Neutral Citation Number: 2023:DHC:2806
found to be identical, it is taken down. Microsoft has also developed a
software by the name of Photo DNA which is currently being used to
identify CSAM and is also being used by platforms such as Google and
Twitter, and the database of the hashes generated is maintained by an
independent organisation. YouTube has also developed CSAI (Child Sexual
Abuse Imagery) Match which is used by NGOs and other companies to
identify against the database of known abusive content
54.
Flowing from the above, while this Court is of the opinion that
entities of the nature of Google and Microsoft, considering their ubiquity,
cannot abscond or withdraw from their duties to the public at large in the
name of reducing the liability they might incur, this Court is inclined to
agree with the submissions of the learned Senior Counsel appearing for
Google and Microsoft that any direction that necessitates pro-active filtering
on the part of intermediaries may have a negative impact on the right to free
speech. No matter the intention of deployment of such technology, its
application may lead to consequences that are far worse and dictatorial.
Is Right to Free Speech Being Violated ?
55.
One of the concerns that arises when we consider the right to privacy
of an individual under Article 21 is its impact on the right to freedom of
expression and speech under Article 19(1)(a) which is an argument that has
been posed by all parties in the instant matter. This issue requires an
interpretation of the phrase “such content” in Rule 3(2)(b) and whether the
same means a specific instance of identified NCII, as has been contended by
the intermediaries, or all such content of identical nature, as submitted by
the learned Amicus Curiae. This Court is of the opinion that construing the
Signature Not Verified
Digitally Signed
By:SHAZAAD ZAKIR
Signing Date:26.04.2023
17:19:50
W.P.(CRL) 1505/2021
Page 79 of 88
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