A bench of CJI D Y Chandrachud and Justice J B Pardiwala mentioned, “Any act of viewing, distributing or displaying of any little one pornographic materials…over the web with none precise or bodily possession or storage of such materials in any gadget or in any kind or method would additionally quantity to ‘possession’ by way of Sec 15 of Pocso Act.”
The decision settled conflicting excessive courtroom verdicts and accepted senior advocate H S Phoolka’s argument on behalf of NGO ‘Simply Rights for Youngsters Alliance’ to put aside an “egregiously misguided” order of Madras HC, which quashed a Pocso case towards a porn-addict, saying he had not circulated it.
‘No IT Act reduction for social media intermediaries‘
In a major step to verify proliferation of little one porn on the web, SC Monday mentioned social media intermediaries can not declare exemption, or ‘protected harbour’, underneath IT Act with out deleting such offensive movies, pictures and reporting about this to police as per Pocso Act mandate.
Part 79 of IT Act gives ‘protected harbour’ to intermediaries, that’s non-liability for third-party data, knowledge or communication hyperlinks made obtainable or hosted by them, in the event that they observe the prescribed due diligence. Pocso Act locations an obligation on them to not solely report offences thereunder however hand over materials, together with supply from which such materials originated, to the particular juvenile police unit or the native police or cyber crime portal.
A bench of Chief Justice D Y Chandrachud and Justice J B Pardiwala referred to a MoU between Nationwide Crime Information Bureau underneath house ministry and Nationwide Centre for Lacking and Exploited Youngsters (NCMEC), a US-based NGO, which requires all social media intermediaries to report circumstances of kid abuse and exploitation to NCMEC for forwarding it to state police involved for crucial motion.
The bench expressed concern that intermediaries solely complied with the requirement underneath the MoU however didn’t report little one abuse and exploitation circumstances to native authorities as mandated underneath Pocso Act. “An middleman can not declare exemption from legal responsibility underneath Part 79 of IT Act for any third-party data, knowledge or communication hyperlinks made obtainable or hosted by it, until due diligence is performed by it and compliance is made of those provisions of Pocso Act,” the bench mentioned.
“Social media intermediaries, along with reporting the fee or the probably apprehension of fee of any offence underneath Pocso Act to NCMEC can also be obligated to report the identical to authorities specified underneath Part 19 of Pocso Act, ie particular juvenile police unit or native police,” it mentioned.
The bench cautioned courts towards displaying any leniency or leeway in offences underneath Part 21 of Pocso Act, “significantly to colleges/instructional establishments, particular properties, kids’s properties, shelter properties, hostels, remand properties, jails and many others who didn’t discharge their obligation of reporting the fee or apprehension of fee of any offence or occasion of kid abuse or exploitation underneath Pocso Act”.
