The Supreme Court in Just Rights For Children Alliance v. S. Harish[i] has ruled that even viewing child pornographic material on the internet would constitute as an offence of storage or possession of child pornography, with an intention to transmit the same, under Section 15 of the Protection of Children from Sexual Offences Act, 2012. It was also held that this intention to transmit could be gauged from any failure to delete and report such pornographic material.
It was further held that merely viewing child pornographic material online constitutes an offence under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”).
Various important observations regarding safe harbour provisions were also given by the Court. The Court observed that social media intermediaries cannot claim an exemption from liability, or ‘safe harbour’ protection, under Section 79 of the Information Technology Act, 2000, (“IT Act”) if it does not delete child pornography, or if it does not report it to the concerned authorities.
We will analyse this case, but also more importantly the safe harbour observations given by the Court, in this article.
Background
On January 29, 2020, the All-Women’s Police Station in Ambattur, Chennai, received a letter from the Additional Deputy Commissioner of Police. The letter indicated that the accused had allegedly downloaded child pornography on his mobile phone. Consequently, an FIR was registered against the accused the same day.
During the investigation, the accused’s mobile phone was seized and sent to the Forensic Science Laboratory, revealing the presence of two video files depicting underage boys in sexual acts with an adult woman. The analysis further showed over a hundred other pornographic videos stored on the device.
The accused challenged the chargesheet before the High Court of Judicature at Madras through a quashing petition.
Observations of the High Court
The High Court quashed the criminal proceedings as follows:
- It held that to constitute an offence under Section 14(1) of POCSO, a child must be used for pornographic purposes, which was not established in this case. The Court noted that although two videos of child sexual activity were downloaded and stored on the accused’s mobile phone, and assuming the accused watched them, this would not constitute an offense under Section 14(1) of the POCSO.
- The Court determined that merely downloading or watching child pornography does not fall within the scope of Section 67B of the IT Act, which requires evidence of publishing, transmitting, or creating such material.
- The High Court referenced Section 292 of the Indian Penal Code, asserting that the mere possession of pornographic material does not constitute an offence unless there is an intent to transmit or publish it.
Thus, it ruled that without evidence of transmission or publication, no offence had been committed under the POCSO or IT Act, leading to the quashing of the criminal proceedings. The appellants, aggrieved by the High Court’s order, subsequently appealed to the Supreme Court.
Judgement:
The Supreme Court at the outset noted that Section 15 of POCSO deals with the offence of storage or possession of child pornographic material with an intention to transmit the same.
The Court held that Section 15 of the POCSO defines three distinct offences related to child pornography, focusing on storage or possession with specific intent.
- The first sub-section penalizes the failure to delete or report child pornographic material found in a person’s possession when there is intent to share it.
- The second sub-section addresses the actual transmission, display, or distribution of child pornography, or facilitating such acts.
- The third subsection concerns storage or possession of child pornography for commercial purposes.
The Court emphasized that the three subsections are independent offences and cannot coexist in the same facts, reflecting different levels of culpable mens rea. If a particular subsection does not apply, it is essential to explore whether the other subsections do.
The Court clarified that viewing or displaying child pornography online can be deemed possession under the doctrine of constructive possession, provided the individual has control over the material. In determining whether material qualifies as child pornography, any visual depiction that appears to involve a child suffices for a prima facie opinion.
What would constitute as a violation?
The Court centered on the interpretation of Section 15 of the POCSO, which addresses the offense of storing or possessing child pornographic material with the intention to transmit. The Court made it clear that intent to transmit can be inferred if a person fails to delete or report the material, even if they did not actively share it.
The bench explained that possession of child pornography can occur in different forms. If someone like ‘A’ routinely watches child pornography online without downloading or saving the content, they are still considered to be in possession. This is because while watching, ‘A’ has a certain level of control over the material, such as adjusting the volume or enlarging the video. Even without downloading, ‘A’ is deemed to have knowledge and control, which is sufficient to constitute possession under the law.[ii]
On the other hand, the Court addressed accidental exposure to such material. If ‘A’ receives a link from ‘B’, unknowingly clicks it, and a child pornographic video appears, ‘A’ would not immediately be liable for possession. However, if ‘A’ continues to view the video instead of closing it promptly, they would then be considered to be in possession, as they now have knowledge and control over the content.[iii]
The Court highlighted that in cases of accidental exposure, simply closing the link to child pornography video does not absolve liability. For the person to avoid being held liable under Section 15, they must also report the incident to the authorities. Failure to report the material, even if it was accessed unintentionally, would constitute an offense, as it reflects the omission of a legal duty to act.
The Court, therefore, established two key types of offenses under Section 15: (1) active possession, where a person knowingly watches, stores, or controls child pornography, and (2) constructive possession, where accidental access becomes an offense if the person fails to report and/or continues to view the material.
Observations on Ignorance of Law and Unawareness of Law
It was observed that an accused cannot claim ignorance of law as a defence because the law expects individuals to be aware of their legal obligations, especially when the prohibited act—storing child sexual exploitation material—carries serious societal consequences.
It was noted by the Court that a defense of unawareness of the law is only valid if it “consequently gives rise to a legitimate and bonafide mistake of fact as to the existence or non-existence of a particular right to claim“.
There exists a distinction between ignorance of the law, which is never excusable, and unawareness of the law, which may, in rare circumstances, be considered a defense.
A four-prong test for using unawareness of the law as a valid defence is as follows: (1) ignorance of the law, (2) such ignorance must give rise to a reasonable and legitimate claim, (3) the claim must be believed in good faith, and (4) the act must be committed based on that claim.
