Maria Binny Palamattom, Student, School of Law, Christ (Deemed to be University), Bangalore.
Brief Overview
The plaintiffs (Swami Ramdev & Patanjali Ayurveda Ltd.), filed the case before the Delhi High Court against the alleged defamatory content circulated via social media platforms such as Facebook Inc, Google Inc, You Tube LLC, Google Plus, Twitter International Company, by Ashok Kumar (‘John Does’) who are the defendants. The plaintiffs mainly focused on the existing interim order of the High Court that restrains the publishing of the book; Godman to Tycoon-The Untold Story of Baba Ramdev, authored by Priyanka Pathak Narain because it possessed defamatory remarks about the plaintiff (as per the ruling of the case, Swami Ramdev v. Jaggarnaut Books Pvt. Ltd. and Ors.[1]) Though an appeal was pending at the Supreme Court, a global prohibition was demanded on the content by the platforms. Contentions raised by the defendant parties were, however, in consonance with the act of prohibiting the content within India, however, not globally. The Court decided to geo-prohibit the content and asked the platforms to bring down the contents against Swami Ramdev and they received the authority to seek the platforms to bring down such defamatory contents in future as well. It was held that any disapproval from the part of the defendants shall deem the complainants to take the recourse of courts.
Background
The case revolves around the authority of Indian Courts to call for the prohibition of contents to circulated globally once declared illegal. The case also succeeded Shreya Singhal v. Union of India (2015) where aspects of online speech and intermediary liabilities in India were discussed. Also, the case of Google Inc. v. Equustek Solutions Inc. (2017) in Canada, ruled on the authority of the Supreme Court to issue injunctions against foreign companies related to the circulation of contents. Further, in the case of Google v. National Commission on Information and Liberty (2019), that focused on the territorial scope of the right to be forgotten under the current EU law by holding that it only applies within EU borders. Thus, the major question raised before the Court of Law was that whether platforms are obliged to take down the content as per the decision of a competent court, where the intermediaries are liable to remove such content from the websites and the requirement to bring down them locally and globally as well.
Judgment and Analysis
The case decided by Justice Prathiba M Singh dwells upon various facets of the courts in deciding over the authority to pull down the content that is circulated through versatile platforms once declared illegal by a competent court/judicial body. The judgment profoundly focused on Section 79(3) (b) of the IT Act[2], where the platforms are liable to take down any content immediately once declared unlawful in a computer resource inclusive of computer networks. Therefore, as per the decision, the defendant platforms or the computer resource under the purview of the section shall be forced to remove the content from being circulated through their website controlled by the intermediary. This is also under the consideration of the landmark Shreya Singhal Case[3] which though declared Section 66A of the Act invalid, had specified on the intermediary obligations.
The court also held that once the content in a platform locally is identified to be illegal by the competent authority or judicial body, then the same authority shall also have the authority to apply the same notion towards its circulation globally.[4] Further, the judgment is also justified in its adherence to Section 75 of the IT Act[5] which provides the jurisdiction to outside India as well i.e. the authority to pass injunctions or prohibitions in an extraterritorial jurisdiction. The defendant’s side in their arguments was completely willing to take back the content locally and not globally due to the limited feasibility for the same. However, the Court nullified this argument on pronouncing the application of VPN services such that the non-feasibility can be met and justified the action by the crux that if not applied globally the effect of the decision shall remain incomplete.
The judgment clearly stood against the geo-blocking or partial blocking of contents in one specific territory.[6]However, the possibilities of judicial confusions are left unaddressed. In the decision, notably, the origin of the content is prioritized, above several other factors.
The contentions and resistance of the platforms on the global takedown of the content irrespective of their consonance for its takedown from India specific takedowns and use of geo-blocking that refuses access are justifiable due to many reasons. First of all, there was a need to address the feasibility of the platforms on taking down contents globally irrespective of all the measures undertaken to proscribe defamatory remarks and the complexity of territorial jurisdiction6 which is mentioned as outside India. Second, the differences in standards applied on the freedom to speech or privacy those are applied in one nation to another. The same has to be applied in defamation laws as well with the identification of its versatile nature globally. The contents that are considered defamatory in India need not necessarily be defamatory in other nations.
In the case of India Abroad Publications Ltd.[7] The allegation of defamation was rejected due to its detrainment over the Right to free speech of citizens as per the Schedule 1 of the US Constitution. The court in its judgment, allowed the plaintiff to recourse the court if any further violation occurs from the part of the defendants[8]even after they inform the intermediaries directly. However, this part contradicts the landmark judgment of the Supreme Court in Shreya Singal’s case[9] where any action can only be undertaken against the content published by a platform after the instruction by a competent court/ Government directly and not on the demand of the affected party.[10] The reason behind the order in the latter case was in consideration of the difficulty non-feasibility of the intermediaries to undertake actions or legit and illegitimate demands of millions of users.[11] Here, the possibility of over censorship arises.
