Social Media Platforms Must Immediately Report Child Porn To Police: Supreme Court
The Supreme Court said that mere deletion of child pornographic content on social media not enough, and the social media intermediaries must immediately report the offence to the police.
The Supreme Court, while holding that watching and storing child pornographic content is an offence under the POCSO (Protection of Children from Sexual Offences) and the Information Technology (IT) acts, said that all social media intermediaries must immediately report the offence to the police. The court said that mere deletion of such content by social media intermediaries is not enough, and they cannot claim exemption from the liability under Section 79 of the IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted by it and compliance is made of these provisions of the POCSO.
"We are also of the view that such due diligence includes not only removal of child pornographic content but also making an immediate report of such content to the concerned police units in the manner specified under the POCSO Act and the Rules thereunder," the top court said.
Rule 11 of the Protection of Children from Sexual Offences Rules, 2020 (for short, the “POCSO Rules”), places an obligation on the intermediaries to not only report offences under POCSO but also to hand over the necessary material including the source from which such material may have originated to the Special Juvenile Police Unit or the local police, or the cyber-crime portal.
As per a MOU between the National Crime Records Bureau (NCRB) under the Ministry of Home Affairs (MHA) and the National Centre for Missing & Exploited Children (NCMEC), a US based NGO, all social media intermediaries are required to report cases of child abuse and exploitation to the NCMEC, which in turn reports these cases to the NCRB and the NCRB forwards this to the concerned State authorities in India through the national cybercrime reporting portal.
The court was informed that that social media intermediaries do not report such cases of child abuse and exploitation to the local authorities specified under POCSO and rather only comply with the requirements stipulated in the MOU.
"In view of the salutary object and the mandatory character of the provisions of Section 19 and 20 of the POCSO read with Rule 11 of the POCSO Rules, we are of the considered view, that an intermediary cannot claim exemption from the liability under Section 79 of the IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted by it and compliance is made of these provisions of the POCSO. We are also of the view that such due diligence includes not only removal of child pornographic content but also making an immediate report of such content to the concerned police units in the manner specified under the POCSO Act and the Rules thereunder," the apex court said in the landmark verdict which held that watching child porn is an offence under POCSO and IT Act.
The top court said that the social media intermediaries in addition to reporting the commission or the likely apprehension of commission of any offence under POCSO to the National Centre for Missing & Exploited Children (NCMEC) is also obligated to report the same to authorities specified under Section 19 of POCSO i.e., the Special Juvenile Police Unit (SJPU) or the local police.
The top court further cautioned courts to refrain from showing any form of leniency or leeway in offences under Section 21 of the POCSO, particularly to schools/educational institutions, special homes, children’s homes, shelter homes, hostels, remand homes, jails, etc. who failed to discharge their obligation of reporting the commission or the apprehension of commission of any offence or instance of child abuse or exploitation under the POCSO.
The top court today held that watching, and even mere storage of child pornographic material is also an offence under the POCSO.
The landmark verdict overturned the Madras High Court judgment that had quashed a criminal case against a 28-year-old man, charged for downloading and watching on his mobile phone some pornographic content involving children. The top court today restored the criminal proceedings against the accused.
The court further said that the term "Child Pornography" should not be used and instead child sexual exploitative and abuse material should be used in courts to deal with such cases and urged the Parliament to make amendments in POCSO to that effect.
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