Kerala High Court Issues Guidelines for Handling Digital Evidence with Explicit Content

LI Network

Published on: December 08, 2023 at 12:14 IST

The Kerala High Court has introduced a set of guidelines to safeguard digital evidence containing sexually explicit material, addressing a crucial void in existing regulations.

Justice K Babu, recognizing the vulnerability of women and children to sexual offenses, emphasized the need for protection when law enforcement agencies recover electronic records with explicit content.

Due to the absence of rules guiding authorities on preventing unauthorized access to such content, the single-judge deemed it necessary to issue guidelines until a specific law is enacted on the subject.

The court has called upon both the Central and State governments to formulate essential rules for the secure handling of electronic records containing sexually explicit material.

The decision stemmed from a plea related to the alleged tampering of digital evidence in the 2017 actress assault case, where a memory card containing visuals of the assault was accessed without authorization.

Expressing concern that the content might be disseminated, the victim filed a plea, leading Justice Babu to conclude that the system failed to protect her fundamental rights.

Consequently, the court ordered the District and Sessions Judge, Ernakulam, to conduct a fact-finding inquiry into unauthorized access to the memory card and the copying and transmission of its contents.

In light of the broader issue, the court issued the following comprehensive guidelines:

I. Guidelines for Law Enforcement Agencies:

1. Seizure and Documentation: Exercise utmost caution during seizure, preventing any chance of destruction. Document the entire process for transparency and accountability. Electronically record materials separately, seal them, and label them with a unique ‘Sexually Explicit Materials’ (SEM) tag.
2. Maintenance of Register: Maintain a comprehensive register detailing seized materials, including critical information such as date, time, place of recovery, source, and officers involved.
3. Storage and Transmission: Securely store sealed packets in lockers. Document the time and date of placing the packet in the locker, along with the acknowledgment of the person responsible for custody. Record the meticulous transmission of sealed packets to the relevant court.
4. Accountability: Conduct a thorough investigation in cases of unauthorized access to sealed packets. Hold those responsible accountable to ensure the integrity and confidentiality of the evidence.

II. Guidelines for Courts:

1. Receiving and Register Maintenance: Diligently maintain a register documenting details of received electronic records, including crime information and presenting officer details. The Chief Ministerial Officer should examine sealed packets for proper sealing and condition.
2. Locker and Chest Handling: Securely place received sealed packets in a locker or chest. Maintain detailed records of proceedings, including time, date, and details of the officer responsible.
3. Viewing Permissions: Implement strict controls for granting viewing permissions based on court orders to minimize instances of playing electronic records. Record detailed proceedings regarding the viewing/playing of the electronic record.
4. Destruction Process: Ensure the permanent destruction of electronic records upon case finality, including any appeals. Obtain a detailed destruction report from the examining authority or a similarly notified authority and retain it as a permanent record.

III. Guidelines for Examining Authorities:

1. Register Maintenance: Maintain a comprehensive register of electronic records containing explicit material, recording receipt, return, or destruction.
2. Sealed Packet Handling: Confirm the sealed packet’s condition upon receipt, storing them securely in lockers or chests. Promptly report any suspicion of tampering to the court for further instructions.
3. Expert Precautions: Take sufficient precautions during examination to ensure the authenticity and privacy of electronic records. Record details of any assistance sought during examination in the register.
4. Documentation of Copies: Meticulously document any copies or extractions made during examination in the register. Securely store these copies for future examination purposes.

The court directed the registry to forward a copy of the judgment to the Kerala Chief Secretary, the State Police Chief, and the District Judges for necessary action.