However, it is important to note that even if this four pronged test was fulfilled, the Courts are not bound to accept such a plea, if it is in negation or derogation of any law or the idea of justice.[iv]
Important Observations on the Safe Harbour exception
Prior to concluding the judgement, the Court addressed a few suggestions to effectively address the growing number of dissemination and use of child pornography. Inter alia, the Court made observations on the role of intermediaries in checking the proliferation of child pornography and the safe harbour protection given to intermediaries under Section 79 of the IT Act.
Section 19 and 20 of the POCSO
It was noted that Section 19 of the POCSO requires anyone who suspects or knows about an offence under the Act to report it to the Special Juvenile Police Unit or local police. Section 20 extends this obligation to media, hotel, hospital, club, and studio personnel, mandating them to report any material that sexually exploits children to the authorities. Therefore, a legal obligation has been imposed under the POCSO on any person to report an offence to the relevant authorities specified therein if they have knowledge that an offence under the POCSO has been committed.[v]
Safe Harbour Protection for Intermediaries
It was observed that the role of “intermediaries” in preventing child pornography is crucial.
Note: Under Section 2(w) of the IT Act, “intermediary,” with respect to electronic records, refers to any person who, on behalf of another, receives, stores, or transmits the record or provides services related to it. This would include telecom providers, network service providers, internet service providers, web hosts, search engines, online payment sites, auction sites, marketplaces, and cyber cafes. Which means that intermediaries would include social media sites such as Instagram, YouTube and Facebook.
The Court observed that to qualify for safe harbour protection, the intermediaries: (1) should not have been responsible for starting the distribution of the data; (2) should not select who receives the information transmitted; and (3) should not alter or change the content being transmitted. Upon receiving notice of unlawful activity on their platform by a government authority, they must quickly remove or disable access without compromising evidence. Section 79 protection is lost if the intermediary aids the offense or fails to act after being notified.
Section 79 of the IT Act further requires the in order to avail “safe harbour” protection, exempting intermediaries from liability for third-party information, adherence to due diligence requirements is compulsory.
It was noted that Rule 11 of the POCSO Rules mandates intermediaries to report offences under the POCSO Act and provide necessary material to authorities. Therefore, in the opinion of the Supreme Court, social media intermediaries would be required to report cases of child abuse to the National Centre for Missing & Exploited Children (NCMEC), which then notifies Indian authorities.
However, some 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.
The Supreme Court, therefore, emphasized that intermediaries cannot claim exemption under Section 79 of the IT Act unless they also meet the requirements of the POCSO, particularly in reporting child pornography.[vi]
Section 42A of the POCSO establishes that it takes precedence over other laws. Therefore, compliance with Section 79 of the IT Act does not absolve intermediaries from liability under the POCSO. Social media intermediaries must report suspected offences to the Special Juvenile Police Unit or the local police, in addition to National Centre for Missing & Exploited Children (NCMEC).
The court reiterated that the provisions of the POCSO must be strictly adhered to, particularly regarding reporting obligations for educational institutions and other entities, to uphold the Act’s objectives. The gravity of offences under POCSO should not be diminished by lesser penalties in Section 21, as the seriousness of child exploitation remains paramount, aligned with international standards such as the United Nations Convention on the Rights of the Child.
Conclusion:
It looks like, the compliance list for Intermediaries to avail ‘safe harbour’ has now changed
It looks like in lieu of this decision, it can now be said that there is an additional compliance in order to claim protection of ‘safe harbour’ under Section 79 of the IT Act. The intermediaries should now:
- Limit their role to providing access to a communication system where third-party information is transmitted, stored, or hosted.
- Not initiate the transmission.
- Not select the receiver of the transmission.
- Not select or modify the content of the transmission.
- Observe due diligence in performing their duties under the law.
- Follow any guidelines prescribed by the Central Government.
And now,
- Meet the requirements of POCSO, particularly under Section 19 to report child pornography to Special Juvenile Police Unit or local police, in addition to National Centre for Missing & Exploited Children (NCMEC).
Final Thoughts
The penalties for non-compliance under both the POCSO Act and the IT Act raise important questions. One key issue is whether intermediaries themselves should be penalized, given their role as platforms rather than content creators. The fact that the IT Act was not amended when the POCSO Act was introduced suggests that the legislature may not have originally intended to impose the same reporting requirements on intermediaries. However, the imposition of liability on those who fail to act after encountering illegal content, even accidentally, seems to reflect a broader intent to ensure that child exploitation material is removed swiftly and effectively.
It my opinion, it can be debated whether it is fair to punish someone who, without intent, comes across child pornography but fails to report it. In some cases, individuals may be reluctant to report such content due to the fear of societal judgment or the burden of administrative scrutiny. This in addition also may open various forms of blackmail by sharing email links and taking advantage of lay men who are not aware of the requirement to report the content.
It is also correct to reason on the other hand that, without placing this burden on individuals, it would be much harder to remove such harmful material from circulation. This mandate plays a crucial role in combating the spread of child pornography, reducing trafficking, and protecting children from exploitation. While it may seem burdensome, the requirement to report such material is a necessary step to ensure that those who engage in or allow the proliferation of child exploitation are held accountable.
End Notes:
[i] Criminal Appeal Nos. 2161-2162 Of 2024.
[ii] Para 119, Ibid.
[iii] Para 123, Ibid.
[iv] Para 217, Ibid.
[v] Para 250, Ibid.
[vi] Para 256, Ibid.
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