This post has been authored by Aryan Babele, a final year student at Rajiv Gandhi National University of Law (RGNUL), Punjab and a Research Assistant at Medianama.
On 23rd October 2019, the Delhi HC delivered a judgment authorizing Indian courts to issue “global take down” orders to Internet intermediary platforms like Facebook, Google and Twitter for illegal content as uploaded, published and shared by users. The Delhi HC delivered the judgment on the plea filed by Baba Ramdev and Patanjali Ayurved Ltd. requesting the global takedown of certain videos which were alleged to be defamatory in nature.
The Court passed the order in the context of its observation that there is a ‘hare and tortoise race’ between technology and law such that the ‘technology gallops, the law tries to keep pace’. Such observation reflects the Court’s intention to interpret the Information Technology Act, 2000, [hereinafter referred as IT Act 2000] in a manner which will ensure the effective implementation of judicial orders and mitigate the circumvention of such orders by use of advanced technology.
However, the Court’s order is attracting criticism globally from several internet-freedom activists. It seems that the Court has made a hasty attempt to win the ‘hare and tortoise race’ and in doing so has failed to consider the decision’s impact on IT law jurisprudence and conflict of law provisions. This article aims to analyze and highlight significant aspects of the Delhi HC’s judgment, which the Court failed to take note of while issuing its decision.
Background- the case of Swami Ramdev v. Facebook
In Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC], Swami Ramdev (a prominent yoga guru and public figure) filed a case before the Court against Facebook, Google, YouTube and Twitter, inter-alia, praying for the global take down of defamatory video-contents as uploaded, published and shared by users of these intermediary platforms.
The present case arose out of the publication of certain videos on the defendants’ platforms, which were based on certain offensive portions of the book titled “Godman to Tycoon: The Untold Story of Baba Ramdev’ by Priyanka Pathak Narain, against which an ad-interim injunction was granted by the Court in Swami Ramdev v. Juggernaut Books [CM (M) 556/2018] in May 2018.
In January 2019, the Court passed an interim injunction against the defendants’ platforms to disable access to the offending URLs and weblinks for the Indian domain as per Section 79 of the IT Act, 2000a practice that is commonly referred to as “geo-blocking”.
However, the plaintiff argued that geo-blocking is an ineffective solution as the objectionable content is widely available on the internet except India and internet users in India can still access such content using VPNs and other such mechanisms. Therefore, the plaintiff argued that only a global blocking order would constitute an effective remedy in the present case.
Internet intermediaries argued against global take down orders as they pose a number of technical and legal difficulties. Firstly, cross-jurisdictional laws vary in standards for determining defamation, and hence disabling access globally will breach the principles of international comity. Secondly, in order to globally disable access to the content, the intermediary platforms have to monitor every upload on their platforms, an exercise that is technically challenging and legally questionable.
The Delhi HC’s Judgment
The Court agreed with the plaintiffs’ submissions and went on to hold that online intermediary platforms can be ordered to take down content globally by a competent court in India, as the content is published on their global services. It observed that complete removal is needed as there are easy –to-use applications available that help users circumvent the geo-blocking and render the take-down order useless. Therefore, removal of content on a global scale is the only effective remedy as per the Court’s observations.
Further, the following directions, hereby in brief, have been put forth by the Court to support its order:
- The Court broadened the interpretation of Shreya Singhal v. Union of India: As per the Court, Section 79 of the IT Act 2000 provides that in order to avail the safe-harbor immunity, “intermediaries have to take down and disable access to the offending material residing in or connected to a computer resource in India”. It interpreted the definition of ‘Computer Resource’ as given in the IT Act, such that the “Computer Resource” as per the judgment “encompasses within itself a computer network, which would include a maze or a network of computers. Such a computer network could be a global computer network”.
- Global take downs are technologically possible: The Court held that whenever any content violates the community standards of the internet intermediary platforms, such content is taken down globally by the platform on its own. Therefore, it observed that it is technologically possible for the platforms to take down content globally on the orders of the competent courts as well.
- Application of IT Act in extra-territorial jurisdiction: In order to justify the global take down, the Court explained that, “a perusal of Section 75 of the 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”. Therefore, the Court held that as long as the content has been uploaded from the Computer Resource located in India, Indian courts will be competent to pass the global injunction/ take down orders.
- Allowing the direct ‘Notice-and-Takedown’ mechanism for the future uploads of the objectionable content: The Court has held that the plaintiffs can approach the intermediaries directly if it finds the publication of the questionable content again on their online platforms in future. However, the Court has provided an option of the counter-notice system for intermediaries, by opting which the intermediaries can refute claims of illegality and shift the onus of proof back on plaintiffs, such that after which the plaintiffs will have to approach the Courts for an appropriate remedy.
It is completely understandable that the Court is favoring the global take-down order to make its injunction orders against global services more effective. Unfortunately, in its broad evaluation of legal feasibility of the global injunction order and technological capabilities of intermediaries to obey the same, the Court missed on considering certain very significant arguments:
- Misuse of VPNs other way around: The Court accepted the plaintiffs’ arguments that geo-blocking would be circumvented due to the wide availability of easy-to-use applications like VPN; however, it failed to take into account the possibility of the content being uploaded through VPNs and other web proxy services. Therefore, global takedown orders would not constitute an appropriate remedy.
- Violation of principle of international comity: Cross-jurisdictional defamation laws vary from jurisdiction to jurisdiction. If global takedown was mandated, platforms will be wary of falling foul of law in other countries. Not respecting the laws of other country amounts to the breach of principle of international comity and conflict of laws.
