India's Supreme Court has identified shortcomings in how social media platforms handle sexually explicit imagery involving children, ordering all intermediaries to block any avenue — whether behind a paywall, a subscription arrangement, or any comparable access barrier — through which such material could be offered, uploaded, hosted, or otherwise circulated.
Justices JB Pardiwala and K Vinod Chandran, sitting together as a bench, noted that their 2024 directions to social media intermediaries and platforms had gone unheeded despite the court having drawn attention to this non-compliance on multiple occasions. The bench stated that every intermediary bears an obligation to prevent child sexual exploitation and abuse material — along with any content carrying a likelihood of harm to children — from being offered, hosted, uploaded, promoted, or circulated through paywalls or subscription services, whether through direct or indirect means.
The court's ruling drew attention to the way platform recommendation systems were directing users toward indirect pathways to child sexual abuse material, circumventing the protective intent of Section 15 of the POCSO Act and Section 67B of the IT Act. The bench noted that over two years after that judgment was handed down, no steps toward compliance appeared to have been taken.
The bench noted on 15 October that media coverage placed before it pointed to a reality around child safety and welfare that it found more troubling than previously understood, and stated that the reports had left it with a profound sense of sorrow.
The bench issued a series of directives, noting that the prolonged absence of action by both regulatory bodies and social media platforms had placed the court in a position where judicial intervention became necessary. Its order conveyed that content of a non-consensual, sexually exploitative, or abusive nature has no place online — particularly on platforms that younger and more vulnerable users can access with ease — and called for a workable child safety framework to be established without delay.
Fines and other financial consequences for intermediaries that fail to meet their obligations under the IT Act and IT Rules were among the enforcement mechanisms the court directed the government to consider incorporating into a structured regulatory regime. The decision set out that fines would track four variables: the gravity of the violation, how long it continued, whether the platform had offended in the same way before, and the scale of its operations alongside the revenue it generates.
Any intermediary that derived revenue through a paywall or subscription arrangement under which child sexual exploitation and abuse material, or other prohibited content, had been hosted, uploaded, promoted, or circulated — whether by direct or indirect means — would be liable to have those earnings forfeited and paid back.
In a ruling on internet access, the bench declared that every person holds a constitutionally protected entitlement to use the internet, grounded in Article 21 read alongside Article 19(1)(a). The bench held that children at every stage of growth carry rights to basic protections, and that withholding those rights on the grounds of age alone would be no more justifiable than dismissing a child's developing sense of right and wrong, or their ability to think and express themselves, as too immature to deserve acknowledgment.
Advocates on both sides of the debate have argued that safeguarding young people and upholding their freedoms need not be set against each other as rival aims. The bench held that both were owed to children.
In the court's assessment, legal restrictions on minors accessing the internet had not translated into actual abstention, with young people continuing to go online, typically beyond the awareness of both parents and oversight bodies. Submissions before the court noted that minors tended to migrate toward other online spaces that operated without regulatory oversight and carried greater potential for harm, and that restricting their access to social media platforms would not lower the frequency of incidents of the kind documented in the news report placed before the court.
The submissions further observed that without protective mechanisms and commitment from all relevant parties to identifying and removing child sexual exploitation and abuse material, such content would keep circulating and give confidence to those who seek it out. The submissions also characterised any broad-based prohibition on children's use of the internet as a measure lacking evidentiary support and bearing a disproportionate burden relative to any benefit it might achieve.
Among the orders it issued, the bench called on the central government to establish guidelines or standard operating procedures governing how all major social media platforms deploy perceptual hash matching and URL listing to identify and take down child sexual exploitation and abuse material. The order further instructed the central government to establish a National Hash and URL List Database dedicated exclusively to identifying and taking down child sexual exploitation and abuse material.
The order specified that when an intermediary acts on child sexual exploitation and abuse material traced to an unknown source, that action is to be grounded in thorough verification and adherence to the due diligence standards set out under the IT Rules. Under such circumstances, an intermediary would be required to notify both the relevant authorities under applicable law and the designated body responsible for maintaining the Hash and URL List Database, provided those two are not one and the same.
A ruling handed down on 23 September 2024 put forward a recommendation that Parliament look at revising the POCSO Act's terminology, replacing "child pornography" with "child sexual exploitative and abuse material" — a change that would bring the law's language into closer alignment with the nature of those offences. That ruling further established that both accessing and saving child sexual abuse material constitute violations under the POCSO Act as well as the relevant provisions of information technology legislation.
