Today, On 9th May, The Delhi High Court directed Microsoft and Google to file a review petition challenging an order to remove non-consensual intimate images from their platforms. This decision comes in response to concerns about protecting individuals’ privacy and preventing the circulation of such content without consent. The court’s directive highlights the ongoing legal debates surrounding online content moderation and user protection. Both companies expected to present their arguments in the review petition.
New Delhi: A Division Bench of the Delhi High Court, On Thursday, instructed tech giants Google and Microsoft to submit a review petition requesting the overturning of a prior single-judge ruling. The ruling had mandated search engines to actively eliminate Non-consensual intimate images (NCII) from the internet, without necessitating specific URLs. Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora issued this directive during the appeals proceedings initiated by the two tech companies against the aforementioned judgment rendered on April 26, 2023.
The Court expressed the opinion that it would be suitable for the appellants, Microsoft and Google, to file a review petition to present the facts before the single-judge.
The Court stated,
“In case the appellants are dissatisfied with the single-judge’s order in the review petition, they are free to pursue the reinstatement of the current petitions.”
The recent clarification emphasized that the review petitions filed by Microsoft, the owner of Bing search engine, and Google cannot be dismissed by a single judge solely based on delay grounds.
Justice Subramonium Prasad delivered a comprehensive judgment, cautioning social media intermediaries that they would forfeit their liability protection if they even slightly deviate from the specified time-frame outlined in the Information Technology Rules (IT Rules) for the removal of non-consensual intimate content.
Justice Prasad asserted that search engines possess the necessary technology to expeditiously remove non-consensual intimate content without requiring victims to repeatedly approach the courts or other authorities for removal of the same content. The single judge explicitly stated that search engines cannot claim helplessness when it comes to removing or disabling access to links containing such illicit content.
During proceedings today, representatives from Microsoft and Google contended that complying with the single-judge’s directives is technically unfeasible for them. They emphasized that existing Artificial Intelligence (AI) tools are not flawless in this regard, and ongoing technological advancements are still required.
Senior Advocate Arvind Nigam, representing Google, highlighted that what might seem identical to a human observer may not align precisely with automated algorithms.
Nigam stated,
“The outcome varies based on resolution, configuration, watermark, and other factors. I had submitted an affidavit to the single-judge outlining these details, but the argument was dismissed.”
Representing Microsoft, Senior Advocate Jayant Mehta mentioned that while technology is advancing, it has not yet reached a stage where search engines can remove Non-Consensual Intimate Images (NCII) without needing specific URLs.
He remarked,
“We are witnessing technological advancements, but we haven’t achieved that capability yet. Demanding that search engines perform such tasks immediately, or lose their immunity, is unreasonable. It’s an ongoing effort; I am striving to attain it. However, expecting it to be done instantly is unjust,”
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The Division Bench further commented that the search engines could present their case before the single-judge, asserting their lack of technological capability. The Division Bench stated,
“No one can compel you to undertake an impossible task. Kindly submit a review petition and request the honourable single-judge to reconsider this aspect of the judgment,”
Furthermore, the case raises questions about the technical and ethical capacities of major tech platforms to police content effectively while respecting users’ rights. It calls into question the responsibility of tech companies in moderating content and their role in protecting individuals against digital harms.
In sum, the Delhi High Court‘s directive for Microsoft and Google to file a review petition is a pivotal moment in the ongoing debate over digital rights and responsibilities, highlighting the complex interplay between technology, law, and personal privacy in the digital era.