Delhi High Court orders for global takedown of Data November 26, 2019
Published in: Between The Lines
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The High Court of Delhi, in the case of Swami Ramdev and Another v. Facebook, Inc., and Others (decided on October 23, 2019) ordered Facebook, Inc. and other platforms to takedown, remove, block, restrict or disable access on a global basis, to all the defamatory videos and content that was challenged in this suit, from Indian IP addresses, holding that the videos are not just offensive against the plaintiffs but could also be considered to border on threats constituting violations of law.
Swami Ramdev and Patanjali Ayurveda Limited (“Plaintiffs”) filed a suit in the Delhi High Court against Facebook, Inc., Google, Inc., YouTube LLC, Google Plus, Twitter International Company and Ashok Kumar (John Doe) (“Defendants”) on the ground that various defamatory remarks and information in the form of videos, based on the book ‘Godman to Tycoon- the Untold Story of Baba Ramdev’, are being published on the web platforms of the Defendants.
The named book was restrained earlier by a Single Judge Bench of the Delhi High Court from being published, distributed or sold without deleting the offending portions of the book. The Plaintiffs alleged that the allegations contained in the videos uploaded on the Defendants’ platforms were the same as the offending portions of the book which were directed to be removed. Thus, an interim order was granted directing removal of the offending URL and web links for the domain of India. Thereafter, the platforms have placed on record the Basic Subscriber Information (“BSI”) relating to the uploading of the videos. None of the Defendants have any objection to blocking the URLs and disabling the same, insofar as access in India is concerned. However, all the Defendant platforms have raised objections to removal / blocking / disabling the impugned content on a global basis.
Since the Defendants had no issue in blocking the content in the Indian domain, the prima facie issues and arguments discussed in court were on the question of global blocking of the content –
1. Mis-joinder/ non-joinder of parties;
2. Whether the content is defamatory?
3. Whether the Defendants are intermediaries and if so, what should be the form of injunction order that is to be passed against them?
The Plaintiffs put forth the argument that if the Defendants seek the protection under Section 79 of the Information Technology Act, 2000 (“IT Act”) on the ground that they are intermediaries, then they are bound to follow due diligence required under law. The Plaintiffs relied on the case of Shreya Singhal v. Union of India [AIR 2015 SC 1523] to interpret the phrase “actual knowledge” in Section 79 in a Court order, leading to the argument that, once the Court passes an order, they are bound to disable the content globally, and cannot raise objections to the geographical extent of the implementation of the injunction. The Plaintiffs further relied on the definitions of “computer resource”, “computer system”, “computer network” and “data” in the IT Act respectively to submit that the IT Act does not provide that the blocking has to be restricted to the territory of India. Ultimately, the Plaintiffs submitted that it is impractical to force them to avail legal remedies in every country to ensure that content is taken down, and that such a stance would also render the remedy granted by the Court completely ineffective.
The Defendants placed their reliance on various cases such as Google, Inc. v. Equustek Solutions, Robert Angus and Clarma Enterprises, Inc. [2017 SCC 34 (Supreme Court of Canada)] and Google LLC v. Equustek Solutions, Inc., (decided on December 14, 2017), to submit that what constitutes defamation varies from jurisdiction to jurisdiction, and therefore, passing of a global disabling order would be contrary to the principle of comity of courts and would result in conflict of laws. It was also one of their major contentions that no effort was made by the Plaintiffs to implead the persons whose details were provided in the BSI by the Defendants, and parties that were actually responsible for uploading the actual content online.
Another line of argument put forth by the Defendants was that the distribution of information and views on the internet were an integral part of freedom of speech and expression, and that the criticism is ought to be borne by the Plaintiffs as they are public figures. It is also argued that if orders can be passed by national Courts which would result in global removal of content, then law of free speech on the internet would be reduced to the lowest common denominator.
In rejoinder submissions, the Plaintiffs submitted that the BSI released by the Defendants’ platforms do not give any details except the IP addresses, and in some cases, mobile numbers and e-mail addresses have been given. It was submitted that the list does not lead to the clarity whether those individuals are even identifiable.
ANALYSIS AND FINDINGS OF THE DELHI HIGH COURT
On the question of mis-joinder and non-joinder, the court observed and found that the BSI released by the Defendants contains information in the form of account IDs along with IP addresses, and the Defendants have to make detailed enquiries and investigations in order to identify the complete contact details of the individuals. The court found that the Plaintiffs could not have ascertained the identity of the individuals at the time the suit was filed, as the information appeared cryptic. Thus, the Delhi High Court found that the objection by the Defendants that, due to non-joinder of these parties the suit is not liable to be entertained, is not tenable at this stage. Therefore, this led to the conclusion by the Court that, at the prima facie stage, the suit is not liable to be dismissed for non-joinder of the alleged uploaders of the information or the publishers, or the author of the book.
