ABSTRACT
The increasing use of digital platforms and artificial intelligence has contributed to the rise of non-consensual intimate images (NCII) and deepfake-based abuse, particularly against women. Existing cyber laws and intermediary frameworks primarily focus on the identification, reporting, and removal of harmful content. However, harmful content frequently continues to circulate through private messaging, cloud-sharing services, mirror uploads, and other alternative dissemination channels even after formal takedown. Consequently, existing legal mechanisms appear to concentrate on content removal rather than addressing its continued circulation. This reveals a significant gap in intermediary liability frameworks concerning post-removal recirculation and continuing digital harm. It is comprehensible that mere removal of content and no follow-up causes more harm than good. The paper adopts a doctrinal approach by examining Indian cyber laws, intermediary liability principles, and constitutional protections relating to privacy, dignity, and equality. The paper evaluates whether intermediaries should bear continuing obligations in cases of foreseeable recirculation and proposes reforms aimed at strengthening accountability and protection for victims of gender-based digital violence.
Keywords: Non-Consensual Intimate Images (NCII); AI Deepfakes; Intermediary Liability; Content Recirculation; Cyber Law; Gender-Based Digital Violence; Digital Privacy.
INTRODUCTION
The rapid expansion of digital platforms has significantly increased the circulation of non-consensual intimate images (NCII) and AI-generated intimate deepfakes, creating new challenges for legal regulation. Unlike conventional online content, intimate images can be repeatedly copied, re-uploaded and redistributed across multiple platforms, allowing harm to persist even after the original content has been removed. Existing research further demonstrates that these harms are disproportionately experienced by women due to entrenched gender stereotypes, social stigma and psychological trauma, while advances in artificial intelligence have made the creation and dissemination of intimate deepfakes increasingly accessible.
In India, intermediary liability is primarily governed by Section 79 of the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which adopt a notice-and-takedown approach by requiring intermediaries to remove unlawful content upon receiving a valid legal notice while preserving safe harbour protection. Although this framework facilitates content removal, it raises important questions regarding its effectiveness in addressing the persistent recirculation of NCII and deepfake content.
Against this backdrop, this paper addresses two interrelated questions: first, whether India’s existing intermediary liability framework adequately addresses the continued circulation of NCII and AI-generated deepfake content after formal takedown; and second, whether intermediaries should bear continuing obligations to prevent foreseeable recirculation of such content, particularly where women are disproportionately affected.
The study adopts a doctrinal and comparative legal research methodology. It analyses the Information Technology Act, 2000, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and relevant judicial interpretation, while drawing comparative insights from the European Union’s Digital Services Act and contemporary technological measures for repeat-upload detection. On this basis, the paper argues that India’s predominantly reactive notice-and-takedown framework should evolve towards a calibrated, victim-centred model that imposes limited continuing obligations on intermediaries to address the foreseeable recirculation of NCII and AI-generated deepfakes without undermining constitutional guarantees of free expression and intermediary safe harbour.