Full Text
HIGH COURT OF DELHI
SWAMI RAMDEV & ANR. …...Plaintiffs
Through: Mr. Darpan Wadhwa, Sr. Advocate with Mr. Simranjeet Singh, Mr. Rohan Ahuja, Ms. Sonali Dhir, Mr. Aadhar Nautiyal and Ms. Cauveri Birbal, Advocates (M: 9205109664).
Through: Mr. Parag P. Tripathi, Sr. Advocate with Ms. Richa Srivastava, Mr. Aditya Nayar, Ms. Mishika Bajpai &
Ms. Nayantara Narayan, Advocates, for D-1.
Mr. Arvind Nigam, Sr. Advocate with Mr. Mehtaab Singh, Mr. Prathishth Kaushal, Ms. Shruttima Ehersa & Ms. Sakshi Jhalani, Advocates for D-2&3
(M-8814048526)
Mr. Sanjeev Sindhwani, Sr. Advocate with Mr. Deepak Gogia & Mr. Jithin M. George, Advocates for D-5 (M-
9971766556)
JUDGMENT
1. The Plaintiffs – Swami Ramdev and Patanjali Ayurved Ltd. have filed the present suit against the Defendants- Facebook Inc., (Defendant No. 1) 2019:DHC:5490 Google Inc., (Defendant No. 2) YouTube LLC, (Defendant No. 3) Google Plus, (Defendant No. 4) Twitter International Company, (Defendant No. 5) and Ashok Kumar (`John Does‟), (Defendant No. 6) seeking a permanent and mandatory injunction, as also damages. For the sake of convenience, the Defendants and their various websites, social media platforms, URLs, weblinks etc., are collectively referred to as ―Platforms‖.
2. The allegation of the Plaintiffs is that various defamatory remarks and information including videos, based on a book titled ‗Godman to Tycoon – the Untold Story of Baba Ramdev‘ are being disseminated over the Defendants‟ platforms. The Plaintiffs submit that the defamatory content contained in the said book was subject matter of a judgment passed in CM (M) 556/2018, wherein a ld. Single Judge of this Court had restrained the publisher and author from publishing, distributing and selling the book without deleting the offending portions. The allegations contained in the videos, which have been uploaded on the Defendants‟ platforms are in fact the defamatory allegations contained in the book which have already been directed to be removed. The said judgment was challenged by the publisher before the Supreme Court and the same is pending. It is however submitted that there is no stay of the order/judgement.
3. The suit was listed on 21st January, 2019, on which date, notice was directed to be served on the Defendants. On 24th January, 2019, after hearing ld. Counsels for the parties, the following order was passed:
9. Mr. Wadhwa further submits that under the Information Technology (Intermediaries Guidelines) Rules, 2011 (`2011 Rules‘) it is not for the intermediaries to decide what is defamatory. They are to merely follow the law, including orders of the Court. They have to appoint a grievance officer to take care of the users‟ grievances. The Plaintiffs cannot be forced to avail of legal remedies in every country to ensure that content is taken down. That would be a very high order, inasmuch as it would make the remedy granted by this Court completely ineffective. Defendants’ submissions
10. On the other hand, it is submitted by Mr. Parag Tripathi, ld. Senior Counsel appearing for Facebook – Defendant No. 1, that no effort has been made by the Plaintiffs to implead the persons whose details have been provided in the BSI. He relies upon the judgments in Google Inc. v Equustek Solutions, Robert Angus and Clarma Enterprises Inc[1] (hereinafter, “Equustek-I”) and Google LLC v Equustek Solutions Inc., et al. (hereinafter, “Equustek-II”)2 and submits that the question as to what Google Inc. v Equustek Solutions, Robert Angus and Clarma Enterprises Inc 2017 SCC 34 (Supreme Court of Canada) Google LLC v Equustek Solutions Inc., et al, United States District Court, Northern District of California, San Jose Division, case No. 5:17-cv-04207-EJD, December 14, 2017 constitutes defamation differs from country to country. For example, in the U.K., the onus is upon the Defendants to show that the content is not defamatory. However, in the U.S., the onus on the Plaintiff in a defamation action is very high. Defamation laws differs from jurisdiction to jurisdiction, and therefore, passing of a global disabling order would be contrary to the principle of comity of Courts and would result in conflict of laws.
