Following the Nirmal Baba order, where the Delhi High Court, had made explicit reference to the IT Rules, and had relied heavily on the 36 hour takedown timeline, another instance of the Court citing the IT Rules to direct an intermediary for content removal has emerged – The Delhi High Court in an interim order passed on 9th May 2012, has directed Google, to remove derogatory content against spiritual leader, Sri Sri Ravi Shankar, founder of Art Of Living, from all of its Blogspot pages in addition to the ones mentioned in the suit application, according to an IANS report (via The Asian Age).
The suit which was filed by Vyakti Vikas Kendra,India public charitable trust through its trustee Mahesh Gupta, Gautam Vig, Bhanumati Narsimhan and Sharmila Murarka against Jitender Bagga, and Google, for indiscriminately sending e-mails and publishing a large number of blogs with defamatory content on blogger.com, also sought damages to the tune of Rs 5.09 crore.
In its interim order, the Delhi High Court said that there was strong prima facie case against Jitender Bagga and Google, and complainants will suffer irreparable loss and injury, if content was not removed, and asked Google to remove all defamatory content against the spiritual leader and the organisation, within 36 hours.
The court said:
“In view of the foregoing facts and reasons mentioned above, it appears that the plaintiffs have been able to make out a strong prima facie case of passing of ex-parte interim order. The balance of convenience also lies in favour of the plaintiffs and against the defendants. Incase, interim order is not passed, the plaintiffs will suffer irreparable loss and injury. Thus, till the next date, the defendant No. 2 is directed to remove all defamatory contents about the plaintiffs posted by the defendant No.1 on defendant No.2‟s website http://.blogger.com/ as well as the links mentioned in paragraph 4 of the present application within 36 hours from date of knowledge of the order passed by this Court. The defendant No.1 is restrained from sending any e-mail including e-mails, the details of which are given in para 7 of this order or posting any material over the internet which has a direct or indirect reference to the plaintiffs or the Art of Living Foundation or any member of the Art of Living Foundation, or His Holiness Sri Sri Ravi Shankar.”
Reference to IT Rules: Similar to the case related to Nirmal Baba, the court in its order also made reference to the IT Rules or Information Technology (Intermediaries Guidelines) Rules 2011. As Apar Gupta noted in his post, the IT Rules have been under a cloud as they have been described to be against our constitutional provisions and have even been flagged for discussion in parliament. Shojan Jacob, a Kerala based lawyer, has even filed a Public Interest Litigation in the Kerala High Court, challenging the constitutional validity of Rule 4 (intermediaries guidelines) of the IT Rules 2011, deeming it as arbitrary, unreasonable, illegal and unconstitutional. However, at present they do have the force of law. The Delhi High Court refers to these rules extensively, stating that Google as an intermediary and was under an obligation to remove unlawful content if it receives a notice from the affected party. The court states :
Defendant No.2 (Google) is an “intermediary‟ within the definition of Section 2(1) (w) and Section 79 of the Information Technology Act, 2000. Under Section 79 (3)(b) of the IT Act,2000, defendant No.2 is under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service. He is bound to comply with Information Technology (Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due diligence or publish any information that is grossly harmful, defamatory, libellious, disparaging or otherwise unlawful.
Rule 3(4) of the said rule provides obligation of an intermediary to remove such defamatory content within 36 hours from receipt of actual knowledge. The said rule expressly provides as follows-
” The Intermediary , on whose computer system the information is stored or hosted or published , upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in sub rule (2) above, shall act within 36 hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub rule (2).”
Google clearly mentions that Blogger is a provider of content creation tools, not a mediator of that content, and that it doesn’t remove content unless it violates its policies or is provided with a court order. It categorically mentions that Personal attacks or alleged defamation, Parody or satire of individuals, Distasteful imagery or language, and Political or social commentary are some of the types of content that it won’t remove with a Court Order. Since the IT Rules make it an intermediary, and ask for active moderation, would Google change its policies for India?