In a defamatory suit brought by Swami Ramdev and Patanjali Ayurved Ltd. ("the Plaintiffs") against Facebook Inc., Google Inc., YouTube LLC, and Twitter International Company ("the Defendant Platforms"), the Delhi High Court ordered the Defendant Platforms to block all the offensive content including any URL/web link/video uploaded from inside India, from the global domain. The order which came on October 23, 2019 only created confusion regarding the limit of the national courts' jurisdiction.
Plaintiffs filed the suit on January 21, 2019 alleging that the Defendant Platforms are responsible for dissemination of defamatory content in relation to Swami Ramdev. This offensive content included videos and remarks based on a book by Priyanka Pathak Narain called 'Godman to Tycoon— the Untold Story of Baba Ramdev'. The Delhi High Court, in a different suit between the Plaintiffs and the publisher of the book, banned the publication, sale and distribution of this book unless the objectionable portions are deleted; the appeal for the matter is pending before the Supreme Court.
The Delhi High Court after hearing the matter on January 24, 2019, passed an interim order for injunction granting removal of the offending URL and web links from the Indian domain and stated that the question regarding global injunction will be dealt with in the next hearing.
Thereafter, on October 23, 2019 the Delhi High Court weighed the arguments advanced by both the parties and ordered the Defendant Platforms to take down the offensive content, globally.
- The Plaintiffs sets out the manner in which the content is defamatory by pointing out the parts of the video which are summarising the book in relevant paragraphs of the plaint.
- It is contended that a balance between the right to reputation under Article 21 of the Constitution of India and freedom of speech and expression guaranteed under Article 19 must be maintained by the court.
- It is contended that the arguments against global injunctions are all theoretical and a citizens' reputation must be protected. The Plaintiffs should not be forced to approach courts in every country to safeguard their dignity.
- Relying upon the definitions of "computer resource", "computer system", "computer network" and "data" and other provisions in the Information Technology Act, 2000 ("IT Act, 2000"), it was contended that the IT Act, 2000 does not provide that the blocking has to be restricted to the territory of India.
- Relying upon the Shreya Singhal v Union of India1, the counsel for the Plaintiffs contested that under Section 79 of the IT Act, 2000, the Defendant Platforms are bound to disable the defamatory content when they have the 'actual knowledge' of the same, and an order of the court constitutes 'actual knowledge'..
- As per the Information technology (Intermediaries guidelines) Rules, 2011, the intermediaries are not to decide what is defamatory, rather they are to remain passive and follow the orders of the court without arguing on behalf of the uploader.
- That the Defendant Platforms being passive intermediaries (as claimed by the Defendant Platforms), are bound to exercise due diligence required by the law.
- Global Blocking of the content would not cause any serious inconvenience to the Defendant Platforms while it might seriously impact the the Plaintiff's reputation.
- For the order to have full effect it is necessary that the content is taken down globally.
- An action for defamation is right in personam, and therefore it should have been filed by the Plaintiff himself. However, in the present case, the plaint has been filed by a Power of Attorney.
- Definition of defamation and standard of free speech differs in every country and global takedown might restrict the right to information of individuals living in different country where the said content may not be defamatory in nature. This might expose the Defendant Platforms to liability for interfering with such rights.
- Global ban would frustrate the principle of comity of courts, state sovereignty and result in conflict of laws. The banned book itself is available internationally which indicates that the injunction must be restricted to India only.
- That the uploader of the video who is a necessary party was not impleaded and the suit is liable to be dismissed.
- Global ban is an extreme measure and therefore, it must be the last resort. Geo-blocking is a proportionate measure in the matter.
- Though the Section 75 of the IT Act, 2000 provides that the IT Act, 2000 shall apply to offences or contraventions committed outside India in relation to certain cases, defamation is not included in such offences or contraventions.
- The general rule of defamation is that every publisher of the defamatory material is liable. However, Section 79 of the IT Act, 2000 exempts intermediaries from liability under this rule, and thus the Defendant Platforms are protected under this Section.
Decision Of The Delhi High Court:
The Court after listening to the contentions of the parties directed the Defendant Platforms to remove or block or take down all such defamatory content and videos/web links/URLs which were uploaded from within India from the global domain. With respect to the videos or web links or URLs uploaded from computer resources located outside India, the Court ruled that the Defendant Platforms must disable access to them from being viewed in the Indian domain by the Indian users. It further held that if in future the Plaintiffs discovers any other such material including videos, web links, URLs is derogatory or defamatory in nature then it must notify the Defendant Platforms who will have to lock access to or take down such material depending upon whether it was uploaded from India. If the Defendant Platforms in such a case think that the material notified by Plaintiff is not of defamatory or derogatory nature it may not take it down and inform the Plaintiff, who shall then seek proper remedy under law.
The issues that were decided by the Court in this matter are as follows:
Non-Joinder of Parties
One of the contentions of the counsel for the Defendant Platforms was that the suit is liable to be dismissed for the reason of non-joinder of necessary parties, the publisher of the book upon which the offensive video is based and the uploader of the video. The Court held that the publisher of the book is a party in a matter which has already been decided by the Court, and thus, there is no need to implead him in the same suit. With respect to the uploaders of the defamatory content, the Court agreed with the Plaintiffs that the BSI (Basic Subscriber Information) provided only the IP addresses, e-mail addresses and mobile numbers which was insufficient to identify the uploaders. Thus, the Court held that the Defendant Platforms being the publishers of the defamatory content and clearly identifiable was undoubtedly necessary and proper parties and the suit was not liable to be dismissed for the non-joinder of parties.
