Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
On Appeal Contracts Expression
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The Delhi High Court issued an injunction against Facebook, Google, YouTube and Twitter (Defendants) and other online intermediaries, directing them to globally take down a list of URLs from their platforms which were allegedly defamatory to the Plaintiffs. The case was brought by yoga guru Swami Ramdev in relation to an alleged defamatory video and related content posted and disseminated on the Defendants’ platforms. The impugned content summarized the contents of a book which had been found to be defamatory by another court. After a detailed analysis of the law on intermediary liability in India under the Information Technology Act, 2000 and the Information Technology Rules, 2011, the Court held that the intermediaries were obliged to take down and block all such illegal content and videos which had been uploaded from I.P. addresses within India, on a global basis. Further, for illegal content which was uploaded outside the Indian territory, the Court directed geo-blocking access and disabling viewership of such content from within India.
Swami Ramdev, the Plaintiff, is a public figure and yoga guru in India. The present decision originates from a gamut of related litigation regarding the publication of a book titled ‘Godman to Tycoon – the Untold Story of Baba Ramdev’. The book was authored by Ms. Priyanka Pathak Narain. In a separate suit in a lower court i.e., Karkardooma District Court, Swami Ramdev/ Plaintiff challenged the contents of the book as defamatory. After a trail of decisions rendered by the lower court, Swami Ramdev approached the High Court under Article 227 of the Constitution of India. The High Court, through an order dated 29.09.2018, held certain parts of the book as defamatory (Swami Ramdev v. Juggernaut Books Pvt. Ltd. and Ors., (India) CM (M) 556/ 2018.) Accordingly, the Court restrained the publisher and author from publishing, distributing and selling the book without deleting the offending portions. The 2018 judgment has been challenged by the publisher before the Supreme Court and is pending final adjudication. However, the 2018 judgment of the High Court is operative since the Supreme Court has not ordered a stay on the judgment pending final adjudication.
The present judgment pertains to a separate suit filed by Ramdev and Patanjali Ayurved Ltd. (manufacturer of herbal products) seeking a global injunction against the publication of a defamatory video, as well as shared and re-uploaded versions of the same, and related content on the Defendant platforms. The videos and content under challenge summarised the contents of the book, parts of which have been held as defamatory by the 2018 judgment of the Court. All the information in the videos had been derived solely as a summary of the book and there was no denial of this fact by the Defendants.
The Court, therefore, focused its observations to the extent of takedown obligations of the Defendants. On the first date of the hearing in this case, i.e. on 24.01.2019, the Court passed an interim order for an injunction, directing the Defendants to remove/disable or geo-block access (blocking of content only in the domestic boundaries of a country where the content is in breach of the domestic laws ) to all the offending URLs and web links. None of the Defendants had any objection to the takedown of the content when accessed from India but raised objections to the global application of this takedown order.
Ramdev argued that the Defendants who sought protection under Section 79 of the Information Technology Act, 2000 (provides for intermediary liability and safe harbour exemptions to intermediaries) as passive intermediaries, were bound to disable the content globally under the direction of the Court. They argued that a reading of the Act shows that the application of the Act is based on the principle of long-arm jurisdiction and is not merely limited to the Indian territory. Therefore, the Defendants, ‘on gaining actual knowledge of the defamatory content on their platform through the court order must necessarily comply, without raising objections to the geographical extent of the implementation of the injunction’ [para. 8]. The principle of ‘actual knowledge’ of an intermediary is derived from Shreya Singhal v Union of India, AIR 2015 SC 1523 where the Court held that the protection granted to an intermediary ceases to exist in case the intermediary fails to remove the illegal content, after gaining ‘actual knowledge’ of such illegal content. Lastly, the Plaintiff submitted that as per the Information Technology (Intermediaries Guidelines) Rules, 2011, intermediaries were not empowered to decide whether the content is defamatory, which is the duty of the Court.
