Under the Protection of Children from Sexual Offences (POCSO) Act, offences must be reported to the local police or the special juvenile police unit. Such matters can also be reported through the cybercrime portal.
The SC has made it clear in its recent judgement that intermediaries must report child sexual abuse material (CSAM) to local authorities under the POCSO Act, lawyers said.
In practice, however, social media intermediaries that are incorporated in the US report to the National Centre for Missing and Exploited Children (NCMEC), people in the know of the process said.
NCMEC is a private, non-profit organisation established by the US Congress in 1984. US-based intermediaries have not been reporting to local law enforcement in India because as per US law, they are barred from sharing this data with local law enforcement outside the US.
Intermediaries also say it is difficult to report every instance to state-specific law enforcement agencies.
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“They must first figure out a way in their systems to detect CSAM from India. Then they must figure out which local enforcement to report to, which can be very granular like one district in one state,” said a person. “They don’t have that mechanism. That’s why they report to the NCMEC.”Sanya Sud of law firm Saraf & Partners said while the judgement requires social media intermediaries to report consumption and possession of CSAM to the police, it leaves room for clarity on the necessary infrastructure required to be set up by social media intermediaries.
“Now because of the SC ruling, everybody in the Indian market is wondering what to do, which is why a centralised Indian portal like NCMEC will make compliance easier. The government has not alluded to the fact that they will issue guidelines,” said a person tracking the matter.
According to Sud, it is expected that the government would now issue clear guidelines for social media intermediaries.
A government official, meanwhile, told ET that provisions under the Information Technology Act cover people who post CSAM and those who carry it, like intermediaries. “What the SC judgement covers is being dealt with under POCSO,” he said.
“A person who views or downloads CSAM is liable under POCSO and not IT Act. Social media intermediaries in any case should not carry CSAM. If they carry, they lose safe harbour under Section 79(1) of the IT Act,” he said.
Pallavi Sondhi, a senior associate at Ikigai Law, said: “There continues to be a need for a broader consultation with relevant stakeholders to arrive at technically feasible solutions where CSAM can be reported promptly to a centralised authority or portal in India.”
A Google spokesperson told ET that the tech giant has been committed to combating the spread of CSAM on its platforms and the broader online world. According to Google, it has invested significant resources in building detection technology, training specialised teams and leading industry efforts to stop the spread of harmful content.
“In doing this work, we partner with authorities around the world to both report and help prevent this abuse. We will continue to invest in these important efforts, improving our technology and systems and working with government and industry to further protect children online,” the spokesperson said in an emailed response to ET’s queries.
Also Read: Telegram, YouTube, X face strict action over lack of measures to remove obscene content, CSAM
A spokesman for X said the microblogging platform has “zero tolerance for child sexual exploitation, and we are determined to make X inhospitable for actors who seek to exploit minors”.
“In our recently released Global Transparency Report, we announced the suspension of over 2.7 million accounts in the first half of 2024 for violating our child safety policies,” the spokesman added.
Meta (which owns Facebook, Instagram, Threads and WhatsApp), and messaging platform Snap did not respond to ET’s request for a comment.
MoU to share information
The NCMEC signed a memorandum of understanding in 2019 with India’s National Crime Records Bureau (NCRB) to share data related to India.
“This is how India has been getting its CSAM reports. But the SC says since the law asks to report to local law enforcement, social media intermediaries can’t report to the NCMEC,” said one of the people ET spoke with.
Now, platforms are facing practical considerations and challenges with this reporting requirement. “They don’t have mechanisms to detect India CSAM and non-India CSAM,” said another person aware of the legal issues.
The NCRB did not respond to ET’s request for comment.
Jasmine Damkewala, a senior partner at Circle of Counsels and advocate-on-record at the SC, told ET that the top court has made it clear that social media intermediaries must report child abuse and exploitation cases to local authorities under the POCSO Act.
“To claim exemption from liability under Section 79 of the IT Act, intermediaries must conduct due diligence and comply with POCSO provisions which would include not carrying such exploitative material on their platforms,” Damkewala said.