detailed arguments in the matter were made by Amicus Curiae Dr Pavan Duggal, Senior Advocate Rahul Mehra for the Delhi Police, Senior Advocate Sajan Poovayya for Google, Senior Advocate Parag Tripathi for Facebook and Instagram, and Senior Advocate Meet Malhotra for the Internet Service Providers Association of India. Advocate Sarthak Maggon appeared for the petitioner. Submissions on behalf of the Ministry of Electronics and Information Technology were also heard.
All respondent parties expressed challenges in tackling the issue raised. The Delhi Police raised concerns regarding the non-cooperation or reluctance of social media entities to divulge information during the investigation.
Google argued that the role of a search engine is limited to disabling access to specific URLs by effacing or removing such URLs from the search results, once ordered by a court or government authorities. The search engine added that it cannot be tasked with adjudicating the legitimacy of internet content and that prior restraint orders may affect legitimate or justified content and violate the freedom of speech and expression.
It was also argued by Google that image-based results may be harder to identify and retrieve than text-based results. Content cannot be made non-searchable by the search engine, Google submitted. It added that this can be done only by the webmaster or the owner of the website/online platform.
The Bench responded to Google’s concerns by observing:
“Google LLC’s objection to orders of prior restraint or blanket ban of content is wholly unnecessary and misplaced, inasmuch as, far be it from this court to contemplate any prior restraint or blanket ban on free speech or expression…”
It went on to add,
“…the only effort in the present proceedings is to effectively implement directions and orders made for removal or de-indexing of content which has been considered or found to be unlawful and there is no question of any prior restraint or blanket ban orders being issued, least of all in these proceedings...”
The Court proceeded to issue the above guidelines after remarking that it “cannot permit itself to resign to the cat-and-mouse game of errant parties evading court orders by re-posting offending content across the world-wide-web, in an act of defiance and contumacy.”
In line with the guidelines issued, the Court also issued directions so that the petitioner’s grievance may be addressed. The re-posting of the petitioner’s photographs on a pornographic platform without her permission prima facie amounts to an offence under Section 67 of the IT Act in addition to other offences under the IPC, the Court noted.