The Defendants, in response, submitted that the present suit was liable to be dismissed as the Plaintiff had failed to implead necessary parties such as the publisher, author of the book along with the persons disclosed in the basic subscriber information (BSI) which was submitted to the Court. On the issue of the extent of the takedown order, the Defendants submitted that a global takedown order would be ‘contrary to the principle of comity of Courts and would result in a conflict of laws as standards of defamation varied between countries’ [para. 10]. They argued that geo-blocking had already been implemented and should be an adequate remedy at this stage as thus far there had been no complaints and Ramdev’s reputational concerns were primarily in India. Further, granting a global injunction at the ‘interim stage was like decreeing the suit’ [para. 16] and was thus tantamount to rendering a judgment before the case had been fully litigated. The ‘mere apprehension of use of VPN and proxy servers to access global websites was not enough to presume that the data was likely to be transmitted and accessed in India’ [para. 17]. In support of the above arguments, the Defendants cited Suresh Jindal v. Rizosli Corriere Della Sera Pradzioni T.V. S.p.a., 1991 Supp (2) SCC 3 to argue that Indian Courts have concluded that national standards should not be “imposed” internationally through extraterritorial reach and that any restrictions should be as narrow as possible (see Shreya Singhal v Union of India, AIR 2015 SC 1523). They further relied on numerous international decisions (Google LLC v. Equuestek Solutions Inc., et al, US District Court, Case No. 5:17-cv-04207- EJD (December 14, 2017); Ajitabh Bachchan v. India Publications 154 Misc. 2d 228 (N.Y. Misc 1992), Supreme Court of New York County; Google Inc. v. CNIL, ECJ Case C-507/17.) and judgments of Indian courts (Sasikala Pushpa v. Facebook & Ors. CS (OS) 510/2016, Patanjali Ayurved Ltd. v. Facebook Inc. & Ors. CS(OS) 449/ 2018).
Pratibha Singh, J. delivered the decision as the sole presiding judge. The Court opined on three issues, namely: a) Mis-joinder / non-joinder of parties; b) Whether the uploaded content was defamatory; c) Whether the Defendants are intermediaries and if so, what should be the form of injunction order that may be passed?
Issue 1: Whether the suit was liable to be dismissed due to mis-joinder/non-joinder of parties?
Regarding the question of whether the suit was liable to be dismissed due to non-impleadment of the necessary parties i.e., the publisher and author of the book as well as the uploader of the video, the Court reiterated that the contents of the book were not the subject matter of the present suit. Insofar as the ‘publisher/author of the Book was concerned, the Plaintiff had already availed of its legal remedies against them in the detailed judgment Swami Ramdev v. Juggernaut Books Pvt. Ltd. and Ors., (India) CM (M) 556/ 2018 [para. 24]. In relation to non-impleadment of the uploaders of infringing content, the Court held that the basic subscriber information filed by the Defendant platforms merely disclosed certain cryptic details pertaining to the account IDs along with IP addresses, without any particulars of the said users. Thus, ‘at the time when the suit was filed, the Plaintiffs had no way of ascertaining the details of these persons’ [para. 25], but they could implead them at a later date if they are able to contact them. Relying upon the New South Wales decision in X v. Twitter Inc.,  NSWSC 1300, the Court held that the nature of internet is such that information could be uploaded without disclosing complete identity, therefore the Plaintiffs could justify the granting of a Norwich Pharmacal Order Order ((Norwich Pharmacal Order is a court order against an innocent third party seeking the disclosure of documents or information. The order was first granted by the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners  AC 133)) to allow for further investigation into the identities of the uploaders. [Para. 25]
Issue 2: Whether the uploaded content was defamatory?
The next issue under consideration was in relation to the defamatory nature of the content in the videos. The Court said that ‘a perusal of the video transcript and the offending portion of the book show’ [para. 33] that all the information in the video had been depicted solely as a summary of the book and there was no denial of this fact by the Defendants. The Court observed that the video acknowledged that the contents of the video’s discussion were solely derived from the book and consciously recorded that the book has been banned in India since August 11, 2017. Citing the judgment Swami Ramdev v. Juggernaut Books Pvt. Ltd. and Ors., (India) CM (M) 556/ 2018, which found that sections of the book were defamatory after striking a balance between Article 21 (Right to Life and Personal Liberty) and Article 19(1)(a) (Freedom of Speech and Expression) of the Indian Constitution, the Court concluded that the contents of the video must also be declared defamatory.