11. Mr. Tripathi further submits that the issues raised could have far reaching impact, and Section 79 of the Act is a work in progress. Dissemination of views on the internet is an essential ingredient of freedom of speech and expression and the integrity of national judicial systems has to be maintained. In fact, the injuncted book is itself available on various platforms internationally, which itself shows that the injunction has to be restricted to India alone. Plaintiff No.1, being a public figure, should be open to criticism. He submits that an injunction would not be liable to be granted inter alia on the following grounds: i) The main Defendants i.e. the persons who have uploaded the video have not been impleaded; ii) Though the Court has jurisdiction to pass a global injunction order, which is clear from a reading of Articles 244 and 246 of the Constitution, which provide for implicit long arm jurisdiction, the Court ought to be reluctant to pass a global blocking order; iii) In order to ensure that access is disabled, the platforms have resorted to geo-blocking which is more than sufficient to take care of the Plaintiffs‟ interests; iv) The Plaintiffs have not brought on record any evidence to show as to whether anyone has viewed the content globally; v) There are no extreme circumstances, that require a global injunction order to be passed; vi) The order to be passed by the Court has to be proportionate to the danger or harm that is alleged. There is greater harm in passing a global injunction order in such circumstances; vii) The publisher of the book has also not been impleaded in the present case and no effective order can be passed in the absence of the publisher; viii) The Defendants are intermediaries and cannot be compelled to run foul of the law in jurisdictions such as the U.S. where they are headquartered.
12. He further submits that a global ban on content ought to be the last resort of the Court. Such an order results in muzzling dissent. Reliance is placed on the Equustek litigation, wherein an order to remove content was passed by the Courts in Canada and when Google brought an action before a US District Court to prevent enforcement of the Canadian Court‟s order, the U.S. Court restricted the application of the Canadian court‟s order only to Canadian territory. Such judgments could severely undermine the dignity of Indian courts if global injunction orders are passed. He relies upon the judgment of the Supreme Court of New York County in Ajitabh Bachchan v India Publications 154 Misc. 2d 228 (N.Y. Misc 1992) decided on 13th April, 1992 to support this argument. Further reliance is placed on the judgment of the Supreme Court of New South Wales in Macquarie Bank Ltd. & Anr. v. Berg [1999] NSWSC 526. Reliance is also placed on the opinion of the Attorney General of the Court of Justice of the EU given in the case of Google Inc. v. CNIL Case C-507/17. Since public interest differs from one country to another, an Indian court‟s perception of public interest ought not to bind other jurisdictions. He further submits that the right of freedom of speech and expression in India ought to be at least as much as in the U.S., and the principles of territoriality ought to be applicable in these cases. A decision of the Sao Paulo State Court of Appeal, Brazil in Twitter Brasil Rede de Infromacao Ltda v. Tim Cellular S/A, Interlocutory Appeal No. 2055830-58.2016.8.26.0000 is relied upon in support of the principle of territoriality. Reliance is also placed on an article written by Marc P. Epstein published in the Fordham Law Review titled Comity Concerns Are No Joke: Recognition of Foreign Judgments Under Dormant Foreign Affairs Preemption[3] which severely criticized what was termed as “libel tourism.” Further reliance is also placed on a publication by Alex Mills titled “The Law Applicable to Cross-Border Defamation on Social Media: Whose law governs free speech in ‗Facebookistan[4] ‘ published in the Journal of Media Law, wherein the author raises the question as to whose laws govern free speech on social media platforms. It is argued that if orders can be passed by national Courts which would result in global removal of content, then law of free speech on internet would be reduced to the lowest common denominator.
13. Mr. Tripathi also cites the order of this Court dated 14th January, 2019 in Sasikala Pushpa v. Facebook & Ors. CS (OS) 510/2016 and order dated 25th April, 2019 passed by this Court in Patanjali Ayurved Ltd. v Facebook Inc. & Ors. CS (OS)449/2018. Marc P. Epstein, Comity Concerns Are No Joke: Recognition of Foreign Judgments Under Dormant Foreign Affairs Preemption, 82 Fordham Law Review 2317 (2014) Alex Mills, The Law Applicable to Cross-Border Defamation on Social Media: Whose law governs free speech in ‗Facebookistan‘, Journal of Media Law 7 (2015) 1-35
14. Mr. Arvind Nigam, ld. Senior Counsel appearing for Google Inc. and YouTube LLC takes the following preliminary objections: i) That the suit has been filed by a Power of Attorney – Mr. Gyandeep Sharma. Since an action for defamation is an action in personam, the Plaintiff ought to have personally verified and filed the plaint. ii) That the suit lacks cause of action as there is nothing offensive contained in the video. iii) That the plaint does not refer to the judgment of the ld. Single Judge in CM(M) 556/2018, which has only been placed before the Court during the course of arguments, and only the closure report of the CBI was relied on.
