Delhi HC asks Microsoft, Google to seek review of order on removing non-consensual intimate images

A division bench of acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora noted the submissions of the appellants that the judgment directives exceed the bounds of existing law and technology and search engines (Bing and Google) operated by the appellants lack the capability to detect and remove NCII without specific URLs.

The appellants emphasised that the “technology is in the process of being developed however it is not perfect as of today”.

Disposing of the matter, the bench said, “This court is of the view that the appellants should file a review petition and bring these facts to the notice of the learned single judge. In the event the appellants are aggrieved by the order passed by learned single judge in the review petitions, the appellants will be at liberty to seek revival of the present petitions.” It further clarified that in case Google and Microsoft file a review petition before the single-judge bench, it will not be dismissed “on grounds of delay”.

During the hearing, senior advocate Arvind Nigam appearing for Google LLC submitted that he was not appearing for YouTube which had accepted the single judge’s judgment but was appearing for the search engine side of the tech giant. He said that search engines are a “different cup of tea” as they do not host content.

“If it is removed by the hosting platform it will not show up in the search…I’m the bridge to the place where the content is; the content is not with me…The more permanent method according to the statute is a direction to the hosting platforms to remove such content. The learned single judge has unfortunately saddled search engines with the requirement of significant social media intermediaries,” Nigam said.

Nigam also said that while in cases of “Child Sexual Abuse Material (CSAM), the technology exists because the computer recognises the child”, which, for the most part, can be determined upon examining the imagery, for NCII, the technology has not reached at the level where the AI can figure out “consent”. He, however, said that his client is endeavouring as required under the law.

Nigam also said that the search engine had filed an affidavit before the single-judge bench submitting that his client on a “voluntarily basis is using its systems to detect and remove copies of content from image search”. While Google is making its best efforts, the images can be “unfortunately easily modified and therefore evade detection via current hash matching technology”, Nigam said, referring to the affidavit.

Meanwhile, appearing for Microsoft, senior advocate Jayant Mehta said, “The law says endeavour. But to say I must do it today whether technology exists or not, that’s where the problem lies”.

After hearing the companies, the bench orally said, “Why don’t you file a review before the learned single judge that there is no such technology available? Move it. No one will ask you to perform an impossible task…Please go back. Let the issue be settled.”

The April 2023 order was passed in a plea of a woman seeking the blocking of certain sites carrying her intimate images and registration of an FIR against a man who she alleged had acquainted himself with her through social media.

With respect to the search engines, the April 2023 judgment also states, “They cannot be allowed to avoid their statutory obligations by stating that they do not have the necessary technology, which is patently false as has been exhibited during the course of hearing.”