The Delhi High Court (HC) has directed search engine giants Microsoft and Google to approach a single judge and seek a review of an earlier order demanding proactive identification and de-indexing of non-consensual intimate images (NCII).
This development comes after both companies appealed the initial ruling passed in April 2023. The central argument presented by the appellants' counsels revolved around the limitations of current technology.
Unlike child sexual abuse material, they claimed, NCII detection is beyond the capabilities of their existing systems. This technological hurdle renders them unable to comply with the single judge's directive.
While acknowledging the development of new technologies aimed at tackling NCII, the counsels emphasized that these are not yet mature enough for independent content detection.
They further clarified that search engines don't function as content hosts. Once flagged content is removed from the original hosting site, it automatically disappears from search results as well.
Recognising the practical challenges, a bench led by Acting Chief Justice Manmohan advised the tech companies to seek a reconsideration of the directions from the single judge who issued the original order.
"No one can ask you to do the impossible," the bench remarked, paving the way for a potential revision of the initial ruling.
Justice Manmohan, joined by Justice Manmeet PS Arora, elaborated on the process: "Keeping view of the aforesaid, it would be appropriate if the appellants file a review and bring the aforesaid facts to the notice of the single judge. In the event the appellants are aggrieved by order of the single judge in the review petition, the appellants shall be at liberty to revive the present appeals."
A concern regarding potential coercive action for non-compliance with the initial order was raised by Google's counsel. The court, however, clarified that no such action has been initiated thus far.
The April 2023 order stemmed from a petition filed by a woman seeking to block specific websites displaying her intimate pictures without her consent.
The judge presiding over the case emphasized the responsibility of search engines to act swiftly in blocking access to such offensive content.
The core principle is to shield victims from the humiliation and harassment of repeatedly approaching authorities for the same relief.
The ruling highlighted the damaging impact of NCII abuse, often referred to as "revenge porn."
It was recognized as a violation of an individual's right to privacy, with the potential to inflict severe psychological trauma.
The single judge stressed the importance of due diligence for search engines under Rule 3 of the Information Technology (IT) Rules.
This includes taking reasonable measures to prevent the hosting, displaying, uploading, or sharing of content that pries into another person's privacy or contravenes existing laws. Failure to comply could result in the forfeiture of the liability protection granted to search engines under Section 79 of the IT Act.
The judge further elaborated on the specific obligations in cases involving NCII content. "If information is relating to content which is prima facie in the nature of any (NCII) material...," the judge asserted, "the search engine is required to take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it."
The order also mandated strict adherence to the timeframes stipulated under Rule 3 of the IT Rules. Any deviation, however minor, could potentially render the liability protection under Section 79 inapplicable to the search engine.
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