Observing that “the race between technology and the law could be termed as a hare and tortoise race – as technology gallops, the law tries to keep pace”, the Delhi High Court on October 23, 2019 ruled that Indian courts can issue global takedown orders to platforms such as Facebook, Google and Twitter for illegal content uploaded by users. The Court also held that the provisions of the Information Technology Act, 2000 (“IT Act“) had to be interpreted in a manner so as to ensure that judicial orders were effective and “not toothless”.
In the said case, Swami Ramdev vs. Facebook (CS (OS) 27/2019), the petitioner – Swami Ramdev requested the Court to order global takedown of videos, which were defamatory in nature, from online platforms – Facebook, Google, YouTube and Twitter (including other unnamed intermediaries). The videos were about a book on Swami Ramdev titled – 'Godman to Tycoon – The Untold Story of Baba Ramdev' by Priyanka Pathak Narain. The petitioners in a separate suit before the Delhi High Court had already obtained a restraining order on the publishing of the book on the basis that the book contained defamatory content on Swami Ramdev's life.
All platforms agreed to takedown the content in question from their India specific domains and use geo-blocking to ensure refusal of access. However, global takedown by platforms was resisted based on principles of international comity, different standards of speech and defamation around the world, and that they did not actively monitor uploads on their platforms being intermediary platforms.
However, Justice Pratibha M Singh passed an order directing the social media platforms to takedown, remove, block, restrict/disable access to offending content uploaded from India, on a global basis as well (“Order“).
The Court relying on Shreya Singhal vs Union of India (2013 12 SCC 73) stated that once an intermediary had been ordered by a court of law to takedown content from its platform, such a platform must disable access not just from the local domains but from its global service. The Court also argued that when information is uploaded on internet platforms, they are available on their global services, thus at the time of takedown too, such platforms must remove the content from their global domains and not just locally.
Rebutting the question of Indian Courts to order global takedown of content, the Court relied on Section 75 of the IT Act and held that the IT Act allows for extra territorial application for offences or contraventions committed outside India, so long as the computer system or network is located in India. Thus, so long as either the uploading takes place from India or the information/data is located in India on a computer resource, Indian courts would have the jurisdiction to pass global injunctions.
Deviation from Shreya Singhal v. Union of India
Remarkably, the Court also permitted Swami Ramdev to approach the platforms directly for future uploads, adding that in case the platforms found future content to be not defamatory or violative, they could inform Ramdev, who could then approach the court if he wished to.
This is a significant departure from the Supreme Court's landmark judgment in Shreya Singhal v. Union of India, where the Apex Court had clarified that intermediaries would be required to takedown or block content only when they receive such an order either from the government or a court. It had specifically stated that such takedown would not be at its own discretion or upon receipt of request by an affected party.
Appeal by Facebook Inc
Facebook Inc has filed an appeal with the Division Bench, against the Order. The Division Bench has admitted the appeal and the matter is listed for final hearing on December 7, 2019.
The jurisdiction in India and abroad as regards geo-blocking and global injunctions seems to be still evolving, with the Delhi High Court Order the latest add-on to the unsettled jurisprudence. It will be interesting to find out how all this plays out in India with the final decision of the Division Bench in the said matter.
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