Issue 3: Whether the Defendants are intermediaries and if so, what should be the form of injunction order that may be passed?
The most crucial issue for consideration before the Court was the nature of the intermediaries and the form of injunction to be issued.
The Defendants pleaded that they were protected as intermediaries under Section 79 of the Act read with the 2011 Rules. The Defendants contended that they had no role in initiating transmission, selecting the receiver of any transmission, or selecting or modifying the information contained in the transmissions. The user-generated content was uploaded on the Defendant platforms in an ‘as-is’ basis. Facebook contended that it was not obliged to pro-actively monitor posts in order to block offending posts. In terms of the decision in Shreya Singhal v. Union of India, the Defendants were only required to act upon a ‘valid court order or request from an authorized government agency’ [para. 35]. The Defendants had already taken action in respect of the impugned URLs and had agreed to block access to the content in India. However, the Plaintiff’s request for global blocking could not be adhered to, as it would result in a conflict of laws situation. The Defendants unanimously submitted that a global injunction may not be in consonance with the laws of other jurisdictions. It was further submitted that a global injunction order would expose the Defendants to liability for censoring content in various countries, contrary to free speech standards and may also expose the platforms to legal proceedings giving rise to ‘libel tourism’ and ‘forum shopping’. In view of this, the Defendants submitted that the Court ought to restrict the injunction order to geo-blocking of content in India. Twitter also submitted that no order in the form of a prospective injunction can be passed against unidentified future content as it did not have any policy in place to monitor, detect and remove content.
In response to the Defendants’ arguments that they were protected as intermediaries, under Section 79 of the Act, the Court held that Section 79(3)(b) had already been read down in Shreya Singhal to mean that in cases where intermediaries were served with blocking / take down orders from Court, such intermediaries were not required to render judgment independently as to whether the information should be blocked or not. Intermediaries are only required to take action once they have ‘actual knowledge’ of illegal content based upon a Court order asking it to ‘expeditiously remove or disable access.’ [Para. 73]
On the issue of extra-territoriality as envisaged in the Information Technology Act, 2000, the Court held that intermediaries have to remove or disable access to the material/information ‘residing in or connected to a computer resource,’ i.e. network [para. 76]. In fact, a reading of the terms ‘computer resource’ under Section 2(k) with Section 79(3)(b) of the Act requires that in instances where “information or data has been uploaded on a computer network, the platforms would be bound to remove it and disable it from that computer network completely.” [para. 78] The Court held that any other interpretation of the provisions would reduce the efficacy of the provision. The intermediaries are obliged to ‘disable access of all kinds’ [para. 83] including disabling access to viewers not only from India but also global viewers. Therefore, mere geo-blocking as suggested by the Defendants was not in consonance with Section 79 of the Act and would be against the purport and intent of the Supreme Court’s decision in Shreya Singhal. Thus, the Court held that a global blocking order was necessary as any content uploaded in India, would also be accessible to users and viewers across the globe. Further, the Information Technology Act is premised on long arm jurisdiction therefore, Indian courts had the power to pass global injunctions.
