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Uploading Photos Lifted From Social Media to Porn Sites Without Consent an Offence: Delhi HC

A bench of Justice Anup Jairam Bhambhani held that intermediaries are "mandated to remove and disable access to offending content".

New Delhi: The Delhi high court on Tuesday held that photographs which are lifted from Facebook and Instagram accounts and then uploaded on pornographic websites without the consent of such person amounts to an offence under section 67 of the IT Act, LiveLaw reported.

The court further said that even if the photographs are not obscene or offensive, even then such an act, without the consent of the person, would amount to a breach of the person’s privacy.

A single judge bench comprising of Justice Anup Jairam Bhambhani held that such intermediaries are “mandated 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. If the intermediary fails to disable or remove the content, then it would be liable to lose the exemption provided under section 79(1) of the IT Act.

The court also held that a search engine must “block” the search results throughout the world to ensure that such an order serves its purpose of preventing irreparable harm to a litigant. It said: “…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 judge made these observations while hearing a plea where the petitioner alleged that her images and details were taken without her knowledge or consent from her private social media accounts on ‘Facebook’ and ‘Instagram’, and were unlawfully posted on a pornographic website . This happened despite her “privacy settings” being activated on her social media accounts, she added.

Therefore, such a conduct is punishable under section 67 of the IT Act and will fall within the meaning of mischief under IPC and IT Act, the petitioner said, LiveLaw reported.

Also read: What Do We Talk About When We Talk About Pornography

The court also issued other guidelines for intermediaries with respect to such cases.

“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’, the court held.

The court also noted: “It is important to note that under Rule 4(4) a significant social media intermediary is now required to ‘endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information’ that depicts inter alia ‘any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary’. The intermediary is also required to display a notice to any user attempting to access such information, notifying that such information has been so removed or access-disabled.”

The court also held that the “offensive” content shall be removed from the website or online platform within 24 hours of receipt of the court order.

“Law enforcement agencies should be directed to obtain all unique identifiers relating to the offending content such as the URL (uniform resource locator), account ID, handle name, Internet Protocol address and hash value of the actual offending content alongwith the metadata, subscriber information, access logs and such other information as the law enforcement agency may require from concerned websites as provided under Rule 3(1)(j) of the 2021 Rules. The same must be done as soon as possible but not later than 72 hours,” the LiveLaw report said.