Whether the material is defamatory in nature?
The Delhi High Court was very clear on this point stating that on the perusal of the transcript of the video it was found that the same was nothing but a summary of the book 'Godman to Tycoon— the Untold Story of Baba Ramdev' which was banned w.e.f. August 11, 2019 by the order of the Delhi High Court. The offensive parts of the book, which the Court ordered to be deleted, were reproduced in the video and therefore the same was held to be defamatory in nature.
Not exempted under Section 79 of the Information Technology Act, 2000
The definitions of computer network, computer resource, computer system, intermediary contained in Section 2(j,) 2(k), 2(l), 2(w) were discussed along with Section 79 of the IT Act, 2000 which exempted the intermediaries from liability in certain cases. The Delhi High Court held that if the intermediaries want to claim exemption they need to comply with the conditions of the Section 79 of the IT Act, 2000. Section 79 mandates the intermediaries to disable access to the impugned content "upon receiving actual knowledge or on being notified by the appropriate Government or its agency that any information, data or communication...is being used to commit the unlawful act..." i.e., to exercise due diligence. Thus, as the Defendant platforms did not exercise due diligence they could be exempted under the said Section 79. The Court further held that the intermediary platforms, including the Defendants, were bound to remove the impugned content from the computer network it resides in or is connected to without disputing the extent or limit of blocking of such impugned data.
Need for Global Injunction
The Court took a firm stand on ordering for a global injunction stating that geo-blocking is partial removal of the data and therefore, it would render the order incomplete and ineffective. It held that the blocking of the content depends upon where it is uploaded from. Thus, the act of uploading vests jurisdiction in the courts where the uploading takes place. If data uploaded from computer resource located in India is found to be offensive by the Indian courts, it is very much within the jurisdiction of the Court to order the Defendant Platforms to take it down from that network and the network on which it has been replicated or disseminated on other servers or platforms even if it is located outside the territorial jurisdiction of the Indian Courts. Section 75 of the IT Act, 2000 also provides for extra territorial application to offences or contraventions committed outside India, as long as the computer system or resource which was used for such offence or contravention is located in India. Geo-blocking would not fully block the data as the same would still be accessed on the global domain. The obligation to "expeditiously remove or disable access" is negative as well as positive obligation to remove or disable the data completely and not partially block it. It stated that an order for geo-blocking would also be deviating from the judgment of Supreme Court in the case of Shreya Singhal v. Union of India where it was held in that removal or disabling of data is linked with the computer resource and not with the location of the user or the viewers.
The Court has tried its best to strike a balance between safeguarding Plaintiff's right of privacy, dignity and reputation under Article 21 and the Defendants' rights to freedom of speech and expression under Article 19 of the Constitution of India. It made it very clear that rights under Article 21 were of prime importance and needed to be protected at all costs. It recognised that rights under Article 19(1)(a) were subject to certain reasonable restrictions, defamation being one of them. Thus, global injunction was ordered to protect the Platiffs' dignity completely.
The Court by its decision also tried to ensure that traditional laws like defamation are in congruence with the growing technology. With the internet and social media platforms being worldwide, it may become important to safeguard the rights of the victims globally. Further, it may be difficult to identify or stop the actual culprits as they may take advantage of the loopholes in technology. Thus, the need for such stringent measures.
The Court while trying to achieve the above objectives disregarded the fact that it is adding to the already thwarted and poor jurisprudence on global takedown orders. Some of the points that were overlooked by Court in this matter are as follows:
- Comity of Courts: In the case of Google LLC v. Equustek Solutions Inc.2, the Canadian Court ordered Google to take down or de-list or de-index certain websites globally in a lawsuit brought by the tech company Equustek. Google brought a lawsuit in the district of Northern district of California where it is headquartered requesting a declaratory judgment preventing the enforcement of the order. The U.S. Court granted the order stating that order of Canadian Court "threatens free speech on global internet". The Delhi High Court while deciding this case was not mindful of this point and passed such an order.
- Varying Standard of free speech: The Court failed to take notice of the fact that there is no set standard or benchmark for freedom of speech. What is defamatory in one country may perhaps not be so in some other country. So global take down of such might result in restricting the right to information of citizens of some other country and in turn, expose the Defendant Platforms to legal proceedings and liabilities.
- Notice for take downs: The Court have in its previous judgment of Shreya Singhal v. Union of India, clearly stated that the platforms should disable the content or take it down only upon the order of the Court and not upon its own discretion or request of the party affected. However, in this case it has been ordered that the Defendant Platforms will have to remove any derogatory content upon being notified by the Plaintiff and if they don't wish to take down the said content they will have to take recourse of the law.
The question as to whether a global injunction is valid or not is still not settled and the jurisprudence regarding the same provides no answer. Facebook Inc. has appealed before the division bench of the Delhi High Court against this order and the same will be heard on December 7, 2019. It will be interesting to see the endeavour of the division bench to balance out both the right to reputation and freedom of expression. Further, it will be interesting to see the evolution of laws in relation to defamtion over social media and if countries try to harmonise their national laws in relation to the same.
1 AIR 2015 SC 1523.
2  1 SCR 824, Supreme Court of Canada.
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