(iv) That the plaint relies upon four pages of URLs, however, there is no mention as to which is the one which is extracted in the Plaint.
(v) That none of the persons who have uploaded the video have been impleaded.
(vi) That there is no mention as to which is the offensive part in the video. It is the settled position that the specific words which are defamatory have to be pointed out, as held in the judgment of the Supreme Court in R. Rajagopal v. State of Tamil Nadu 1994 SCC (6)
632. Since the entire plaint is mere paraphrasing and is only alleging innuendo, the plaint ought to be rejected.
(vii) That the necessary party i.e. the uploader of the video having not been impleaded, the suit would be liable to be dismissed. He relies upon the judgments in ABC Laminart v AP Agencies, Salem (1989) 2 SCC 163 and Ramesh Hirachand Kundanmal v Municipal Corporation of Greater Bombay and Others (1992) 2 SCC 524 to argue that if a necessary party is not impleaded, the suit would be liable to be dismissed.
15. It is further submitted by Mr. Nigam that the order of ld. Single Judge in CM(M) 556/2018, which is in the public domain, itself contains the offending parts, and thus firstly, as Courts have to consider as to whether the content is vexatious or scandalous, the judicial record itself becomes defamatory. He relies on a judgment passed in the case of HPS Chawla v NPS Chawla and Ors. FAO (OS) No. 55/2005 (Decided on 22nd September, 2005) to submit that redaction was directed in the judicial order to ensure that offensive content is not made public. Since the Plaintiff is in public life and runs a business organization for crores worth of business, the Plaintiff ought to be open to criticism.
16. Insofar as the Act is concerned, it is submitted that under Section 1(2), it applies to only to the territory of India. Though under Section 75 it is clear that the Act applies to any offence or contravention committed outside of India if the same is committed through a computer, computer system or computer network located in India, the contraventions as contemplated under the Act are provided for in Sections 43, 43A, 66A, 66B, 66 66E and Section 66F. However, defamation is not covered in these provisions. Reliance is also placed on the decision in Playboy v. Chuckleberry 939 F. Supp. 1032 (S.D.N.Y. 1996) to argue that a U.S. court in the said case had held that there could not be an injunction by a U.S. Court against publication of a magazine titled „Playmen‟ in Italy. It is further argued that the grant of a global injunction at the interim stage is like decreeing the suit. Since the Plaintiff‟s reputation is restricted and localised in India, the Plaintiff is adequately protected by geo-blocking. If the uploader himself removes the offending material, then the removal takes effect globally.
17. Mr. Sanjeev Sindhwani, ld. Senior Counsel appearing for Twitter submits that the grant of a global injunction can have a regressive effect even on India. He relies upon Section 13 CPC to submit that India also prescribes various conditions to recognize judgments of foreign Courts. He further relies upon the Sections 3 and 4 of the IPC to argue that if there are extra territorial offences, an order of an Indian Court would not be enforceable abroad. The principles of comity of courts and comity of nations requires Courts to respect the territoriality of their jurisdiction. The contraventions under the Act cannot be dealt with by a Civil Court as they are criminal offences. The High Court of Justice in Northern Ireland, in George Galloway v. William Frederick Frazer & Ors. [2016] NIQB 7 has held that no global injunction can be granted. The Defendants have already complied with the orders on a pan-India basis and geo-blocking has been done. The Plaintiffs have not complained of any violations of the order that has already been passed, and under the provisions of Order VI Rule 4 CPC, pleadings are required to be specific and in the absence thereof, no injunction can be granted. The mere apprehension of use of VPN and proxy servers to access global websites cannot be sufficient to presume that the data is likely to be transmitted and accessed in India. In Suresh Jindal v. Rizosli Corriere Della Sera Prodzioni T.V. S.p.a. and Ors [1991] Suppl. (2) SCC 3, the Supreme Court, being conscious of the limitations, granted an injunction against dissemination only in India. In view of the fact that the global standard to protect free speech could be very low in various jurisdictions, Indian Courts, which have a higher standard for free speech, should not impose the said standards internationally. In Shreya Singhal (supra), it has been held by the Court that the injunction, if any, has to be in the narrowest terms. Rejoinder submissions by the Plaintiffs
18. In rejoinder submissions, Mr. Darpan Wadhwa, ld. Senior Counsel submits that the plaint is not lacking in material particulars. In various paragraphs, the manner in which the content uploaded in the video is defamatory has been set out. Specific reliance is placed on pages 31, 33, 38, 39 and 53 of the plaint. Reliance is also placed on the judgment of the ld. Single Judge, specifically, pages 91, 118, 119, 121, 178, 179 and 201 where the very same content, as contained in the video, has been dealt with as part of the book. It is further submitted by Mr. Wadhwa that the right of reputation is a Right under Article 21 of the Constitution. Thus, the Court has to balance the Plaintiff‟s rights enshrined in Article 21 as against the rights under Article 19, which are being claimed by the platforms
19. Insofar as the argument of mis-joinder and non-joinder is concerned, he submits that the BSI does not give any details except the IP addresses. Only in some cases, mobile numbers and e-mail addresses have been given. It is not clear if those individuals are even identifiable.
