The Need For A Robust Movement Towards Proactive Content Deletion From Post Facto Removal Of Non- Consensual Intimate Imagery (NCII)
Niraja Ghatak, St. Xavier's University, Kolkata (Xavier Law School)
ABSTRACT
India currently follows a mixture of Post Facto Removal Mechanism and Proactive Content Deletion Mechanism for the removal of Non-Consensual Intimate imagery (NCII) from the internet. For many decades, India has relied on the Post Facto Removal Mechanism and has only recently introduced the Proactive Content Deletion Mechanism. This paper grapples with the pertinent issue of a lack of a unified legal statute which mandates for proactive content deletion mechanisms for Non-Consensual Intimate imagery (NCII). India’s current legal framework provides for a procedure and penalties for NCII offences across multiple statutes like Bharatiya Nyaya Sanhita, 2023, Information Technology Act, 2000 and Digital Personal Data Protection Act, 2023. However these provisions are scattered across multiple statutes which cause institutional delays and are difficult to trace leading to a lack of general awareness among the citizens.
It is already known that Post Facto Removal Mechanism has many drawbacks including fatal delays and it is quite victim dependent requiring the victim to make the discovery of NCII content and then report the same. It also fails the proportionality test established under the Supreme Court Case of Justice K.S. Puttaswamy v. Union of India (2017).This paper traces the gradual movement from Post Facto Removal Mechanism to Proactive Content Deletion Mechanism for Removal of NCII content and discusses three central question. Firstly, does India’s current legal framework adequately addresses the speed required for NCII content removal? Secondly, whether proactive content deletion infringe on freedom of expression by imposing a pre-publication censorship mechanism. Thirdly, should India mandate a type of UK model which is based on Stop.NCII.org facilitating a hash blocking function, for all the Intermediaries? Additionally this paper also discusses the lack of accessibility to these protective mechanisms for the women in Rural India and New Zealand’s HDCA 2015 provisions in an international context.
The main aim of this paper is to highlight the statutory gaps related to the enforcement of Post Facto Removal and Proactive Content Deletion mechanisms. The research methodology used in this paper is mainly doctrinal and comparative.
