ANALYSIS OF JUDGEMENT-X

Respondents:Union of india

Date of judgement:  April 20,2021

Judges obn bench :Anup Jairam Bhambhani

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 illicitly posted on a pornographic website www.xhamster.com with petitioner’s no knowledge or consent by an unknown entity named desi cllector whereby the petitioner photographs and pictures become offensive by association.The petitioner contended that her social media account had the requiste privacy settings activated and then also these accounts were compromised,and her photographs and images were taken and put on the pronographic website.The petitioner also asserted that even though her photographs and images are otherwise unobjectionable but by putting the same on a pronographic website,the aberrant respondent have ex-facie committed the offence of publishing and transmitting materail that appeals to 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 Information Technology Act,2000.

The petitioner even claims that 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 that the fact she had already filed a complaint on the National Cyber crime reporting portal as well as to jurisdiction police but no avail and also because of inaction on the part of authorities;the pictures had received around 15000 views within a week.

JUDICIAL PRECEDENTS IN FOREIGN JURISDICTIONS:

In X. Vs TwitterInc.,the hon’ble Supreme Court of New Soth Wales,Australia explained that equitable obligation of confidence arises upon an intermediary and holding that in certain cases the court may acquire statuory jurisdiction even over a foreign defendant.

In Equustek solutions Inc vs Jack,the Hon’ble Supreme Court of British Columbia had this to say that the effect of US order is that no action can be taken against Google to enforce the injuction in US 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 You tube vs LLC Geeta Shroff,the court holds that based on pleadings and 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 DFF,the court directed to remove any other material which the plaintiff may report as objectionable qua heri.e photographs relating to her or any other content relating to the plaintiff from any other account.

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 wibe web,directions ought to be issued to the concerned intermediaries under section 79(3) of the IT act for removal of such content as identified through unique identifiers such as URL,Account ID,Handle name etc of the content.

SUBMISSIONS OF GOOGLE  LLC : Mr.Sajan Poovayya,learned senior counsel appearing on the 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 search engine is reactive and is limited to disabling access to specific URL by effacing or removal such URL from the search results,once these are reported by the governmental agencies or ordered by the court;and that their role is not proactive.At the outset,a direction may be passed to the website hosting the alleged content to remove.Once the impunged content is removed from the actual websites,the same will be organically removed from the search engines.From the removal from the search engine,the court or an appropriate government agency can,upon holding thecontent to be unlawful,share the specific URL of the impugned content for the de-listing/cache removal.

SURVEILLANCE AND DECISION: A single judge bench comprising of Justice Anup Jairam Bhambhani,after analyzing various past judgements and several arguments which were brought in front of him from the petitioners and the respondent held that apart,the inclusion of the name and/or the likeness of a person on such website,even if the photograph of the person is not in itself obsence or offensive,without consent or concurrence,would at the very least amount to a breach of person’s privacy,which a court may in appropriate cases,injuct or restrain.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.

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 of the URL and the web URL connected to the offending image files,within 24 hours of receipt of a copy of judgement.The Delhi Police cell is directed to remove or disable access of 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 event within 24 hours of receipt of information from the petitioner.

SUBMISSIONS OF INTERNET SERVICES PROVIDERS ASSOCIATION OF INDIA: Mr.Meet Malhotra,a learned senior counsel appearing on the behalf of respondent no.3,therefore,ISPAI submitted that ISPAI do not curb the content  that goes is shared on the world wibe web.However,ISPAI members are mandated by law to acquiesce with every blocking order issued by the competent government authorities.

CONCLUSION:The current case represented a significant opportunity to the Delhi High Court to concretize the law relating to the given issue.Justice Anup Jairam Bhambhani very commendably delievered this judgment dealing with one of the most sensitive matters.He dealth 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.