20. He relies upon the pleadings i.e. written statements filed by the platforms wherein the platforms are attempting to justify as to why global blocking orders ought not to be granted. He submits that the apprehensions of conflict of laws and violation of the principle of comity of courts are all theoretical. He relies upon the judgment in Equustek-I (supra), especially paragraphs 20 and 27, to argue that Google Inc. is subject to personal jurisdiction before this Court and hence any injunction order granted by the Court has to have full effect. Plaintiffs, citizens and individuals cannot be forced to go courts in each country to protect their reputation.
21. He submits that Section 79 of the Act is the exception to the rule that every publisher is liable. The platforms are publishers and since they intend to seek protection and safe harbour under Section 79 upon being served with a Court order, they have a duty to implement the same. Rule 3(2) of the Rules has to be part of the user agreement, and if any content is defamatory, the same has to be taken down. Intermediaries cannot be judges in their own cause and cannot attempt to police content on their own. Since they do not claim any responsibility at the stage of uploading, the removal of content has to be without hesitation. If they question the orders of the Court, they no longer remain neutral intermediaries and are liable as publishers. He distinguishes the judgment in Ajitabh Bachan (supra). He relies upon the judgment in Niemela (supra) to argue that global blocking was sought. He submits that on a VPN network, the video on global platforms is easily available in India. While the platforms are willing to protecting trademarks and copyrights on a global basis, they are refusing to protect a person‟s reputation. The platforms have not included defamation as part of their policies and hence where defamatory content is concerned, Court orders are required. While the platforms, based on their own policies, do remove content on a global basis, they refuse to do so on the basis of Court orders. The reason for such resistance by the platforms is because the advertising revenue of the platforms depends on the number of hits they get on the shared content. Controversial content gets more hits, and thus if the said content remains, the platforms earn greater revenues. He submits that the publication in the Journal of Media Law in fact states that intermediaries ought to stay out of judging and leave the same to the Courts. Analysis and findings
22. The following issues, which have been raised by the parties, are being decided at the prima facie stage:
1) Mis-joinder / non-joinder of parties;
2) Whether the content is defamatory;
3) Whether the Defendants are intermediaries and if so, what should be the form of injunction order that is to be passed?
1) Mis-joinder / non-joinder of parties
23. This objection has two dimensions. The first is the non-impleadment of the publisher and the author of the book. The second is the nonimpleadment of the persons disclosed in the BSI.
24. Insofar as the first objection is concerned, the book is not directly in issue in the present case, though the offending videos is claimed to be derived from the book. Insofar as the publisher / author of the book is concerned, the Plaintiffs have already availed of their legal remedies against them and a detailed judgment has already been passed by the ld. Single Judge in CM(M) 556/2018. The subject matter of the present suit is the offending video and other related content, which is derived from the book and has been uploaded on various links on the Defendants‟ platforms. The details of the said links have been annexed to the plaint and run into four pages.
25. Insofar as non-impleadment of the individuals who have uploaded these videos and other allegedly offending content is concerned, a perusal of the BSI which has been filed by the platforms shows that the information is in the form of account IDs along with IP addresses. Each of the platforms has disclosed the BSI-for example, the Twitter BSI runs into 145 pages, and shows details of from which IP address the user has logged in, and at what time date. There are no other details of the said user. In respect of some users, e-mail addresses have been given. However, no further details are available. The Plaintiffs having received these BSI details, would have to make detailed enquiries and investigations in order to identify the complete contact details of the individuals whose IP addresses or e-mail addresses, or in some cases, mobile numbers have been disclosed. The Plaintiffs may, after proper enquiries take proper steps to implead such uploaders as they deem appropriate, based on the BSI disclosed by the platforms. The suit is at the initial stage and it cannot be said that without impleadment of these subscribers, the suit is not maintainable. At the time when the suit was filed, the Plaintiffs had no way of ascertaining the details of these persons and even now, the subscriber information which the Court has glanced through, appears to be quite cryptic. This is owing to the nature of internet itself wherein users can upload information without disclosing their complete identities. In X Vs. Twitter Inc.,[5] the Supreme Court of New South Wales has held that such circumstances would in fact justify granting of a Norwich Pharmacal order directing discovery of further details. However, the same could be done at a later stage. Thus, the objection that due to non-joinder of these parties, the suit is not liable to be entertained is not tenable at this stage. At the time of framing of issues, the question of mis-joinder or nonjoinder can be considered by the Court. However, since these platforms are [2017] NSWSC 1300 being used for directly disseminating the impugned content, they are undoubtedly necessary and proper parties in the present suit. In Ramesh Hirachand Kundanmal v Municipal Corporation of Greater Bombay and Others (supra), the Supreme Court has laid down the law as to who necessary and proper parties are. This is a settled legal position, and does not require any repetition or reiteration, At the prima facie stage, this Court is of the opinion that the suit is not liable to be dismissed for non-joinder of the alleged uploaders of the information or the publishers / author of the book.