On the issue whether the content in the video is of defamatory nature, the Delhi High Court found that there was no uncertainty in the fact that the video clearly attempted to give an impression to the viewers that the Plaintiffs have been involved in various murders, financial irregularities, misuse of animal parts, etc. The Court also observed that the video claimed to have derived and summarized the views of the book itself, thus making the Single Judge Bench judgement, that held certain parts of the book as defamatory, clearly a relevant fact. It further observed and found that the Single Judge, after considering the law of defamation, including the balance between Article 19(1)(a) and Article 21 of the Constitution of India, had concluded that the content of the book is not justified. The implicit allegations have been held to be prima facie untrue. Therefore, the Delhi High Court held that the videos were in violation of the judgement earlier passed by the Single Bench. This led the Delhi High Court to conclude that the content of the videos was defamatory.
On the third issue, the Delhi High Court analysed the definition of “geo-blocking”, and concluded it to mean the blocking of a content from country to country, or one region to another. It also observed that when a content is geoblocked, it would still be available on the other global platforms save on the platforms of the country where geoblocking has been carried out. Referring and analysing the international legal position on geo-blocking and global injunctions, the Court observed that some courts have taken the view that granting of global injunctions is not appropriate, and other courts and forums, in recent decisions, have taken a view that if the circumstances warrant, global injunctions ought to be granted. The Court noted that arguments pertaining specifically to comity of courts, conflict of laws, etc. were raised even in these proceedings. It analysed in detail, the terms “access” and “intermediaries” in Section 79 of the IT Act. It also elaborately discussed the relevant holdings of several Indian and international case laws, comparing their relevancy to the present factual matrix, concluded that so long as the uploading from India led to the data or information residing in the network or being connected to the network, the same ought to be disabled or blocked globally.
The Court also analysed the exact order of injunction that is required to be passed in the present case. It concluded that Section 75 of the IT Act shows that the IT Act does have extra territorial application to offences or contraventions committed outside India, so long as the computer system or network is located in India.
DECISION OF THE DELHI HIGH COURT
On the findings and conclusions of the Delhi High Court, as discussed above, it passed the following directions in the present case, clearly iterating that the views of the Court in the judgement are prima facie in nature-
1) The Defendants were directed to take down, remove, block, restrict/ disable access, on a global basis, all such videos/ web links/ URLs that had the defamatory videos discussed in the judgement, which have been uploaded from IP addresses within India.
2) The Defendants were directed to block access and disable the URLs/ links that contained the defamatory videos, which have been uploaded from outside India, and prevent them from being viewed in the Indian domain and ensure that users in India are unable to access the same.
3) The Court also further directed the Plaintiffs to notify the Defendant platforms, when they find any further URLs containing defamatory/ offending content as discussed above, which shall then be taken down by the Defendants either on a global basis, or for the Indian domain, depending on from where the content has been uploaded. Upon receiving such intimation from the Plaintiffs, if the Defendants are of the opinion that they were not defamatory, they shall intimate the Plaintiffs of the same and the Plaintiffs could seek remedy in accordance with law.
Vaish Associates Advocates View
The Delhi High Court has given a judgement with far reaching consequences, which may open a pandora’s box of territorial conundrum. The global application of an injunction not only gives sweeping powers to block data, but at the same time involves imposition of India’s take on what comprises of defamation on other jurisdictions.
This judgement is against the tide in the international trend of free flow of data on the internet, and takes a rather cloistered view of the same. The Court of Justice of the European Union passed a judgement on September 24, 2019 holding that Google cannot be directed to remove search results from its global service, just because the content was declared illegal by an EU member state.
This judgement has also allowed the Plaintiffs to directly approach the platforms in case of any future content, and thereafter, if the platforms hold it to be not defamatory, it can approach the courts. This permission is a deviation from the settled principles of law which require an intermediary to take down content only when there is an order from the government or the court, in accordance with the IT Act. If such permissions of making direct requests to the intermediaries is entertained, the intermediaries will be required to judge thousands of requests every day, which would be difficult to act upon.
For more information please write to Mr. Bomi Daruwala at [email protected]DOWNLOAD NEWSLETTER