Global Take Down Orders — Swami Ramdev v. Facebook

Introduction – In October 2019, the Delhi High Court passed a rather contentious order in the case of Swami Ramdev v. Facebook, that gave Indian courts the power to issue global take down orders in respect of content posted online on intermediaries such as Google, Twitter, Facebook and YouTube to name a few. In this article, the author has closely analysed the reasoning adopted by the court to arrive at this conclusion and argued that this decision must be re-looked at. Judgements on similar questions of law delivered by courts of other jurisdictions have also been discussed to lend a proper perspective of the issue.

 

Background/Facts – The starting point of the entire matter was a book titled ‘Godman to Tycoon – the Untold Story of Baba Ramdev’ that was based upon the life of the plaintiff. Swami Ramdev had challenged the contents of the book on the grounds of defamation and had obtained a favourable decision from the Delhi High Court, finding certain parts of the book to be defamatory. The court had thus restrained the book from being published and sold unless the defamatory content was deleted. Thereafter, the plaintiff filed a separate suit seeking a global injunction against the defendant platforms, i.e., Facebook, Google, Twitter, YouTube, to stop them from publishing a defamatory video and related content that were based upon those parts of the book which had been held to be defamatory. The court had initially passed an interim order directing the defendants to geo-block access in the domestic boundaries of the country to all the offending URLs.

 

Arguments Advanced – The crux of the plaintiff’s argument was 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, if the Court issues a direction, the defendants would be bound to take down the impugned content not just in India, but globally. They put forth that once the defendants gain actual knowledge of the defamatory content on their platform, through the court order, they must comply with the take down orders. To assert this principle of actual knowledge, the landmark case of Shreya Singhal v Union of India was relied upon. In this case, it was held that the protection granted to an intermediary would cease to exist in the scenario where the intermediary does not remove the illegal content, even after gaining actual knowledge of the illegality.

Moreover, the plaintiff submitted before the court that a merely taking down the defamatory content from the Indian web-space would not be sufficient since there are enough ways to circumvent this, such as by using Virtual Private Networks (VPNs) and proxy servers. Therefore, simple geo-blocking by the defendants would not suffice since the content would still remain readily available for users to consume, which would damage the reputation of Swami Ramdev, a noted public figure.

Image Source - Software Freedom Law Centre

The defendants argued that a global take down 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”. This meant that if a global take down order is issued, then the actions of the defendant platforms would be questioned by other countries as the content being removed may not be considered as defamatory in the domestic laws of such other countries. They put forth that since geo-blocking had already been performed, it should be an adequate remedy as the plaintiff’s concerns over damage to reputation held ground mainly in India.

Further, it was put forth that the court could not act upon a “mere apprehension of use of VPN and proxy servers” to issue global take down orders. The case of Suresh Jindal v. Rizosli Corriere Della Sera Pradzioni T.V. S.p.a. was used to show the conclusive position of courts in India that national standards should not be imposed internationally through extraterritorial reach and that any restrictions should be kept as narrow as possible.

 

Decision – 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 had contended that they were protected as intermediaries under Section 79 of the IT Act, read with the 2011 Rules, since they had no role in initiating transmission or modifying the information contained in the transmissions. 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’. In response, the Court held that Section 79(3)(b) had already been read down in Shreya Singhal to mean that intermediaries are only required to take action once they have ‘actual knowledge’ of illegal content based upon a court order.

As far as the issue of extra-territoriality under the Information Technology Act, 2000 was concerned, the Court affirmed the long-arm jurisdiction of the Act and held that a global order was necessary as any content uploaded in India, would also be accessible to users worldwide. The court read the term ‘computer resource’ under Section 2(k) with Section 79(3)(b) of the Act to mean 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.”

The court relied upon several judgements delivered by courts across the globe, such as that of Playboy Enterprises, Inc v. Chuckleberry Publishing Inc., X. v. Twitter Inc. and Google Inc. v. Equustek Solutions to hold that since geo-blocking of content within the country would not suit the purpose of the order, a global injunction becomes necessary. The reasoning adopted by the court was that since the network of computer systems was global in nature and had the capability of transmitting content instantaneously across geographical boundaries, the take down orders must also be global.

 

Analysis – The court was of the opinion that a simple geo-blocking order would be rendered totally ineffective as not only would users from other countries still be able to access the defamatory content, but even users from India would be able to circumvent the blocking by way of proxy servers and VPNs. Hence, the requirement for a global injunction was felt to give complete effect to the order for removing the content. Moreover, the court held that since the act of uploading was done from a computer resource located in India, it is very much within the jurisdiction of the court to order the platforms to take it down from all networks on which it has been disseminated, even if it is located outside India. Section 75 of the IT Act, 2000 also provides for extra territorial application to offences or contraventions committed outside India, as long as the computer system used for such offence is located in India.

The court here adopted a flawed interpretation of Section 75(2) of the Information Technology Act, 2000 which warrants an extra-territorial application of the Act, if the computer network through which the offence took place was located in India. The court, however, interpreted the provision to mean an extra-territorial application to offences committed outside India. Further, the court also did not differentiate between the intermediary, being the platforms, and the third party who actually committed the act. Section 79 of the Act exempts all intermediaries from liability for any third-party information/data hosted by them, if the functions of such intermediary are only providing access to a communication system and do not extend to initiating the transmission, or modifying the information in the transmission.

Intermediaries such as the defendants in this case, i.e., Facebook, Google, YouTube, Twitter, are merely providing access to communication platforms and it is the third parties using these platforms who publish various information. Thus, the court has erred in interpreting the provisions of the IT Act in the facts of this case and has wrongly arrived at the view that the intermediaries would not be exempted under section 79 of the Act. Although the court attempted to justify a global take down on account of the fact that the use of VPN can allow users to access the defamatory content in spite of the geo-blocking, the author believes that such an order would not be a proportionate remedy as it would lead to a situation of conflict of laws.

 

Conclusion – The decision of the Delhi High Court has come under a lot of scrutiny for several factors. Most importantly, the judgement has been interpreted as a measure to impose the domestic law of India over other countries, as what may be considered as defamatory in India may not necessarily be so in courts of other jurisdictions. Therefore, the intent of the court to give effect to a global take-down rather than maintaining the geo-blocking is questionable as it would give rise to several conflicts and is also against the comity of nations. Further, the response of the court was not proportional as even it did not even try to ascertain the effectiveness of the geo-blocking which had already been in force for some time. A global take down would also be unrequited as concerns over damage to reputation of Swami Ramdev were confined primarily to India, as was also put forth by the defendants. It is for these reasons that the decision in Swami Ramdev v. Facebook requires a re-looking.

[September 2020]