2) Whether the content is defamatory?
26. The status of the Plaintiffs is well known and has already been subject matter of the earlier litigation. A perusal of paragraph 18 of the plaint shows that the Plaintiff has transcribed one of the videos, which it finds to be offending, defamatory and malicious. The said video clearly claims to be a summary of the book – ‗Godman to Tycoon – The Untold Story of Baba Ramdev‘. The publishers of the book are mentioned. The video is also conscious of the fact that the book has been banned w.e.f. 11th August, 2017, which appears to be the date of one of the orders passed in the litigation between Plaintiff No.1 and the publisher. Interestingly, the video claims that the views in the video are of those of the author of the book and that the video channel itself has no relationship with the views expressed therein. Thereafter, the video proceeds to give a summary of the book. The relevant portion of the transcription is given below: “Hello Friends! Today I am going to tell you the summary of the book ―Godman to tycoon: The Untold Story of Baba Ramdev.‖ This book has been authored by Priyanka Pathak Narain who is a journalist and before publishing this book she used to cover spirituality and religion for a newspaper called The Mint. She got the inspiration for this book from her work there. Priyanka interviewed more than 52 people while researching this book, which included Acharya Balkrishna, who is the Managing Director of Patanjali and owns 94% of the company‘s shares. You might know that this book has been banned with effect from 11th August 2017 and so the book is not available anywhere. A District Court in Delhi heard a petition from Baba Ramdev‘s legal team and issued a notice to the book‘s publisher Juggernaut Books ordering them to immediately cease the publication of the book. Baba Ramdev undertook this action because he believes the book is defamatory to him. Before watching this video please understand that the views expressed in it are of the book‘s author and our channel has no relation with the said views. Come, let us understand the summary of the book. Baba Ramdev was born Ramakrishna Yadav in a village called Saiyad Alipur in the state of Haryana. His family was very poor and his father was a farmer…‖
27. The video does give a history of Plaintiff No. 1, as paraphrased from the book. There are various insinuations and allegations made against the Plaintiffs including the business of Plaintiff No.2. Various unverified allegations are also contained in the video. Allegations have also been made against the Plaintiffs in respect of monetary irregularities. There are insinuations that the Plaintiff is connected with the three deaths. The video concludes by saying: “So friends this was a summary of Baba Ramdev‘s biography ―Godman to Tycoon.‖ I will reiterate that our channel does not have any relation to the views expressed in the book and the contents of the video are entirely based on the research and views of the book‘s Author.‖ Thus, the ultimate credit is being given to the author of the book – who may or may not be connected with the preparation of the video and uploading of the same.
