On September 23, 2024, a Division Bench of the Supreme Court comprising of the Chief Justice and J. Pardiwala in Just Rights for Children Alliance v S Harish, held that mere viewing of child pornographic content (even if such content was not downloaded, stored and shared) was an offence under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 67 of the Information Technology Act, 2000 (IT Act), provided that such content was not reported. The Court applied the doctrine of constructive possession to rule that u/s 15(1) of POCSO Act, the intention had to be gathered from the act of possessing the material but not reporting it, so mere possession until deletion, destruction, reporting becomes an offence.

 

The judgement also increases the compliance of intermediaries such that they cannot claim exemption from liability for any third-party information hosted on their platform, and thus avail safe harbor under Section 79 of the IT Act, unless provisions under the POCSO Act and Rules are also complied with. The intermediaries would require necessary technical infrastructure to allow its users to report such content. Upon receipt of such complaint, the concerned intermediary would be required to provide information of and report such material that is stored, possessed, propagated, etc. to the Special Juvenile Police Unit (SPJU) or the local police under Section 20 of POCSO, and also hand over such material along with details of its source and suspected device from which it was sent, to the SPJU or local police (under Rule 11 of the POCSO Rules 2020).

Authors & Contributors

Associate:

Debargha Roy