Indian Kanoon - Search engine for Indian Law

Group Owners Must Mark Sexually Explicit Content. If you create a Group containing sexually explicit Content that is not suitable for minors, you agree to mark the Group as such. If your Group contains Content that is sexually explicit and you do not mark the Group appropriately, Google shall have the right to delete your Group, including all messages Posted to that Group.

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High Court of Australia in Dow Jones and Company INC v. Joseph Gutnick had an occasion to decide posting of sexually explicit photographs and heavily relied on such publication under laws of Australia and held that it not single publication which contained defamatory material complained and when the subordinate distributor did not know that the publication contained the defamatory material complained of; the subordinate distributor did not know that the publication was of a character likely to contain defamatory material and such want of knowledge was not due to negligence on the part of the subordinate distributor, but the publication under the rules would give rise to a separate cause of action in view of Australia and English law. Therefore, the torts of libel and slander are committed when and where comprehension of the defamatory matter occurs. The rules have been universally applied to publications by spoken word, in writing, on television, by radio transmission, over the telephone or over the internet. In Browne v. Dunn the House of Lords held that there was no publication of a defamatory petition to a person (Mrs Cook) who had signed but not read the petition. On an overall consideration, the Court concluded that the Court has got jurisdiction since it amounts to defamatory in nature.

The Supreme Court of the United States in United States v. X-Citement Viedo, INC., ET AL. held as follows:

Because the term knowingly in 2252 (a) (1) and (2) modifies the phrase the use of a minor in subsections (1) (A) and (2) (A), the Act is properly read to include a scienter requirement for age of minority. This Court rejects the most natural grammatical reading, adopted by the Ninth Circuit, under which knowingly modifies only the relevant verbs in subsections (1) and (2), and does not extent to the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. Some applications of that reading would sweep within the statutes admit actors who had no idea that they were even dealing with sexually explicit material, an anomalous result that the Court will not assume congress to have intended.

The order of the day in our country is that most of the websites are being mis-used by the general public for one reason or the other and internet users creating fake accounts both in the Face book and other internet service providers like Google and posting sexually explicit material and sometimes defamatory statements inviting comments from the net users, as such it is difficult for the service provider or intermediary to keep watch on such accounts of net users, which are in millions everyday. Moreover, such fake statements i.e. sexually explicit material and defamatory statements would cause incalculable damage to the reputation of the individuals, which reduces the image of the individual in the society and sometimes it would adversely effect the key position occupied by such person in the society. But the Information Technology Act produced some leverage to such intermediaries subject to attributing actual knowledge as required under Section 79 (3) (b) of Information Technology Act and proof of exercise of due diligence by the intermediary as per Rule 3 of rules framed thereunder. Sometimes, even after issue of notice of cease and desist, intermediary expressing its inability to remove or block those defamatory contents or sexually explicit material only on the ground that it has no control over it and the internet service provider directing the parties to approach the Court and obtain order for removal of such material; indirectly it amounts to encouraging the net users to post such defamatory content or sexually explicit material including child pornography in the websites and it will be continued on the website till a direction was issued by competent Court for removal of such content. It is also a known fact how much delay is being caused in the present adversarial system in Indian Courts and sometimes it will take years together and by the time direction was issued by the Courts, total reputation of such person against whom such defamatory content was posted would be greatly effected in the eye of the society and sometimes personal attacks against such persons and exposing those persons by sexually explicit material by morphing etc., would seriously effects the character and image of such person. Therefore, the Courts should give preference to such suits or petitions filed before the Courts and grant instant relief by way of interim orders to block or removal of such defamatory or sexually explicit content against the internet service provider, otherwise approaching Court for such relief is nothing but a futile exercise even if a direction is given after lapse of few years and it would not serve any purpose and the loss caused to such persons would not be compensated in monetary terms, but the present law under Information Technology Act is not able to provide such immediate reliefs to the person aggrieved by such defamatory or sexually explicit content or hate speeches etc. Therefore, the Legislature has to take necessary steps to provide safeguard to the interest of public at large on account of such defamatory content, sexually explicit material or pornography etc. by creating fake accounts by the net users and to provide stringent punishment to such net users, who created fake accounts and posted such material, by necessary amendment to the Information Technology Act and Rules.