The arbitrariness in the jurisprudence of the authority of the courts in deciding over the global platforms further remain unsettled even after the judgment as the only foreign case reference with a similar nature was the Equustekk Case,[12] in which a global injunction was passed on Facebook was, however, set aside over the plea of Google on its action in the US due to the violation of free speech rights of citizens and its restricted application in Canada alone.
The major highlight of the judgment sought to receive criticisms was the finding which stated, since the content is uploaded globally and has duly received the title of being illegal, should be brought down globally and not locally (nationally) with the backup of the provision[13] of IT Act, 2000. However, the realization of the fact that internet and the inclusive platforms such as Facebook are meant to ensure the free flow of information across the Globe, threats of recalling data irrespective of the prevalent nationwide laws those are existent raises serious concerns over the free flow of information. The differences in identifying the internet as a social platform and thereby failing to acknowledge foreign laws while pronouncing injunctions globally can result in a refrained flow of information worldwide and curtails the freedom of speech beyond the reasonable restrictions.[14]
The major question of law that arises is the reduced priority provided to the Right to Free Speech through online platforms. So, in the logical analysis, the reality that taking down of contents globally can result in the violation of free of users worldwide and the platforms as well has not gotten eradicated. If all countries perceive their authority via the control of their respective judiciaries, then the content circulated each platform shall be subjected to the most stringent nations and their regulations.[15] Hence, the question of global free speech rights is raised due to the defamatory remarks made against an individual.
Another takeaway in the judgment on replacing geo-blocking with global takedown was the presence of VPN and Web-Proxy services[16]such that users will be able to access the data even if a geo-blocking is undertaken. Hence, the relief provided to the complainants shall be ineffective since the defamatory remarks shall continue to exist. Hence the court insisted on the global takedown since the content was uploaded from India and the same shall not be made compulsory and could be replaced with a geo-block if the content is uploaded outside India. This observation, however, is erroneous since the accessibility to the content via uploads and downloads cannot be removed even though a global takedown.
Comparative Analysis
The importance of comparative analysis arose in the realization that the judgment has lacked precision in observing the laws those are prevalent globally before the enforcement of a global takedown beyond the measures such as geo-blocking and national takedown as the defence argued. The provision in the Act[17] provides the authority to the court to take global injunctions for the uploading of information or data from the computer resources (inclusive of a computer network) within the nation. In addition to that, the provision provides extraterritorial jurisdiction for offences[18] and contravention[19] committed outside India. However, the irony is that these provisions, however, do not suffice the provisions of defamation.[20]
The European Union Court of Justice (CJEU) had taken a similar decision[21] on defamation regarding the need for a global takedown and thereby monitoring obligations of platforms over specific contents. The question of privacy and free speech arises with the issue of over monitoring the access as received by the Plaintiffs to approach the defendants directly for taking down data/content. Since the difference of perspectives of courts in different nations as depicted through decisions on the same concerns[22] in which region-specific restrictions are imposed rather than a global takedown.
The case of Google v. CNIL,[23] where the de-referencing of all versions of its search engine[24]where the court relied on the understanding that EU Law establishing and regulating the Right to be Forgotten/De-referencing, to be carried out in all member states, however, since the geographical scope of such orders are not specified the decisions of the respective courts/tribunals shall be final such that no civil rights are infringed. Hence, the versatile international criteria had to be considered.
The recognition of the act of defamation and bringing it under the ambit of the IT Act, 2000 was undertaken in the judgment after numerous references to international laws. However, the differences and the priority of civil rights lacked precision in the judgment. Judgments hence undergo several questions of Law due to the changing facets of the right to free speech online.[25] The need to scrutinize the content, which in this case was identified to be defamatory in nature and thereby declared to be taken down, plays a vital role at a position where Right to Privacy[26] and Right to Freedom of Speech and Expression has a due role to play.
Global takedown, being inclusive of countries like the United States and the United Kingdom, where the burden of proof lies on the complainant shall have a little role to play especially in cases of online defamation where internet and all other social media platforms are considered for global connectivity. Defamation in India has its roots to the English Common Law. In order to prove a defamatory remark, there has to be a statement made by the defendant (1) as false and defamatory (2) concerned the plaintiff (3) caused actual or actionable damages.
Therefore, unless the content in an online platform is proved defamatory by the fulfilment of the above criteria and is adhering to the community guidelines, they cannot be locally taken down or blocked and to the extreme be globally taken down under the English Law. Also, otherwise, the plaintiff has to be hurt before a substantial and respectable minority[27] to have proved to be defamed. Hence, similar substantial grounds have to be looked at in the Indian scenario as well.
