In a comprehensive speaking order , Honourable Justice Anup Jairam Bhambhani of the Delhi High Court has issued a judgement dated 20th April 2021 in the case WP (CRL) 1082/2020 and other petitions, holding light on the rules under Section 79 of ITA 2000.
Some details are available at lielaw.in in the following article.
The judgement takes into account even the recent notification of February 25 on Intermediary Guidelines and Digital Media Code of Ethics.
The judgement also contains the submissions of Mr Pavan Duggal the noted Cyber Law expert where a good summary of the applicable law is available. Given the international experience of Mr Pavan Duggal who was the Amicus Curiae in the hearing, the judgement will be a very useful reference document for all students of Cyber Law.
Interestingly the judgement has linked the “Need to remove” the content to the judgement in the case of “Baba Ramdev’s case” where content uploaded from India had to be removed globally from the search engines.
The judgement requires a detailed analysis and may be done in due course on this website. It is to be appreciated that this hearing perhaps took place through the video conferencing system proving that the E Court procedures are effective and can be used as a regular procedure.
The conclusions lead to the following directions being issued:
“….the action of the petitioner’s photographs and images having been taken from her Facebook and Instagram accounts and having been posted on the website www.xhamster.com; and then having been re-posted onto other websites and online platforms, amounts prima facie to an offence under section 67 of the IT Act in addition to other offences under the IPC; and that appropriate directions are required to be issued directing the State and other respondents to forthwith remove and/or disable access to the offending content from the world-wide-web to the maximum extent possible.
….The Delhi Police/CyPAD Cell are directed to remove/disable access to the offending content, the Web URL and Image URL of which would be furnished by the petitioner as above, from all websites and online platforms, forthwith and in any event within 24 hours of receipt of information from the petitioner. It may be recorded that the Delhi Police have stated before this court that the offending content has already been removed from
respondent No. 5 website www.xhamster.com;
….A direction is issued to the search engines Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo, to globally de-index and de-reference from their search results the offending content as identified by its Web URL and Image URL,… and to proactively identify and globally disable access to any content which is exactly identical to the offending content, that may appear on any other websites/online platforms
…Investigating Officer to notify such website/online platform or search engine(s) to comply with such request, immediately and in any event within 72 hours of receiving such written communication from the petitioner;
…It is made clear that non-compliance with the foregoing directions would make the non-compliant party liable to forfeit the exemption, if any, available to it generally under section 79(1) of the IT Act and as specified by Rule 7 of the 2021 Rules; and shall make such entity and its officers liable for action as mandated by section 85 of the IT Act
The judgment is a landmark judgement that will be referred to for a long time though it is not from the Supreme Court.