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, having the propensity 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 that the court has repeatedly flagged non-compliance with its directions issued in 2024 by the social media intermediaries and platforms, but no action has 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 that 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 for the protection of children within cyberspace, namely Sections 15 and 67B of the POCSO Act and the IT Act, respectively.
"Despite more than two years having gone by since our judgement, 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 wellbeing of our children," it said on October 15, while adding that the court was deeply saddened to note the news reports placed before it.
Issuing a slew of directions, the bench said due to the lack of any earnest initiative shown on the part of either the regulatory authorities or the social media intermediaries for all these years, the court was left with no choice but to take matters in its own hands.
"We cannot emphasize this enough that 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 of our society," it said and directed that a workable framework for a safer future for the 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 the breach of any duties under the IT Act and the IT Rules and said the quantum of such penalties must be determined having regard to the gravity, duration and recurrence of the default as well as the size and turnover of the intermediary.
It said where any CSEAM or prohibited material is found to have been hosted, uploaded, promoted or circulated, directly or indirectly, through any paywall or subscription from which the intermediary derives any revenue, the revenue so derived from such content 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 the same 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 that children do not cease to use the internet merely because the law prohibits them from doing so, and they continue to use the same, albeit without the knowledge of their parents or the authorities.
They move to other platforms and websites that are unregulated and even more unsafe, it said, adding that keeping children away from social media platforms would, by no stretch of imagination, reduce incidents such as those revealed in the news report placed before us.
"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 the access of the internet by children is nothing more than unproven measures of proven disproportionality.
Among the notable directions, it directed the Centre to frame appropriate guidelines or SOPs for the use of perceptual hash matching and URL listing by all significant social media intermediaries for the detection and removal of CSEAM from their platforms.
It further directed that the Centre shall create a National Hash & URL List Database for the sole purpose of 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 should consider bringing an amendment to the POCSO Act for substituting the term "child pornography" with "child sexual exploitative and abuse material" with a view to reflect more accurately the reality of such offences and held that watching and downloading child pornography are offences under the POCSO Act and the IT law.