Neutral Citation Number: 2023:DHC:2806
phrase “such content” as “all content” is necessary to reduce the burden on
the user/victim, however, “all content”, access to which is to be disabled,
must pertain to NCII abuse that has already been reported. Further, it is
pertinent to note that unlike copyright infringement [as was the issue in
MySpace Inc. v. Supercassettes Industries Ltd. (supra)], defamation, etc.,
NCII content conveys a higher degree of harm in society.
56.
In a Judgement of this Court in X v. Union of India, W.P.(Crl.) 1082
of 2020, a direction had been given to all intermediaries by the learned
Single-Judge Bench to engage in proactive monitoring and removal of NCII
content that the Court had deemed to be illegal. There is currently an appeal
pending against the said Judgement, however, no stay has been granted, and
thus, the Order is still in operation. The working paper published by CCG
records the risks that overbroad directions may pose, however, the viability
of the directions in the said Judgement is of no consequence in the instant
matter as the directions and suggestions being issued herein are restricted to
search engines only. The relevant portion of the working paper is as under:
―Proactive monitoring for NCII content: In 2021, a
Single Judge of the Delhi High Court attempted to
address the problem of re-uploading of known NCII by
stipulating that all intermediaries must engage in the
proactive monitoring and removal of NCII that the
Court had previously determined to be illegal.16 Such
mandatory monitoring obligations create significant
free speech and privacy risks as intermediaries must
monitor all users to identify those uploading unlawful
content.17 Such automated filtering has also been
demonstrated to disproportionately restrict lawful
expression by individuals from racial and linguistic
minorities.18 Imposing a monitoring requirement on
all intermediaries could lead to more content removal,
but not necessarily better content removal, resulting in
the removal of lawful speech. Therefore, curbing the
Signature Not Verified
Digitally Signed
By:SHAZAAD ZAKIR
Signing Date:26.04.2023
17:19:50
W.P.(CRL) 1505/2021
Page 80 of 88
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