Point of Law: Pornographic website – Social media account compromised - Removal or access disablement of offending content to be effective even within India, a search engine must block the search results throughout the world -since no purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant

JUDGMENT :

ANUP JAIRAM BHAMBHANI, J.

The internet never sleeps ; and the internet never forgets ! The true enormity of this fact has dawned over the course of hearings conducted in the present matter, when it transpired that despite orders of this court, even the respondents who were willing to comply with directions issued to remove offending content from the world-wideweb, 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-asnook at directions issued against them in pending legal proceedings.

2. As submitted by Mr. Sarthak Maggon, learned counsel appearing for the petitioner, the principal grievance of the petitioner is that her photographs and images that she had posted on her private social media accounts on ‘Facebook’ and ‘Instagram’ have been taken without her knowledge or consent and have been unlawfully posted on a pornographic website called ‘www.xhamster.com’ by an unknown entity called ‘Desi Collector’ whereby the petitioner’s photographs and images have become offensive by association. While certain other details of the petitioner and the photographs taken from her social media accounts have been recited in the petition, the same are not being recorded here for reasons of privacy and confidentiality. The petitioner claims that her social media accounts had the requisite ‘privacy settings’ activated and yet these accounts were compromised, and her photographs and images were taken and placed on the pornographic website. It is the petitioner’s contention that even though her photographs and images are otherwise unobjectionable, by placing the same on a pornographic website, the errant respondents have ex-facie committed the offence of publishing and transmitting material that appeals to the prurient interests, and which has the effect of tending to deprave and corrupt persons, who are likely to see the photographs, which is an offence under section 67 of the Information Technology Act 2000 (‘IT Act’, for short). The petitioner also contends that the errant parties have attached captions to her photographs, which act falls within the mischief of other penal provisions of the IT Act and the Indian Penal Code 1860 (‘IPC’, for short).

3. When the petitioner filed the present writ petition, she claimed she had already filed a complaint on the National Cyber-Crime Reporting Portal as well as to the jurisdictional police but to no avail; and by reason of inaction on the part of the authorities, the photographs had received some 15000 views within a week of being posted.

4. Since the particulars of respondents Nos. 5 and 6, namely the pornographic website and the unknown entity, which it is claimed was responsible for placing the petitioners photographs on that website, were not available in the petition, nor even their address, no notice was issued to the said respondents in the beginning. Considering the nature of the matter, the said two respondents would not be required to be heard at least in the present proceedings but may defend themselves at the hands of the state respondents including the jurisdictional police subsequently; and considering the nature of the order that this court proposes to pass in the present proceedings, it was not considered necessary to await the service of the said two respondents.

5. In the course of preliminary hearings in the matter it transpired that the specialised cybercrime unit of the Delhi Police, namely the Cyber Prevention Awareness and Detection Unit (CyPAD), submitted before this court that while it was ready and willing to comply with the court directions of removing/disabling access to the offending content relating to the petitioner, by reason of technological limitations and impediments, it could not assure the court that it would be able to entirely efface the offending content