All NotesCriminal LawPOCSO Act, 2012

POCSO Act, 2012

Reporting CSEAM to Authorities, and the Liability of Online Intermediaries

Most child sexual exploitative and abuse material now lives on platforms, so the law places duties on two groups: anyone who comes across it, and the intermediaries that host or carry it. For individuals, Rule 11 of the POCSO Rules, 2020 provides the reporting route, and Section 15(1) punishes those who retain the material instead. For platforms, Section 20 of POCSO, Section 79 of the IT Act and the Intermediary Rules, 2021 impose duties of reporting, removal, preservation and detection, and the safe harbour from liability is available only to those who perform them. This note sets out both.

The sources and channels of reporting, and the intermediary's ledger of duties and consequences

1. Reporting CSEAM: Who, Where and How

Who must report

Source

To whom

Any person who has received CSEAM, or knows it is being stored, possessed, distributed, circulated, transmitted, facilitated, propagated or displayed, or likely to be

Rule 11, POCSO Rules, 2020

The SJPU, the local police, or the cyber-crime portal, cybercrime.gov.in

Any personnel of the media, hotel, lodge, hospital, club, studio or photographic facility who comes across material sexually exploitative of a child

Section 20, POCSO

The SJPU or the local police

Any person with knowledge that an offence under the Act has been committed

Section 19(1), POCSO

The SJPU or the local police

An intermediary

Rule 11

The SJPU or the local police, handing over the material and its source

§ How to report without committing an offence

Give the location, not the material. The report should identify where the material is, such as the platform, the account, the link or the device. It should not forward or copy the material.

Report, or delete. Section 15(1) punishes a person who stores or possesses CSEAM and fails to delete, destroy or report it, with intent to share. Reporting through Rule 11 is the lawful course.

Good faith is protected. Section 19(7) protects a person who gives information in good faith from civil and criminal liability.

Failure to report under Sections 19 or 20 is punishable under Section 21(1) with imprisonment up to six months, or fine, or both.

2. The Intermediary's Legal Position

§ Section 79 of the IT Act: safe harbour

The immunity. An intermediary is not liable for third-party information it hosts or transmits, provided it does not initiate the transmission, select the receiver, or modify the information, and observes due diligence.

The condition. Under Section 79(3), the immunity is lost if the intermediary conspires in or aids the unlawful act, or fails to expeditiously remove or disable access to unlawful material on receiving actual knowledge.

Actual knowledge. In Shreya Singhal v. Union of India, (2015) 5 SCC 1, the Supreme Court read actual knowledge as knowledge through a court order or a notification by the appropriate government or its agency.

§ The duties under the IT Rules, 2021

• Terms of use. Intermediaries must inform users not to host, display or share content that is obscene, pornographic, paedophilic, or harmful to children, among other categories.

• Removal. They must remove or disable access to unlawful content within the time the Rules prescribe after actual knowledge, and must act swiftly on complaints concerning content that exposes a person's private areas, shows a sexual act, or is a morphed image.

• Preservation and assistance. They must preserve removed content and associated records for the period prescribed for investigation, and furnish information to authorised government agencies on lawful request.

• Significant social media intermediaries must endeavour to deploy technology-based measures, including automated tools, to proactively identify child sexual abuse material, and, for messaging services, enable identification of the first originator of such material on a lawful order.

3. POCSO's Own Duties on Platforms

i. Section 20 requires media personnel who come across material sexually exploitative of a child to report it, and applies to digital media as to print.

ii. Rule 11 requires an intermediary that reports to hand over the material and its source to the SJPU or local police.

iii. Section 21(2) makes the person in charge of a company or institution liable, with up to one year and fine, for failing to report an offence by a subordinate.

iv. Section 15(2) and (3) are not excused because the storage is part of a business; storage for distribution or commercial purpose is an offence whoever commits it.

4. Consequences of Failure

Failure

Consequence

Failure to observe due diligence, or to remove on actual knowledge

Loss of the Section 79 safe harbour; the intermediary may be answerable for the content

Publishing, transmitting or facilitating CSEAM

Liability under Section 67B of the IT Act

Failure of personnel to report under Section 20

Section 21(1) of POCSO

Failure of the person in charge to report a subordinate's offence

Section 21(2) of POCSO

Storage of CSEAM for distribution or gain

Section 15(2) or (3) of POCSO

5. The Supreme Court's Approach

§ From Prajwala to Harish

In Re: Prajwala (2018). In proceedings concerning videos of sexual violence circulating online, the Supreme Court pressed the Union and major platforms to develop mechanisms for identifying and removing such content, including child sexual abuse material.

Just Rights for Children Alliance v. S. Harish, 2024 INSC 716. The Court drew attention to the reporting duties of intermediaries under Section 20 of POCSO and the IT framework, and the need for their effective enforcement, alongside its holdings on Section 15.

The direction of travel is towards proactive detection and prompt reporting, with safe harbour as a reward for diligence, not a shield for indifference.

6. Frequently Asked Questions

How should a person report child sexual abuse material?

To the SJPU, the local police or the cyber-crime portal under Rule 11 of the POCSO Rules, 2020, giving the location of the material without forwarding it.

Does reporting protect the person who found the material?

Yes. Reporting through Rule 11 is the lawful course that takes a person outside Section 15(1), and Section 19(7) protects good faith reporting.

When does a platform lose safe harbour?

Under Section 79(3) of the IT Act, where it fails to observe due diligence or to remove unlawful material expeditiously on actual knowledge, or where it aids the unlawful act.

What must large platforms do about CSAM?

Significant social media intermediaries must endeavour to deploy automated tools to proactively identify child sexual abuse material, and assist in identifying its first originator on a lawful order.