28. The contents of the video are not being repeated in this judgment, in order to ensure that the same is not further published, as rightly contented by Mr. Nigam. There is no doubt that reading of the transcript, or a viewing of the video clearly attempts to give an impression to the viewers that the Plaintiffs have been involved in various murders, financial irregularities, misuse of animal parts, etc. However, all this information, as per the video, has been derived not independently, but as a summary of the book itself. Thus, the judgment in CM (M) 556/2018 dated 29th September, 2018 clearly becomes relevant. A perusal of the said judgment shows that the ld. Single Judge, after considering the law of defamation, including the balance between the Article 21 and Article 19(1)(a) has concluded that the content of the book is not justified. The implicit allegations have been held to be prima facie untrue. The ld. Single Judge has arrived at the following findings: ―139. In the instant case the avowed contentions of the petitioner have been that as regards the publication in ―Chapter 16 Mystery 2: The Guru‘s Disappearance‖ in the BOOK to implicitly state that the petitioner was somehow involved or complicit in the disappearance of his Guru Shanker Dev Ji and that further he, the petitioner having used his influence with the Government was able to scuttle the investigation which was not handled in a fair and transparent manner, coupled with the factum that the said publication came to the knowledge of the petitioner on 29.07.2017 after the Special Judicial Magistrate (CBI)/ACJM(I) Dehradun vide order dated 13.02.2015 accepted the closure report filed by the CBI in this matter, which aspect was not adverted to by the author and thus in view of the order dated 13.02.2015 of the Special Judicial Magistrate (CBI)/ACJM(I) Dehradun in case No. 1428/14 vide which the closure report submitted by the CBI in relation to the missing report for Guru Shanker Devi Ji at PS Khankhan, Haridwar, which was registered on 16.07.2007 was closed, the publication in relation to this aspect in 2017 prima facie cannot be held to be justified. …
140. As regards ―Chapter 9 Mystery 1: The Ally‘s Murder‖ which relates to the death of Swami Yoganand, the key associate of the petitioner, it is contended by the petitioner that through the said chapter which reads to the effect … it has been insinuated against the petitioner that he had something to do with the murder of Swami Yogananda on account of a falling out between the petitioner and Swami Yogananda on account of a falling out between the petitioner and Swami Yogananda and the petitioner contends that it is been further represented as if the Investigating Officer had filed an extraordinary report by stating that the perpetrators were unknown and that the respondents had not clarified that such reports are called ―Untrace Reports‖ and are common place and that the same had been done with the sole intention of creating an aura of suspicion so as to defame the petitioner and that in the light of the ―Untraced Report‖ which has also been admitted by the author, it is contended on behalf of the petitioner that it is clear that there was no way for the respondents to prove that the allegations were true and accordingly no defence would succeed in relation to the same. Prima facie the factum that there was an ―Untrace Report‖ in existence, there exists no justification for creation of an aura of suspicion against the petitioner in relation to the murder of the Swami Yogananda rightly contended on behalf of the petitioner. 141…In this context, thus the contention of the petitioner seeking to contend that there were deliberate insinuations against him made by the author that he was not willing to get the post mortem conducted on the body of Rajeev Dixit to cover up a foul play, prima facie cannot be accepted.‖
29. It was held that the fact that Plaintiff No. 1 is a public figure could not ipso facto constitute a license to defame him. Insofar as the interlocutory injunction is concerned, the Court in paragraphs 180 concludes as under:
36. Google and YouTube have both filed a common written statement. It is averred that Google Plus i.e. Defendant No.4 is not a separate juristic entity, and is only a product which is owned and operated by Google LLC. The said Defendant thus deserves to be deleted. The two platforms claim that they are not publishers of the content, which has been created by a third party and uploaded on www.youtube.com. The said content is neither created nor controlled nor owned by the platforms and is accessed on the Internet on an ‗as is‘ basis. Google and YouTube claim that they have complied with the order dated 24th January, 2019 and disabled the web links / URLs to the extent they related to India. The said paragraph is relevant and is extracted herein below:
38. As per the basic terms and conditions of YouTube, a user has to contractually agree to the following three documents: i. YouTube‟s Terms of Service; ii. Google‟s Privacy Policy; iii. YouTube‟s Community Guidelines.
39. These are binding on every user, who gives various representations and warranties. Only the uploader has specific knowledge of the content of the video, and the platforms are mere intermediaries. Thus, no liability can be fastened upon them. YouTube claims that it provides for a “robust, easyto-use mechanism” on its website and any user can report a video for violation of his or her rights. In addition, a complaint form can also be filled, which is publicly accessible. Upon receipt of any complaint, the same is reviewed as per YouTube‟s policy and local law of every country, and the same is acted upon. It is submitted that since defamation is a subjective issue, and laws vary from each country, such issues are subject to the local laws of the country where alleged defamation is complained of. It avers that the Courts are the adjudicating authorities to decide whether the alleged content is defamatory. Since YouTube is a dynamic platform, where videos are uploaded every hour, no specific knowledge of the contents of videos can be attributed to YouTube.
40. As per Shreya Singhal (supra), a Court order has to be passed identifying the content as being defamatory, as a claim of defamation is especially hard to judge and only Courts of competent jurisdiction can take a decision on the same.
