Social media platforms must immediately report child pornography to police: Supreme Court

The Supreme Court, which held that viewing and storing child pornographic content is an offence under the Protection of Children from Sexual Offences (POCSO) and Information Technology (IT) Acts, said that all social media intermediaries must immediately report the offence to the police. The court said that mere removal of such content by social media intermediaries is not enough and they cannot claim exemption from liability under Section 79 of the IT Act for any third party information, data or communication links made available or hosted by them unless they exercise due diligence and comply with these provisions of the POCSO.

“We are also of the view that such due diligence includes not only removing child pornographic content but also promptly reporting such content to the concerned police forces in the manner specified in the POCSO Act and the rules made thereunder,” the high court said.

Rule 11 of the Protection of Children from Sexual Offences Rules, 2020 (in short, the “POCSO Rules”), imposes 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 been obtained, to the Special Juvenile Police Unit or the local police, or the cybercrime portal.

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Under an MoU between the National Crime Records Bureau (NCRB), which is under the Ministry of Home Affairs, 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. The NCMEC then reports these cases to the NCRB, which then forwards them to the concerned state authorities in India through the national cybercrime reporting portal.

The court was informed that social media intermediaries do not report such cases of child abuse and exploitation to the local authorities specified in the POCSO and only abide by the requirements laid down in the MOU.

“Considering the salutary purpose and mandatory nature of the provisions of Sections 19 and 20 of the POCSO read with Rule 11 of the POCSO Rules, we are of the opinion that an intermediary cannot claim exemption from liability under Section 79 of the IT Act in respect of information, data or communication links of third parties made available or hosted by it unless it exercises due care and complies with these provisions of the POCSO. We also believe that such due diligence includes not only removing child pornography content, but also promptly reporting such content to the relevant police units. in the manner specified in the POCSO Act and the rules thereunder,” the Supreme Court said in the landmark judgment, holding that watching child pornography is an offence under the POCSO and the IT Act.

The Supreme Court held that besides reporting the commission or likely apprehension of commission of an offence under POCSO to the National Centre for Missing & Exploited Children (NCMEC), the social media intermediaries are also required to report the same to the authorities designated under Section 19 of POCSO, i.e. the Special Juvenile Police Unit (SJPU) or the local police.

The Supreme Court further warned the courts against extending any leniency or leeway in the event of violations of Section 21 of POCSO, particularly to schools/educational institutions, special homes, children’s homes, shelter homes, hostels, remand centres, prisons, etc. which have failed to discharge their obligation to report the commission or apprehension of commission of any offence or case of child abuse or exploitation under POCSO.

The Supreme Court today ruled that viewing and even merely storing child pornographic material is also an offence under the POCSO.

The landmark verdict overturned the Madras High Court’s judgment that had quashed a criminal case against a 28-year-old man, who was accused of downloading and watching pornographic content featuring children on his mobile phone. The top court today reinstated the criminal case against the accused.

The court further held that the term ‘child pornography’ should not be used and instead child abuse material should be used by the courts in such cases. The court urged Parliament to bring in amendments to the POCSO to that effect.