The Court’s decision in directing a global takedown order was based on an analysis of the global network of computer systems which ‘transmit content and disseminate information instantaneously across geographical boundaries’ [para. 48]. After a detailed analysis of judgments rendered by courts in USA (Playboy Enterprises, Inc v. Chuckleberry Publishing Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996), Australia (Macquarie Bank Limited & Anr. v. Berg  NSWSC 526., X. v. Twitter Inc.,  NSWSC 1300.), Canada (Google Inc. v. Equustek Solutions, Robert Angus and Clarma Enterprises Inc. 2017 SCC 34 (Supreme Court of Canada), the Court observed that worldwide, courts have passed global injunctions/blocking orders, restricting/ blocking access to offending /defamatory content, in situations where compliance with the court order cannot be guaranteed by limiting the applicability of the orders only within territorial jurisdiction. The Court rejected the Defendants’ reliance on the U.S Google LLC v Equustek Solutions Inc., (Equustek II) judgment, which found that Google did not have to comply with a Canadian Court’s order for a global injunction, on the ground that “ [t]he Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites…” and thus “threaten free speech on the global internet.” [para. 59]
Rather, the Court affirmed the Supreme Court of British Columbia, in Equustek Solutions Inc. v Jack 2018 BC SC 610 (Equustek III) which rejected Google’s request to set aside the injunction granted by a Canadian court as Canadian courts had ‘the ability to protect the integrity of their own process through orders directed against parties over whom the Canadian courts had personal jurisdiction’ [para. 60]. Similarly, the CJEU in Eva Glawischnig-Piesczek v. Facebook Ireland Limited Case C-18/18, while interpreting the EU Directive 2000/31 in a case pertaining to allegations of defamation, held that national courts of a member state could order blocking of access to the information on a worldwide basis. In a another ruling by the CJEU, Google v. CNIL C-507/17 (2019), the Court found that while the EU Directive did not require global de-referencing, it left it to national courts to balance the right to privacy and the personal data of the citizens against the right to freedom of information to determine whether the appropriate geographic scope of the restriction would extend only to country domain name extensions or broader. While noting that the issue was not settled in India, courts on earlier occasions had also directed removal of defamatory posts (Subodh Gupta v. Herdscene & Ors. CS(OS) 483/2019 (Delhi High Court) (September 18, 2019) and offending content (You Tube v. Geeta Shroff, FAO 93/2018 (Delhi High Court) (May 17, 2018) without any geographical limitation.
Thus, the Court held that once defamatory content was uploaded from India and was made available globally, access to such content (once ordered by a competent court) should be blocked/ disabled world-wide and not just restricted to India. The Court noted that the platforms not only have this capacity, they regularly employ it for content which violates their terms of service or community guidelines. In the words of the Court,”when disabling is done by the Platforms on their own, in terms of their policies, the same is global. So, there is no reason as to why court orders ought not to be global.” [para. 94] Court orders must be implemented fully and effectively, more so if their global application is not specifically limited by the statute. The Court, therefore, directed the Defendant platforms to take down, remove, or block all the videos/links which had been uploaded from IP addresses within India, on a global basis. For uploads made outside India, the Court directed the Defendants to ‘ensure that they use appropriate geo-blocking measures so that such content cannot be accessed within India’ [para. 94]. In addition to this, the Court allowed the Plaintiff to ‘notify the Defendant platforms in case any offending material was discovered by them in the future’ [para. 96 ] for takedown either from India or globally, depending on where the content was uploaded. If the defendant platforms wished to contest any future takedown requests, related to the impugned content and in compliance with the current order, they would have to approach the court. [Para. 95]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Though the Court aimed to strike a balance between the right to freedom of speech under Article 19(1) and the right to privacy, the proportionality and reasonableness of the global takedown order raises questions. The Court believes that a geo-blocking order alone would render the order meaningless since the defamatory content would still be accessible from computer networks globally. However, the issuance of global takedown orders by different countries would pose a major threat to free speech on the Internet since countries have different thresholds for the right to freedom of speech and its restrictions. From a practical perspective, the implementation of such an order in countries with liberal free speech jurisprudence would also be a major challenge. Global takedown orders should be an exception and not the norm as the latter would lead to diminishing freedom of speech, globally.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision, arising out of the single judge bench of the Delhi High Court, establishes a binding precedent for all lower courts throughout the National Capital Territory of Delhi. It has a persuasive precedent for all other courts. The present decision has been challenged before a larger bench of the Delhi High Court in Facebook, Inc. v Swami Ramdev & Ors., FAO (OS) 212/ 2019. Arguments in the appeal are partly heard and it is posted for further hearing later in January 2020.
The precedential value of the present judgment will depend on the outcome of the larger bench of the Court, once the appeal is adjudicated and accorded finality.
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