The Delhi High Court has ordered YouTube to “remove and disable access to” the two videos published by Swedish YouTuber Felix Arvid Ulf Kjellberg, also known as ‘PewDiePie’, from its platform, reports Bar and Bench. A single judge bench of the Delhi HC on Monday held in favour of T-Series owner, Super Cassettes Pvt. Ltd. It granted an injunction against YouTube under Order 39 Rules 1 and 2 of the Civil Procedure Code.

T-Series had filed an application with the Delhi HC seeking an injunction from “uploading, communicating or making available” the videos in question, namely “T-Series Diss Track/ Bitch Lasagna” and “Congratulations”. T-Series contended that the PewDiePie is uploading defamatory and disparaging music videos targeting the private music label, as well as the Indian community, to regain its top position on YouTube. It further contends that the impugned videos contain “racist, inflammatory and hateful remarks against them as well as T-Series in a bid to ridicule and disparage the plaintiff and its trademark”.

The order was granted in the absence of a representative of YouTube present in the Court’s hearing, also known as an ex-parte injunction. The basis of the Court to pass the order in favour of T-Series despite this:

Order 39 of the Civil Procedure Code provides for a temporary injunction that can be granted even “ex parte”. The following are principles for the consideration by the Court while granting temporary injunction: 1) The Court must be satisfied that the applicant has made out a prima facie case to go to the trial; 2) The Court must be satisfied that there is a bonafide contention between the parties and on which side, in the event of success, will lie the balance of convenience, if the injunction is not granted; 3) The court must be satisfied that the plaintiff may suffer from irreparable loss or injury which cannot be adequately compensated by damages if the injunction is not granted; and 4) where a permanent injunction cannot be given the temporary injunction is not allowed.

PewDiePie v. T-Series

For quite a long time now, T-Series and PewDiePie have been in a tussle to become the most subscribed YouTube channel in the world. PewDiePie was the most subscribed channel since 2013, but T-Series managed to overtake PewDiePie multiple times in the last six months. T-Series reported a massive surge in subscribers last year due to increased internet access in India.

PewDiePie, amidst the tussle, recently released a video “Congratulations” to ridiculously praise T-Series for outrunning him in the subscription race for a brief period. In the video, he made remarks at T-Series CEO Bhushan Kumar. He accused Kumar of being involved a tax evasion case and for sexual harassment allegations which were reported in October 2018. However, he emphasized sarcastically in the video that “for legal reasons, that’s a joke”.

Delhi HC’s order

The high court, on perusal of T-Series’ submissions, observed that “repeated comments made which are abusive, vulgar and also racist in nature… It would be in the interest of justice that these videos are taken off by YouTube”. The Court also took note of communication between PewDiePie and T-Series after the release of the first video, where PewDiePie apologized for posting the video and “assured that he is not planning any more video on the same line”.

The Court deemed the prima facie case and balance of convenience in favour of T-Series. It directed YouTube to “remove and disable access” to the videos and ensure that they do not get uploaded again on the platform. The order gave YouTube two weeks to comply.

Section 79 of the Information Technology Act, 2000, provides qualified immunity to intemediaries from any liability, as long as they have followed the prescribed due diligence requirements and have not conspired, abetted or aided an unlawful act. However, the protection lapses if an intermediary with “actual knowledge” of any content used to commit an unlawful act, or on being notified of such content, fails to remove, or disable access to it.

However, as per the law laid down by the Apex Court of India in Shreya Singhal v/s Union of India,  an intermediary such as Youtube has to remove any objectionable content once it receives “actual knowledge” i.e. by an adjudicatory authority issuing an order compelling intermediaries to remove the content. They will be liable on failing to expeditiously remove or disable access to content after the actual knowledge through a court order or a Government notification about the same.