41. It is pleaded that the plaint does not disclose a cause of action as the ingredients required for a defamation action are not satisfied. It is further pleaded that the injunction sought is vague and broad, as an order is being sought in respect of “other active URLs/links which contain or purport to contain, the infringing or disparaging Video…”. Such an order would be contrary to Shreya Singhal (supra). Further, injunction is being sought “across the globe.” It is pleaded that an order in such terms is beyond the territorial jurisdiction of this Court. Since every Court has its own standards for freedom of speech and expression, the order of the Court cannot be enforced beyond Indian borders. Such an order would expose the Defendants to liability for censoring content in various countries, which would be contrary to free speech standards and may also expose the platforms to legal proceedings. It is averred that such order would lead to libel tourism and forum shopping.
42. It is submitted that active monitoring also cannot be directed. The injunction ought to be restricted to India, and only to the identified URLs. It is further stated that the platforms have complied with the order dated 24th January, 2019. The relevant extract from the written statement reads as under:
43. Twitter claims that it is a social media platform. Further, the description of the Twitter service is pleaded as under: “3. The present suit is not maintainable against the answering Defendant, which makes available the Twitter Service ( which includes enabling users to (a) create and share short messages up to 280 characters; and (b) sharing images and videos through a real-time global information network) to the users living outside the United States of America, including India through the social media platform at www.twitter.com. Being only a service provider, the answering Defendant does not control or participate in or select the content uploaded by its users on www.twitter.com, a social media platform. Further, the answering Defendant does not directly post any content on the said website. The answering Defendant, thus, qualifies as an ―intermediary‖ within the meaning of Section 2(1)(w) of the Information Technology Act, 2000 (the Act). In fact, it is an admitted position that the answering Defendant is an ―intermediary‖. Being an intermediary, the answering Defendant is exempted from any liability in relation to any third-party information or data made available or hosted by it in terms of Section 79 of the IT Act.‖
44. Twitter states that it complies with the 2011 Rules. It relies on the judgment in Shreya Singhal (supra) to argue that the only manner in which knowledge can be attributed to an intermediary is through a Court order. Twitter has no partisan role and is bound by the Act and the Rules framed thereunder. No order in the form of a prospective injunction can be passed against unidentified future content as Twitter does not have any policy to monitor, detect and remove content. Reliance is placed on the judgments in Myspace Inc. v Super Cassettes Industries Ltd. 2017 (69) PTC 1 (Del) and Kent RO Systems Ltd. & Ors. v Amit Kotak and Ors. 2017 (69) PTC 55I(Del.
45. With respect to the prayer for global injunction, it is pleaded that such an order would run contrary to the principles of state sovereignty in international law and the principle of international comity, since the laws relating to free speech and defamation are not co-extensive and differ from country to country. Any order for a global takedown or global blocking would interfere with the rights of the people over whom the Court has no jurisdiction. The local laws of every country cannot apply to the internet globally. National courts thus have to restrict their orders only to geoblocking of the content i.e. blocking of content only in the country where the content is in breach of local law, since what is illegal in one country need not be illegal in another. Analysis
46. On the basis of all the above pleadings of the platforms, it is clear that the platforms do not deny that they are disseminating the content. It is also not denied that they are bound by the provisions of Section 79 of the Act. Further, the Court had specifically directed the Defendants to throw some light on how geo-blocking is done and to keep a technical person present in Court to seek clarification on geo-blocking. None of the platforms have given a detailed explanation as to how geo-blocking is done. In fact, Defendants 2 and 3 sought exemption from having a technical person present in Court. Thus, the Court has no option but to adjudicate the issue of geo-blocking on the basis of the material available on record and the submissions made before the Court.
47. One of the platforms i.e. Facebook, has placed on record its response to the queries raised by the Court on 5th April, 2019. According to Facebook, it follows the Facebook Community Standards, which address various issues like bullying, harassment, hate speech, violence, etc. Facebook‟s categorical position is that if any content is violative of Facebook Community Standards, such content is not made available on its platform at all. The relevant part of the note by Facebook is extracted herein below: “ When intermediaries action content because the content violates their terms of service/policies is the content geo-blocked or globally blocked? Response: Facebook‘s ―Community Standards (annexed herein as DOCUMENT A hereto) outline what type of content is and is not allowed on Facebook. The Community Standards are in place to ensure a safe environment for all users globally. As such, the Community Standards apply around the world to all types of content. The Community Standards address globally relevant issues such as bullying, harassment, hate speech, credible violence, protection of minors, and spam. Thus, if content violates Facebook‘s Community Standards, Facebook considers that such content should not be available on its platform at all and therefore renders such content inaccessible for all users globally.