- Violation of the principles of privacy and free speech: The Court failed to appreciate the technical difficulties involved in the execution of global take down orders, as it contemplates the intermediary platforms monitoring all uploaded content in order to stop its dissemination globally. This will further impose the risk of private censorship on the Internet and affect the right to free speech and privacy of users.
- Shifting away from the law established by the Manila Principles on Intermediary Liability and Shreya Singhal case: The Court has allowed plaintiffs to directly approach the intermediary platforms in case of re-uploading of the objectionable content in future. This is a great shift away from the existing process under Section 79 of the IT Act, 2000 as established by the Supreme Court’s landmark judgment in the Shreya Singhal case, which requires intermediaries to take down or disable the access to the content only in cases of receiving an order from either the government or the Court to do so. The same is considered global best practice according to the Manila Principles on Intermediary Liability. The Manila Principles, as signed and endorsed by various intermediaries and civil society groups from around the world, advances framework of best practices to safeguard human rights when intermediaries are asked to restrict online content.
- The question of extraterritorial application of the IT Act in the present case: As per Section 75 of the IT Act 2000, it is clear that the Act applies extra-territorially to certain offences or contraventions committed outside of India if the same is committed using “a computer, computer system or computer network located in India, the contraventions as contemplated under the Act are provided for in Sections 43, 43A, 66A, 66B, 66 66E and Section 66F.” Defamation is not covered in any of these provisions.
Heavy reliance on uncertain jurisprudence
The Court has heavily relied on certain foreign judgments while reaching its verdict. The issue with the same is that the jurisprudence around geo-blocking and global injunctions is unsettled and still developing; the Delhi HC’s order only serves to complicate the present issue.
The Court has relied on the case of Google Inc. v. Equustek Solutions Inc., which is the living proof of the unsettled jurisprudence. The Supreme Court of Canada ordered Google to de-index listings from its search results in order to provide protection to trade secrets of a subject from Google globally. While, the Supreme Court of Canada upheld a global injunction against Google, the US Court sided with Google ruling that the Canadian order “threatens free speech on the global internet”.
The Court also relied on the case of Eva Glawischnig-Piesczek v. Facebook Ireland Limited– in which the CJEU ordered Facebook and other platforms to remove questionable content, copies of the same and block the access to the same, globally. While emphasizing on the case, the Delhi HC didn’t consider at all the CJEU decision in the case of Google v. CNIL, in which it was held that the Google is not required to de-reference listings from its global service, just because the content has been declared to be illegal by an EU member state.
It is clear that the Delhi HC failed to take into consideration the complexities involved in global blocking or global take down mechanism when delivering the present order.
The Court also failed to consider certain important foreign decisions which have specifically highlighted the issue of difference in nature of law. In Google v. CNIL, the CJEU held that the ‘right to be forgotten’ (which was the main issue in the case) has differences in standards for its application and interpretation around the world. Therefore, it agreed that it is enough for Google to block access to the questionable content from the EU domain only. Further, in Bachchan v. India Abroad Publications Inc., the Supreme Court of New York County refused to enforce a defamation judgment awarded by the High Court of Justice in London, England, ruling that it will be a threat to the free speech protections as offered by the First Amendment to the US Constitution.
The internet has always been a challenge for courts and governments. Courts have generally found themselves behind technology in the race and unable to assert absolute jurisdiction. The fact that an injunction was ordered against an intermediary on a global scale doesn’t make it necessarily invalid and aggressive. After all, the limited denial of access in the local domain is not protecting the underlying rights at stake; in such cases global takedown orders seem to be the right method to ensure justice. But all of this is required to be done while mediating conflicting interests as well as recognizing the protection to certain forms of speech.
take-down orders become mainstream, regressive laws on freedom of speech and
expression online will become a norm. The Courts and governments, in order to
win this ‘hare and tortoise race’, cannot ignore countervailing arguments in
relation to freedom of speech and right to privacy. These rights must not be
under-weighed against values like national integrity, security interests, etc.,
rather an effort needs to be made to strike a balance between both the sides.
The judgment is under
challenge now by Facebook before a Division Bench, and the matter is listed for
final hearing on January 31, 2020. The Court must set a precedent in the
unsettled jurisprudence that will consider the free speech and privacy rights
in the world of internet at the intersection of technology and laws such as
 Apoorva Mandhani, Why Baba Ramdev’s win against Facebook, Google in Delhi HC only adds to judicial confusion, The Print, https://theprint.in/india/governance/judiciary/why-baba-ramdevs-win-against-facebook-google-in-delhi-hc-only-adds-to-judicial-confusion/312403/.
 Balu Nair, Delhi HC Gives Expansive Interpretation to Section 79 of IT Act: Issues Global Blocking Order Against Intermediaries, SpicyIP, https://spicyip.com/2019/11/delhi-hc-gives-expansive-interpretation-to-section-79-of-it-act-issues-global-blocking-order.html.
 Google Inc. v. Equustek Solutions Inc., Cambridge Core, https://www.cambridge.org/core/journals/american-journal-of-international-law/article/google-inc-v-equustek-solutions-inc/E667668ED944EBE52233E17320478448/core-reader.
 Google v. CNIL, CJEU Case C-507/17.
 Bachchan v. India Abroad Publications Inc., 154 Misc 2d. 228, 585 N.Y.S.2d 661.