Supreme Court orders safeguards against online child sexual abuse material
New Delhi: The Supreme Court has taken serious note of lapses by social media platforms in curbing sexually explicit visual content depicting minors and directed that every intermediary must ensure that no such material, which has the potential to harm children, is offered, hosted, uploaded or promoted through a paywall or subscription, either directly or indirectly.
A bench of Justices JB Pardiwala and K Vinod Chandran said the court had repeatedly flagged non-compliance by social media intermediaries and platforms with its directions issued in 2024, but no action had been taken.
“Every intermediary must ensure that no CSEAM (Child Sexual Exploitation and Abuse Material), or any other material having the propensity or likelihood to harm children, is offered, hosted, uploaded, promoted or circulated through such paywall or subscription, either directly or indirectly,” the bench said.
It said the court had flagged how indirect links to such harmful material were being promoted and shared through social media algorithms to bypass the rigours of the special penal provisions designed to protect children in cyberspace, namely Sections 15 of the POCSO Act and 67B of the IT Act.
“Despite more than two years having gone by since our judgment, it appears that there has been no progress worth the name. If anything, the recent news reports instead reveal an even more unsettling reality when it comes to the safety and well-being of our children,” the court said on October 15, adding that it was deeply saddened by the news reports placed before it.
Issuing a slew of directions, the bench said that, owing to the lack of any earnest initiative by either the regulatory authorities or social media intermediaries over the years, the court was left with no choice but to take matters into its own hands.
“We cannot emphasise this enough: there can be no space for non-consensual, sexually exploitative and abusive material on the internet, particularly on platforms that are readily accessible to the most impressionable and vulnerable members of our society,” it said, directing that a workable framework for a safer future for children be put in place.
The top court directed the Centre to consider putting in place a framework for imposing exemplary monetary fines on intermediaries for breaches of their duties under the IT Act and the IT Rules. It said the quantum of such penalties must be determined with regard to the gravity, duration and recurrence of the default, as well as the size and turnover of the intermediary.
It said that where any CSEAM or prohibited material was found to have been hosted, uploaded, promoted or circulated, directly or indirectly, through a paywall or subscription from which an intermediary derived revenue, that revenue should be forfeited and disgorged.
The top court said, “We have no hesitation in saying that the right to access and use the internet is a fundamental right of every individual under Article 21 read with Article 19(1)(a) of the Constitution.
“Our children, irrespective of their age, enjoy the same rights, and to deny them these rights altogether would be as absurd as saying children below a certain age do not have a conscience worth protecting or a freedom of speech worth expressing. The safety of our children and their freedom are not at odds with each other. Our children are entitled to both,” it said.
The top court said children did not cease to use the internet merely because the law prohibited them from doing so, adding that they continued to use it, albeit without the knowledge of their parents or the authorities.
Children moved to other platforms and websites that were unregulated and even more unsafe, it said, adding that keeping children away from social media platforms would, by no stretch of the imagination, reduce incidents such as those revealed in the news report placed before the court.
“Without proper safeguards and earnest efforts by all stakeholders in the detection and removal of CSEAM, such material will continue to circulate and embolden those who seek out the same,” it said, adding that any blanket restriction on children’s access to the internet was nothing more than an unproven measure of proven disproportionality.
Among its notable directions, the court directed the Centre to frame appropriate guidelines or standard operating procedures (SOPs) for the use of perceptual hash matching and URL listing by all significant social media intermediaries to detect and remove CSEAM from their platforms.
It further directed the Centre to create a National Hash & URL List Database solely for the detection and removal of CSEAM.
“Where an intermediary detects and removes any CSEAM of ‘unknown origin’, the same must be preceded by proper verification and due diligence on its part in accordance with the IT Rules. The intermediary in such a case shall also be obligated to promptly report the same to the proper authorities under the relevant law and also to the designated body for the Hash & URL List Database, if not the same,” it said.
On September 23, 2024, the top court suggested that Parliament consider amending the POCSO Act to replace the term “child pornography” with “child sexual exploitative and abuse material” to reflect more accurately the nature of such offences. It also held that watching and downloading child pornography were offences under the POCSO Act and the IT law.