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SUPREME COURT OF INDIA
MADAN B. LOKUR, UDAY UMESH LALIT, JJ.
In Re: Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence and Recommendations - Petitioners
SMW (Crl.) Nos. 3 of 2015
Decided On : 23-10-2017
NGO-Prajwala - Sexual Violence Videos - [Information Technology Act, 2000 - Section 67B], [Indian Penal Code - Section 376, Section 376D, Section 354A], [Protection of Children from Sexual Offences Act, 2012 - Section 13, Section 14] - The court discussed the feasibility of ensuring that objectionable videos pertaining to child pornography, gang rape, and rape are not made available on the internet. The key legal provisions referenced and discussed by the court include Section 67B of the Information Technology Act, 2000, which deals with publishing or transmitting material depicting children in sexually explicit acts, Section 376 and Section 376D of the Indian Penal Code, which deal with punishment for rape, and Section 354A of the Indian Penal Code, which deals with sexual harassment and punishment for sexual harassment. Additionally, the court referred to Section 13 and Section 14 of the Protection of Children from Sexual Offences Act, 2012, which deal with use of child for pornographic purposes and punishment for storing and distributing child pornography.
Fact of the Case:
NGO-Prajwala informed the court about the circulation of videos depicting sexual violence. A Committee was constituted to advise the court on the feasibility of preventing the circulation of such videos, with a focus on protecting the identity and reputation of the victims.
Finding of the Court:
The Committee submitted a comprehensive report with proposals and recommendations, and the court expects the parties, including the Government of India, to abide by the recommendations on which there is consensus and to try and implement them at the earliest. The court also directed the Government of India to prepare a status report on the implementation of the recommendations and place it before the court in a sealed cover.
Issues: Feasibility of preventing the circulation of objectionable videos depicting sexual violence, consensus on proposals and recommendations, and implementation of recommendations by the Government of India.
Ratio Decidendi: The court emphasized the need to protect the identity and reputation of the victims and prevent the circulation of objectionable videos depicting child pornography, gang rape, and rape. The court also highlighted the importance of implementing the recommendations to address the issue effectively.
Final Decision: The matter was listed for the next hearing to deal with the proposals on which there is no consensus, and the court made it clear that the proceedings would be held in-camera.
ORDER :
On 18th of February, 2015, this Court had received a letter from NGO-Prajwala to the effect that videos of sexual violence were being circulated in abundance.
2. After hearing learned counsel for the parties, an order was passed on 22nd March, 2017 constituting a Committee to assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation, apart from anything else, to protect the identity and reputation of the victims and also because circulation of such videos cannot be in public interest at all.
3. We had expected the Committee to preferably arrive at a consensus on the possibility of ensuring that objectionable videos pertaining to child pornography, gang rape and rape are not made available on the internet. For some technical reasons, if that was not possible to explain and detail the reasons why it was not possible.
4. The Committee was constituted under the Chairmanship of Dr. Ajay Kumar, the then Additional Secretary, Ministry of Electronics and Information Technology. The following persons participated in the deliberations of the Committee :
2. Sh. Arvind Kumar, GC, Cyber Laws and e-Security, MeitY.
3. Dr. Sanjay Bahl, DG, Cert-In;
4. Sh. Rakesh Maheshwari, Scientist G, MeitY;
5. Sh. Sunil Pant, Deputy Secretary, MHA;
6. Sh. Chakit Swarup, Product Manager, Digital India, MHA;
7. Ms. Aparna Bhat, Counsel for the Petitioner;
8. Ms. N.S. Nappinai, Amicus Curiae;
9. Sh. Vikram Langeh, Manager Trust & Safety, Facebook;
10. Dr. Jim Hunt, Software Engineer, Facebook;
11. Sh. Michael Yoon, Policy Manager, Safety & Content, Facebook;
12. Dr. Anthony Surleraux, Child Safety, Google;
13. Dr. Ksenia Duxfield Karyakina, Policy, Google;
14. Ms. Gitanjli Duggal, Legal, Google India;
15. Sh. Robin Fernandes, Grievance Officer, Yahoo;
16. Sh. S. Chandrasekhar, Group Director, Microsoft;
17. Dr. Radhakrishnan Srikanth, Group Program Manager, Microsoft;
18. Sh. Balakrishnan Santhanam, Sr Program Manager, Microsoft;
19. Ms. Keyla Maggessy, Law Enforcement Response Manager, WhatsApp;
20. Ms. Gayle Argon, Legal WhatsApp.
5. The Committee commenced its proceedings on 5th April, 2017 and met virtually on day to day basis. The Committee also took the advice of the experts who made presentation before the Committee. The experts are:
1. Ms. Susie Hargreaves, CEO and Mr. Fred Langford, Dy. CEO, Internet Watch Foundation (IWF), UK;
2. Professor Venkatesh Babu, IISc. Bengaluru:
3. Mr. John Shehan, NCMEC, USA;
4. Sh. Atul Kabra, Security Expert, FireEye, Bengaluri;
6. Certain inputs were also received from various other experts being :
1. Dr. Hany Farid, Professor & Chair, Computer Science, Dartmouth College, USA.
2. Dr. Mayank Vatsa, Mayank Vatsa, PhD, Adjunct Associate Professor, West Virginia, USA.
3. Dr. C.V. Jawqaqhar, Associate Professor, IIIT, Delhi.
4. Prof Dr. Anderson Rocha, Associate Dean, Institute of Computing, UNVIERSITY OF CAMPINAS, SP - BRAZIL.
7. Presentations and papers were also discussed by the Committee and the following presentations and submissions were made:
1. Presentation by Ms. Aparna Bhat, Advocate for Petitioner/Committee.
2. Presentation by Ms. N.S. Nappinai, Amicus Curiae/Committee Member.
3. Submission by Facebook representatives.
4. Presentation and Submission by Google representatives.
5. Presentation and Submission by Microsoft representatives.
6. Submission by Yahoo representative.
7. Combined industry submission of Google, Yahoo, Microsoft and Yahoo.
8. Presentation by Ministry of Home Affairs representative.
9. Written submission by WhatsApp.
10. Oral Presentation of NCMEC, USA and formal response to written queries.
11. Submission by Internet Watch Foundation (IWF), UK.
12. Presentation of Internet Watch Foundation (IWF), UK.
13. Presentation of Mr. Atul Kabra.
8. The submissions of learned senior counsel for WhatsApp Inc. were taken into consideration as
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