Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Contracts Expression
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The Delhi High Court affirmed a temporary injunction against YouTube, directing it to globally take down defamatory materials uploaded on its platform. The Respondent had approached the Court seeking removal of posts with the tagline “Indian Money Hungry Dr. Geeta Shroff Must Watch,” as well as disclosure of the identities of the posters. Before the District Court, the offensive post was regarded as defamatory and ordered to be taken down from YouTube’s website globally, pursuant to which the post was only removed from the Indian domain, citing YouTube’s technical ‘inability’ to remove the contents globally and on grounds of international comity. The High Court held a global takedown order was essential to protect the reputation of the respondent as the “malicious” content was still accessible to users of VPNs and those outside India. After considering YouTube’s arguments based on protections afforded under US Section 230 of the Communications Decency Act and the SPEECH Act, the High Court, dismissed YouTube’s appeal. The High Court further rejected YouTube’s fresh claim that the post had in fact not been uploaded in India and therefore was outside of the order’s jurisdiction. YouTube’s appeal was dismissed as withdrawn, in order for it to seek alternate remedies.
The Respondent Geeta Shroff, a medical doctor by profession, while surfing the internet came across a post uploaded on YouTube with a tag line/ highlighted caption “Indian Money Hungry Dr. Geeta Shroff Must Watch”. The post was uploaded by the channel “Desh Ka Dushman” (literally translated in English to ‘Enemy of the Nation’), an anonymous entity whose exact particulars were unknown. There was no disclosure available on YouTube with respect to the identity of said entity/group.
Aggrieved by the impugned post, Shroff called upon the Appellants, YouTube LLC and Google Inc., through a written communication requesting them to disclose the identity/particulars of the entity/individual who uploaded the post as well as the caption/headline which described the Respondent as “Indian Money Hungry,” contesting that the post and caption were derogatory. The written communication was sent via an email dated January 15, 2015 as per the complaint mechanism/framework provided by YouTube on its website. YouTube rejected the complaint seeking removal of the post and the caption, and hence refused to remove/delete/block the said posting or the tagline and disregarded the Respondent’s claim that the said post had defamed, tarnished the image and harmed the reputation of the Respondent in the eyes of the general public.
In response to YouTube’s action, the Respondent filed an application before the District Court requesting a temporary injunction and an order directing YouTube, Inc. and Google Inc., (the US entities rather than the Indian subsidiaries) to delete/remove/hide the materials from YouTube channels. Before the District Court, YouTube contended that it did not have the ability to control the activities of its users beyond the ability to remove access to material posted on or stored in its systems in circumstances where the content violates the terms of service or is held to be a violation of law in any jurisdiction as determined by the competent courts of those jurisdictions. It also claimed that YouTube merely serves as an intermediary facilitating access to information and entertainment enhanced by the ability of users from across the globe to upload and view such videos at their discretion and control.
Further, YouTube claimed that it does not select or procure the videos/content that are uploaded on its website, nor does it perform proactive monitoring or any kind of editorial functions in relation to the content uploaded. The entry of the video on the website and its uploading is not selected, affected, controlled or determined by YouTube in any way and it may reactively remove a video only in cases of violation of the terms of service as well as its community guidelines. Since it was not in a position to adjudicate upon the veracity of the posting and could not, therefore, remove the said video postings from its website, YouTube requested the Respondent to contact the third-party anonymous uploader using YouTube’s ‘private’ messaging feature. The Appellant further submitted that if directed by the Court, it would remove the impugned video from its website.
By an order dated June 4, 2015, the New Delhi District Court found that a strong prima facie case was made against YouTube as the post was clearly defamatory, had “tarnished the image” of Shroff in the eyes of the “general public” and its continued presence online could result in an “irreparable loss” for the plaintiff. The Court stressed that “[r]eputation is the only jewel that can not be bought and is built over the years and a person who is robbed of it is no less than a destitute.” [p. 3] In light of the above, the Court ordered the defendants to immediately “delete/remove/hide” the post and the tagline. By an order dated January 18, 2018, the Additional District Judge affirmed the June 4 order and directed YouTube to comply with the same. Aggrieved, YouTube appealed at Delhi High Court.
Justice Najmi Waziri delivered the opinion of the Delhi High Court. The principal issue before the Court was whether the removal of the offensive defamatory post directed against the Respondent globally from YouTube’s websites was justified. Following the order by the Distrcit Court, the tagline had been removed but not the post, which YouTube argued was due to technological constraints. The request for a temporary injunction was made by the Respondent under Order XXXIX Rule 1 & 2, read with Section 151 of the Code of Civil Procedure, 1903 which prescribes circumstances under which temporary injunctions and interlocutory orders are granted by Indian courts
Notably, before the District Court, the Respondent had arraigned the parent US entities (YouTube LLC and Google Inc.), and not their Indian subsidiaries. On that basis, the Lower Court had concluded that the order dated June 4, 2015 was applicable worldwide against the US-based entities having control over the operations globally. YouTube had claimed that it was impossible to remove the data once uploaded as it had been transferred from India to other data centers internationally, and was hence inaccessible. India has no laws requiring consent before collecting user information, nor does it have data localization laws.
