The Supreme Court closed the Public Interest Litigation (PIL) filed for controlling the indiscriminate circulation of child pornography and videos of gang rape and rape through WhatsApp and other social media platforms after the expert committee appointed by the Court to address the issue submitted its report.
In 2015, the Court initiated this suo motu PIL in response to a letter sent by Prajwala to then-CJI HL Dattu.
A division bench composed of Justice B.R. Gavai and Justice Vikram Nath noted that the expert committee it had convened, which included representatives of various intermediaries such as Facebook and Whatsapp, as well as representatives from the Ministry of Electronics and Information Technology and the Amicus Curiae appointed by the Court, had reached a consensus on the larger issue and had made significant progress in addressing it. What remained to be monitored, according to the Court, were technical aspects of implementation, which the Union could oversee.
“We find that on larger issues there has been consensus, and substantial progress has been made to prevent the publishing of videos pertaining to child pornography, gang rape and rape.
This is not an adversarial litigation and the committee, with the assistance of the amicus and the counsel for the petitioners and the representatives of the intermediaries have come to a satisfactory conclusion. No doubt they are non-consensual issues on which a resolution was not possible.” the Court stated in its order.
In 2015, the Court initiated this suo motu PIL in response to a letter sent by Prajwala to then-CJI HL Dattu.
A division bench composed of Justice B.R. Gavai and Justice Vikram Nath noted that the expert committee it had convened, which included representatives of various intermediaries such as Facebook and Whatsapp, as well as representatives from the Ministry of Electronics and Information Technology and the Amicus Curiae appointed by the Court, had reached a consensus on the larger issue and had made significant progress in addressing it. What remained to be monitored, according to the Court, were technical aspects of implementation, which the Union could oversee.
The Additional Secretary of the Ministry of Electronics and Information Technology presided over a Court-appointed expert committee. Other committee members included representatives of intermediaries such as Facebook and WhatsApp, the Director General of CERT (Computer Emergency Response Team), the Joint Secretary of the Ministry of Home Affairs and the Group Coordinator (Cyber Laws) of the Ministry of Electronics and Information Technology, the petitioner, and the amicus curie appointed by the Supreme Court. The Court had periodically monitored the situation.
Aparna Bhat, representing the petitioner, argued that certain legal issues must be resolved, which requires court orders. She argued that issues of intermediary noncompliance continue to exist. She informed the Court that the Ministry had requested that auto-complete be disabled for explicit content searches and that a warning be displayed when such content is searched for. Bhat stated that the intermediaries have not yet complied.
She noted that a warning is only displayed in the ‘All’ section of a Google search for ‘Child Porn’. She pointed out that other verticals on the same page, such as under ‘videos’ or ‘images, lack such a warning. She stated that the same problem persists on Facebook. She also informed the Court that WhatsApp was requested to include a reporting button within the programme. “However, if you press that button today, there is no response.” How is this considered compliance?
Justice Vikram Nath asked the intermediaries ‘You have the technology to delete such videos. How are they still available?’ The petitioner is only pointing out what has not been done and what can be done. ‘You are capable of doing it and you are not doing it.‘ he said.
The petitioner stated that explicit recordings of the violence in Manipur have surfaced online, and that the Supreme Court has taken notice. They were being passed around. Circulation was achievable. She argued that if these filters were truly effective, these videos would not have been discovered.
In this regard, Justice Gavai stated, “The Manipur video went viral and was available for a considerable amount of time!”
According to Amicus Curiae N S Nappinal, appointed by the court as an amicus curiae, significant progress has been made on the larger issue. “The smaller issue can be resolved by ensuring that there is a protocol for responding to reports, so that the complainant can determine whether WhatsApp has taken action and there is no need to burden the police or court systems.” If action is not taken, they will have to go to justice,’ she explained.
Aravind Datar represented Facebook (now Meta), while Kapil Sibal represented WhatsApp.
Senior Counsel Aravind Datar stated that the Expert Committee has convened fourteen times since the Supreme Court ordered it to do so in its order dated 29.11.2022. According to him, the majority of the issues in the case have been resolved, and only a few technical details remain. ‘It is lamentable that she says this after 14 meetings and calls the proceeding a non-adversarial lawsuit! Regarding the petitioner’s submissions, he commented.
It is inaccurate to assert that we are not taking action. He stated, “We have taken extensive action.”
Datar stated that the majority of requirements had been met and that only a few technical issues remained. He informed the court, “We have established a grievance committee and are using artificial intelligence to identify child pornography, which is immediately removed.” Additionally, he claimed that in India, approximately 99 percent of such explicit content was removed by Meta before being reported. We are not flawless. He stated that billions of communications pass through Facebook daily. He suggested that the Ministry could monitor future instances of noncompliance.
Justice Gavai remarked in this regard, “It would have been a different matter if they lacked will, but the report itself demonstrates that they do have will, but there may be circumstances beyond their control.” Permit the government to investigate. The government exists to oversee. He asserted.
The Supreme Court, in concluding proceedings, stated:
Significant problems have been resolved. We conclude that it will not be necessary for this court to continue monitoring this issue, as it involves numerous technical concerns that cannot be monitored by this court. If any of the parties are aggrieved by the non-compliance of any of the provisions, they are free to bring it to the attention of the Union of India, which will take these aspects into account and attempt to resolve the matter. If there are still unresolved issues, the parties may petition this court for appropriate relief.”
Case Title: In Re: Prajwala Letter Dated 18.2.2015 Videos Of Sexual Violence And Recommendations, SMW(CRL.) NO. 3/2015
