The story so far: A Supreme Court judgment on October 15 addressed the everyday anxiety of parents, who are torn between allowing their children access to the Internet and the need to keep them safe from vile, abusive online content.
The judgment by a Bench of Justices J.B. Pardiwala and K. Vinod Chandran reasons that the solution is not to ban children from using the Internet, but to take measures to keep them safe from exploitation by predators lurking online. The court declared that a child, like any other individual, has a fundamental right to access and use the Internet.
The court said the Internet is a marketplace of ideas, creative expression and information. Its value is priceless, not only for information. For children in remote areas, the Internet is often the only source of learning and information. Likewise, for children with special needs, the Internet is often the only place where they are able to find company in others like them
The State, lawmakers and parents cannot blame children for the presence of Child Sexual Exploitative and Abuse Material (CSEAM) on the Internet. The wrongdoer is the person who creates, circulates, sells or seeks out such material, and the intermediary which fails to detect and remove the content. To keep the child away from the Internet on account of such failures would be to mistake the victim for the problem.
Any measure for the safety of children must be directed at the harmful material and those responsible for the same, and not at the children themselves.
The court held that “our children are entitled to both safety and the freedom to access the Internet”. To deny them the freedom to go online would be as absurd as saying children below a certain age did not have a conscience worth protecting or a freedom of speech worth expressing.
What led to the judgment
The court found that its directions for online child safety in a September 23, 2024 judgment in a petition filed by Justice Rights for Children Alliance were largely ignored for the past two years, leading to serious lapses.
The court said there had been an “alarming increase” in child sexual exploitation and CSEAM circulated on social media platforms. It flagged how indirect links to such harmful material were promoted and shared through social media algorithms to bypass the rigours of the special penal provisions designed for the protection of children within cyberspace.
“Links to view child pornography were circulated and sold for anywhere between Rs. 40 to Rs. 5,000”. The court described the state of affairs as a “disquieting failure” on part of online platforms. Due diligence would have meant not only removal of child pornographic content but also making an immediate report of the illegal content to the police under the Protection of Children from Sexual Offences Act.
A lack of synergy
The court said the current mechanism for the detection and removal of CSEAM relied heavily on either users or authorities reporting instances. Though social media intermediaries have deployed their own safeguards for a seamless continued detection and removal of abusive content, there was no synergy in the counter-measures and action.
Justice Pardiwala, who authored the judgment, said the harm caused by CSEAM was not confined to the moment of its creation, but spread through “every instance of the content’s circulation, every view, and every download which revictimised the child”. Continued circulation of CSEAM fuelled consumption and demand. It normalised abuse of children. Post-facto prosecution and punishment could hardly undo the harm already done.
“Providers” of CSEAM employ deceptive measures to hoodwink casual checks. Advertisements and promotions may contain no abusive depiction, instead
directing users through links or redirections to websites and platforms where CSEAM were hosted or offered. Such advertisements were liable for punishment under the Information Technology Act and Rules.
The court underscored the need for intermediaries to not just skim the surface of these advertisements, but look at the “content as a whole, including the text, captions, keywords, links and the function of the tool or application being promoted” to determine whether they facilitated the exploitation of children”.
The court further noted that an intermediary who failed to comply with the rigours of the Information Technology Act would lose the safe-harbour protection under Section 79, making it liable to criminal prosecution.
Some foreign jurisdictions
In the United States, Section 2258A of Title 18 of the United States Code casts an obligation upon providers of electronic communication and remote computing services to report any apparent instance of CSEAM which comes to their actual knowledge to the CyberTipline of the National Centre for Missing & Exploited Children. The penalty prescribed for intermediaries or ‘providers’ range $600,000 or $850,000, depending upon its size, with subsequent failures extending it to $1 million.
The United Kingdom’s Online Safety Act, 2023 places a range of duties upon providers of user-to-user online services. These include duties to assess the risk of illegal content appearing on their services, to take proportionate measures to mitigate such risk, and to swiftly remove abusive content once they are alerted to it. CSEAM forms one of the most serious categories of illegal content under the Act.
The European Union, Regulation (EU) 2022/2065, more popularly known as the Digital Services Act, governs the obligations of providers of intermediary services, particularly in respect of illegal content such as CSEAM. The EU does not directly draw a distinction based on the size of the provider. The consequence of failure is a substantial fine of up to 6% of the annual worldwide turnover of the provider in the preceding financial year. Continuing defaults would mean a periodic penalty of up to 5% of the average daily worldwide turnover of the provider, imposed for every day in default.
Comprehensive directives and safeguards
The Supreme Court judgment directed steps to detect, remove, and report online CSEAM content. The key measures include the creation of a National Hash and URL List Database. Online entries should go through a preliminary software screening followed by independent verification from at least three trained human analysts. The judgment ordered that ‘known origin’ CSEAM (matching the national database) must be disabled and removed immediately by intermediaries without further verification. ‘Unknown origin’ CSEAM, removed on the basis of complaints or internal due diligence, must be reported to proper authorities within two hours, the court directed.
Intermediaries must provide a clearly labeled, easily accessible CSEAM reporting category within two steps on their platforms. Complaints must be reviewed by trained officers, and reports must be acknowledged within 24 hours with tracking reference numbers. Subscription and paywalled content must undergo strict scrutiny to prevent CSEAM circulation.
Violations may lead to severe monetary fines. The revenue derived from prohibited content must be forfeited and disgorged.
Larger implications of the judgment
The court’s directives have increased compliance pressure on intermediaries. Platforms can no longer merely wait for user complaints to take down illegal content. It has also standardised how platforms detect abuse material. The court has linked revenue earned by intermediaries to the responsibility to keep cyberspace clean from abuse.