Facebook, Google, YouTube and Twitter have to globally disable access to offensive content if such content is uploaded from India, upon the direction of a court, the Delhi High Court has ruled. In case the offensive content is uploaded on these platforms from outside of India, they should block access to it to users in India, the Court held.
Geo-blocking offensive content is “partial” in nature because it can still reside on platforms’ global websites, and can be accessed from India, by using VPNs or by accessing the international websites of these platforms, a Single Judge Bench of Justice Prathiba M Singh said. She also held that according to Section 79 of the Information Technology Act, 2002, disabling and blocking of access has to be from the “computer resource,” which includes “the whole network and not a mere [geographically] limited network”.
The judgment was passed in a suit by yoga guru Ramdev and Patanjali Ayurved Ltd. against social media platforms Facebook, Google, YouTube, Google Plus, and Twitter. Darpan Wadhwa, who was representing Ramdev and Patanjali alleged that various defamatory remarks and information including videos, based on a book titled “Godman to Tycoon – the Untold Story of Baba Ramdev” are available on these platforms, and sought a decree of permanent and mandatory injunction along with damages. He argued that if the platforms fail to comply with the directions of the court, they would not be entitled to Safe Harbour under section 79 of the IT Act.
“Intermediaries cannot be judges in their own cause and cannot attempt to police content on their own. Since they do not claim any responsibility at the stage of uploading, the removal of content has to be without hesitation.” – Darpan Wadhwa
We are intermediaries, global blocking in conflict with international laws, say platforms
Facebook said that it is an intermediary under Section 79 of the IT Act and has no role in “initiating transmission, selecting the receiver of any transmission and/or selecting or modifying the information contained in the transmissions”. Relying on the Shreya Singhal judgement, Facebook said it didn’t have any obligations to proactively monitor content on its platform.
The company also argued that request for global blocking would result in a “conflict of laws situation”, as a global injunction might not be in accordance with laws in other jurisdictions and “jeopardize” Facebook’s status as an intermediary in other jurisdictions.
Google and YouTube both filed a common written statement and claimed that they are not publishers of the content, which has been created by a third party and uploaded on www.youtube.com. The platforms have no control over the content as it is the Internet on an “as is” basis. Google also argued that the IT Act applied only to the territory of India and defamation was not one of the offences contemplated under Sections 43, 43A, 66A, 66B, 66, 66E and 66F of the IT Act.
“It is submitted that active monitoring also cannot be directed. The injunction ought to be restricted to India, and only to the identified URLs.” – Google
Twitter submitted that a global blocking order would run contrary to the “principles of state sovereignty in international law and the principle of international comity”. It said that the laws relating to free speech and defamation are not co-extensive and differ from country to country. “Any order for a global takedown or global blocking would interfere with the rights of the people over whom the Court has no jurisdiction,” the company added.
“The local laws of every country cannot apply to the internet globally.” – Twitter
Content has to be taken down from ‘computer resource’: How Delhi HC defined ‘computer resource’
Intermediaries have to “expeditiously remove or disable access” in order to avail the exemptions under Section 79(1) and (2) of the IT Act, the court said. Also, the removal of the offending material has to take place “on that resource”, per the IT Act, the Court said before adding that the resource is a computer resource in which the “information, data or communication link” is “residing in” or is “connected to”.
“Computer resource is defined as a computer, a computer system or a computer network. It is not merely a single computer. It 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. Thus, a proper reading of Section 79(3)(b) would mean that if any information, data is residing in or connected to a computer network, i.e. a computer resource, the intermediary has to remove or disable access to the said information or data on that resource.” – Justice Singh
The Court also held that if uploading of defamatory content is done from IP addresses located in India, then Indian Courts would have the jurisdiction to direct the platforms to remove and disable access to that content, from the “computer network” of these platforms. It also said that geo-blocking content would not be in compliance with the Shreya Singhal judgement.
Facebook was represented by senior Advocate Parag Tripathi, Google and YouTube were represented by senior Advocate Arvind Nigam and Twitter was represented by senior Advocate Sanjeev Sindhwani.
Here’s a copy of the judgement: