Delhi HC asks Microsoft, Google to seek review of its earlier order on explicit images

Delhi HC asks MS, Google to file a review against NCII order

The Delhi High Court on May 9 asked Google and Microsoft to file a review petition against its order which asked the tech giants to identify and remove intimate images uploaded by a third party without consent.

The division bench’s direction came after the two companies contested a single-judge bench order and said they didn’t have the technology to spot if an image was consensual or not.

A review petition is filed when a judgment has a factual error.

Referred to as non-consensual intimate images (NCII), these are intimate pictures of a person uploaded on the internet by a third party without their consent.

The companies didn’t have the technology to automatically detect an NCII and remove it, Google and Microsoft’s senior counsels Arvind Nigam and Jayant Mehta told the court.

While they do have the technology to stop child porn, they don’t have the one to identify if an image is consensual, the lawyers said.

Search engines such as Google and Microsoft’s Bing can remove URLs from appearing on their platforms by de-indexing them, however, in the absence of a URL, they won’t be able to do much in removing NCII.

They were directed to do something for which the technology was still evolving and the single-judge bench had not considered their affidavit before passing the order.

The bench, led by acting Chief Justice Manmohan, said since the two companies said their submissions were not taken on record, they should file a review plea before a single judge rather than going for an appeal.

While allowing them to file a review petition, the court also permitted the companies to pursue the appeal in case the review was unfavourable.

What is the case about?

In 2023, the court laid down guidelines for the search engines, two years after a woman filed a plea for taking down her explicit images, which she said were taken without her consent.

The court held that search engines such as Google and Bing should find and remove NCIIs. A failure to do so could cost them their social media intermediary protection under the Information Technology Act, the court warned.

Under the IT act, social media intermediaries are not liable for the content hosted on their platforms, as they do not own the information. This is also referred to as the safe harbour provision.

The court ruled that search engines should remove NCII content without requiring victims to approach courts or other authorities.