Recognizing that the position could have been different if the orders were passed against the Indian subsidiaries having no control over the operational management of the worldwide entity, the Additional District Judge nevertheless ordered YouTube to restore the status quo to identify the IP address on the basis that the content was uploaded from within the territory of India, thereby granting the Indian courts ability to direct removal of such content globally. The Lower Court reasoned that even in cases where the content uploaded from India was transposted outside the territory of India, it cannot be said to be ‘outside India’, and it was possible to block the content worldwide by following the same ‘path’ which was used to upload the content (placing on record the fact that the location/IP address is recorded while uploading the content on the website/network of the Appellants).
Before the High Court, YouTube contested that the Respondent’s case was liable to be dismissed as the order of the District Court was already fully complied with by YouTube for the territory of India, by disabling access to the post by any person having access to the internet from the territory of India. Consequently, the Indian courts were restricted by established principles of territoriality under international jurisprudence to enforce their orders globally as their direction was operative only up to the territorial limits of India. In either case, YouTube also claimed that they were constrained from complying with the directions of the Court on account of section 2 of the Securing of the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) and section 230 of the Communications Decency Act, which restricts US Courts from recognizing foreign judgments for defamation in violation of First Amendment principles. Section 2 protects the US entities from being sued in foreign jurisdictions with different standards of free speech protections, noting that “one country’s unduly restrictive libel law will effect freedom of expression worldwide on matters of valid public interest.” According to Section 230, US courts are under no obligation to comply with foreign judgments unless them conform with US laws.
Contrarily, it was claimed by the Respondent that the offensive post was still accessible from within the territory of India, albeit through virtual private networks (VPN). Further, vilification campaigns against her were still available on YouTube’s website outside India, maliciously lending to loss of her goodwill and reputation. As a result, a global takedown order was essential to protect her from such malicious vilification. To initiate proceedings against the perpetrator, the Respondent also requested, by way of a separate application, disclosure of the identities of the originator and perpetrator which should be available through the IP address once the data is restored to India.
Finally, YouTube also claimed that without a John Doe injunction order (an order against an unnamed entity accused of wrong doing) obtained from an American Court, it was not possible to procure information pertaining to the identities of the perpetrator, given that the offending post was not uploaded from India but it actually resolves [sic] with the US (p. 5). Since international comity was recognized under the Directive Principles of State Policy (Article 51 of the Indian Constitution), the Court was obliged to give effect to US law. The Appellant relied on the judgments in Twitter Brasil Reded Informacao Ltda. v. Tim Cellular S/A (2016) and Google Brasil Internet Ltda. v. Luiz Eduardo Auricchio Bottura et alius (2017) as well as the US District Court decision in Google LLC v. Equustek Inc. (2017) to argue against global injunctions which interfere with freedom of expression in other jurisdictions.
Without delving into the merits of the arguments of the Appellant, the High Court held that the order of the District Court directing the Appellant to block the content attained finality, and had to be complied with in light of the Limitation Act, 1963 which allows a challenge to the judgment within three years from the date of the decision. Consequently, since YouTube never claimed that the offending material was uploaded from outside India before the trial court, the appeal was a clear attempt to ‘overreach’ the orders of the Court, and was liable to be dismissed.
YouTube, however, sought to withdraw the appeal to pursue other remedies on the basis of “supervening, technological and technical reasons in removing the offensive post.” The Court dismissed the suits with costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment of the Delhi High Court contracts expression. Though the jurisprudence on global takedown orders in India is not settled and still evolving, the decisions of Indian courts so far have largely followed the common law ‘double actionability’ rule, originating first in the English case of Phillips v Eyre (1870) LR 6 QB 1. Through this case, the Court essentially conveyed two broad underlying principles:
These principles were subsequently affirmed in Ramdev v. Facebook (2019). Even though the present case was dismissed on grounds of limitation, the Court noted that any exercise of jurisdiction must be done ensuring that the Court gives due regard to the extraterritorial jurisdiction issues in the matter. The international jurisprudence on global takedown orders has been instrumental in establishing India’s position with respect to personal jurisdiction in cyber transactions, but it remains to be seen how concrete principles governing extraterritorial injunctions emerge in coming years.
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.
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