Conclusion
This case one of the case laws in the list of several national and international case laws that exposed the existent lacunas in determining the authority of Indian courts in deciding over the content uploaded from India and outside India and thereby the lack of precision in determining the implications of global takedown over geo-blocking or local takedown. The judgment also raises concerns on why there has to be an analysis of international laws in adherence to aspects such as Right to Privacy and Free Speech such that the infringement of the same can possibly be eradicated when global injunctions are enforced.
The erroneous overlooking of the feasibility of VPN mechanisms raise a threat over the contents in internet platforms that are meant to be circulated worldwide and shall not be refrained from being effectively communicated. The confusions that continue to prevail in Section 75 of the Information Technology Act, 2000 seeks to undergo relevant amendments such that it doesn’t lead to further ambiguities and hence can precisely state the extra jurisdiction of Indian Courts. Moreover, the check over the feasibility of global takedown demands greater attention as the platforms with millions of users will plausibly find the judgment on the demands of the users in huge numbers and hence shall be in need of impartial Judicial Review. The case law also addresses the increasing concerns over the defamatory issues via social media platforms and hence, seeks for the need to address the defamatory issues in consonance to the free speech in online platforms to tackle the issues respectively.
[1]Swami Ramdev v. Juggernaut Books Pvt. Ltd. and Ors., (India) CM (M) 556/ 2018 (Delhi High Court, 29/9/2018). [2] S. 79 (3) (b), Information Technology Act, 2000. [3] Shreya Singhal v. Union of India, (2013), 12 SCC 73. [4] An Analysis of Swami Ramdev v. Facebook – The Existential Risk of Global Take Down Orders, SFLC, available at https://sflc.in/detailed-analysis-swami-ramdev-v-facebook-judgment, last seen on 15/08/2020. [5] S. 75, Information Technology Act, 2000. [6] Why Baba Ramdev’s win against Facebook, Google in Delhi HC only adds to judicial confusion, The Print, https://theprint.in/judiciary/why-baba-ramdevs-win-against-facebook-google-in-delhi-hc-only-adds-to-judicial-confusion/312403/, last seen on 15/08/2020. [7] Bachchan v. India Abroad Publications Inc., 154 Misc. 2d 228. [8] (1992, New York Supreme Court). [9] Shreya Singhal v. Union of India, (2013) 12 SCC 73. [10] Swami Ramdev & Anr. v. Facebook Inc. & Ors., 2019 SCC Online Del 10701. [11] Ibid. [12] Google Inc. v. Equustek Solutions Inc., (2017) SCC 34 (Supreme Court of Canada). [13] S. 79(3) (b), Information Technology Act, 2000. [14] Art. 19 (1) (a), the Constitution of India. [15] Supra 8. [16] What is the difference between a proxy and a VPN?,Varonis, available at https://www.varonis.com/blog/proxy-vs-vpn/#:~:text=But%20how%20they%20do%20that,(or%20circumventing)%20content%20restrictions.&text=VPN%20connections%20encrypt%20and%20secure,browser%20like%20a%20proxy%20server., last seen on 08/15/2020. [17] S. 75, Information Technology Act, 2000. [18] S. 65, 66, 67C, Information Technology Act, 2000. [19] S. 43 & S. 47 A, Information Technology Act, 2000. [20] S. 499, Indian Penal Code, 1860. [21] Eva Glawisching-Piesczk v. Facebook Ireland Ltd, C-18/18. (2019, Court of the Justice of the European Union). [22] Supra 11. [23] Google LLC v. National Commission on Information and Liberty (CNIL),Global Freedom of Expression, Colombia University, https://globalfreedomofexpression.columbia.edu/cases/google-llc-v-national-commission-on-informatics-and-liberty-cnil/, last seen on 15/08/2020. [24] Ibid. [25] M. Hadley, The Gertz Doctrine and Internet Defamation, Vol. 84,|Virginia Law Review| 477,477| (1998), available at https://www.jstor.org/stable/1073670?Search=yes&resultItemClick=true&searchText=defamation&searchText=through&searchText=internet&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Ddefamation%2Bthrough%2Binternet%2B%26amp%3Bfilter%3D&ab_segments=0%2Fbasic_SYC-5187_SYC-5188%2Ftest&refreqid=search%3A494e43c96a7586b2ddbe4c00466bb786&seq=1#metadata_info_tab_contents, last seen on 15/08/2020. [26] Justice K. S. Puttuswamy v. Union of India, (2017) 10 SCC 1. [27] Romaine v. Kallinger, 109 N.J. 282 (1988, New Jersey Supreme Court).