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Google appeals Delhi HC order that might classify it as social media intermediary

Google on Wednesday appealed an April 20 judgement (pdf) by the Delhi High Court that it said would essentially lead to Google Search being classified as a social media intermediary under the law. A division bench of the Delhi High Court on Wednesday issued notice on the appeal, CNBC-TV18 reported.

The April 20 order came in a case filed against multiple tech companies by a petitioner who found her social media pictures uploaded on adult sites, which were then cached by Google Search. While Google removed outdated cached results, the petitioner said that the images were reappearing on other sites, leading the court to order the company to proactively remove all similar images when approached by law enforcement.

In a statement to the media on the 82 page judgment pronounced by a single judge bench, Google said:

Search engines are a reflection of the content and information that is available on the Internet. And while we maintain a consistent policy over removal of objectionable content from search results, the Delhi High Court order has cast certain obligations that would wrongly classify Google search as a social media intermediary. The direction also requires proactively identifying and globally disabling access to any content which may be similar to the offending content, that may appear on any other websites/online platforms, or in any other context. We’ve filed an appeal against this part of the order and look forward to explaining the steps we take to remove objectionable content from Google search results. [emphasis added]

Under the Intermediary Rules, Google subsidiary YouTube likely has obligations to comply, but the court’s order essentially makes Search subject to some of the same rules, something the company argues will lead to a burdensome classification of a social media intermediary.

“Use automated tools to proactively […] disable access”

The order by the Delhi High Court told Google (as well as Yahoo, Bing and DuckDuckGo) said that:

(iii) A direction is issued to the search engines Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo, to globally de-index and de-reference from their search results the offending content as identified by its Web URL and Image URL, including de-indexing and de-referencing all concerned web-pages, sub-pages or sub-directories on which the offending content is found, forthwith and in any event within 24 hours of receipt of a copy of this judgment along with requisite information from the Investigating Officer as directed below;

(iv) A further direction is issued to the search engines Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo, to endeavour to use automated tools, to proactively identify and globally disable access to any content which is exactly identical to the offending content, that may appear on any other websites/online platforms; [emphasis court’s]

The order appears to allow law enforcement to directly order, backed with the court’s authority, any website to block access to content that has been deemed unlawful.

The aggrieved party should also be permitted, on the strength of the court order passed regarding specific offending content, to notify the law enforcement agency to remove the offending content from any other website, online platform or search engine(s) on which same or similar offending content is found to be appearing, whether in the same or in a different context. Upon such notification by the aggrieved party, the law enforcement agency shall notify the concerned website, online platform and search engine(s), who (latter) would be obligated to comply with such request; and, if there is any technological difficulty or other objection to so comply, the website, online platform or search engine(s) may approach the concerned court which passed the order, seeking clarification but only after first complying with the request made by the aggrieved party. [emphasis court’s]

The order reasoned that this balances the right to reinstate content and the risk to reputation of the petitioner in the case. Under the Intermediary Rules, the court said, people whose content is taken down can appeal removal, but only after it is first removed immediately.

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