48. Insofar as Google, YouTube and Twitter are concerned, from the pleadings which have been filed on record, it is clear that the content is uploaded on their platforms by users. What is however not clear is as to how the content uploaded from a particular geographical location is immediately transmitted across the world without any geographical limitation. It is a matter of public knowledge, and is also clear from the various judgments which have been cited before the Court, that all these platforms maintain a global network of computer systems, which transmits the content, information and data on an almost instantaneous basis. Thus, any content uploaded from India, would be available, within a matter of seconds, across the globe and would be accessible to users or viewers across the globe. The same would only be disabled or blocked upon a Court order being received, subject to local laws of that particular jurisdiction.
49. Insofar as the global dissemination of information, content or data is concerned, there is no doubt that platforms disseminate the same by either copying the data on multiple servers, or providing access to the source of the data / information / content through a network of servers. This entire process could be even without human intervention. What is geo-blocking?
50. As per all the platforms, geo-blocking is a method by which the platforms ensure that any content is blocked from a particular jurisdiction. Facebook has given a brief description how geo-blocking is done. As per the note filed by Facebook, geo-blocking is done in the following manner: “With respect to the Facebook platform, content is geoblocked in the following manner: (i)To determine where an individual is located, Facebook relies on a number of data points and signals, including: a. An individual‘s internet protocol (―IP‖) address at the time they are accessing the Facebook service; b. Information a user specifically shares with Facebook, including a Facebook user‘s self-reported location; and/or c. Location information if a user has consented to GPS/location tracking services on his/her smartphone settings- this means of determining location is common among Internet platforms.
(ii) Using such data points, Facebook geo-blocks content based on an individual‘s location.‖ Along with their written submissions Google and Twitter have also submitted a note on geo-blocking. No oral submissions were made in respect thereof.
51. Defendants No. 2 and 3- Google and YouTube, state that their Terms of Service and Community Guidelines, which are binding on users are aimed at “striking a proper balance between enabling free expressions and maintaining a responsible and safe community of users.” It is stated that the Policies are developed on the basis of internationally accepted norms that are not known to deviate across various jurisdictions. Content that is reported to Google and found to violate the Policies is removed from the platform as it goes against the “principle on which the Platform is founded.” Such removal is stated to be global in nature.
52. Defendant No. 5-Twitter‟s note on geo-blocking states that when an order is passed by a court of a particular country to block any content, Twitter disables the access to the reported content for all such Twitter users whose user settings indicate the name of the country of which they are residents as the country in which the content is to be blocked. It further states that Twitter automatically determines the location of a particular user at the time of creation of his/her Twitter account on the basis of the IP address through which the user logs in and reflects the same in the accounts settings of the user‟s profile. By way of example, it is stated that if an Indian court was to direct blocking of a particular tweet, Twitter would disable the access to such tweet for all account holders whose account settings indicate that their place of residence is India. However, if content is found to violate Twitter‟s terms of service, it is taken down globally.
53. From the above discussion, in non-technical terms, `geo-blocking’ appears to be a short form for `geographical blocking’ i.e. blocking of content from country to country or from one region to another. If the content is geo-blocked, the same would still be available on the other global platforms but not on the platforms of the country where geo-blocking has been carried out. Thus, geo-blocking is partial blocking of content, information and data, restricted by territory. The question as to whether geoblocking is justified and sufficient under Section 79 of the Act, is the question that arises for determination. International Legal position on Geo-blocking/Global Injunctions
54. A review of the case law on the question of geo-blocking and global injunctions in the context of internet platforms shows that the same has been a raging debate across jurisdictions. While some courts have taken the view that granting of global injunctions is not appropriate, other courts and forums including in recent decisions, have taken a view that if the circumstances warrant, global injunctions ought to be granted. Issues relating to comity of courts, conflict of laws etc. have been raised even in these proceedings.
55. One of the earliest cases cited by the Defendants is Playboy Enterprises, Inc v. Chuckleberry Publishing Inc. (supra) which involved an internet site publishing a “male sophisticate” magazine under the name “Playmen” operating from Italy. The magazine had commenced publication in 1967 in the print form, and in 1996 it had expanded to an internet site. The U.S. District Court for the Southern District of New York, in 1981 had directed Tattilo Editrice S.P.A, the Italian publisher to either shut down its internet site completely and or refrain from accepting any new subscriptions from customers residing in the U.S. It further directed payment of all the gross profits earned from customers residing in the U.S. to the Plaintiff. The injunction, which was granted on 26th June 1981 was pressed by the Plaintiff, and a contempt petition was filed against Tattilo. The Court held that Tattilo had violated the injunction order and accordingly sanctioned the company for civil contempt, directing the website to either shut its internet site completely, or prohibit US users form accessing the site. In the contempt proceedings, the Tattilo had challenged the jurisdiction of the US Court, however the court held that it had the jurisdiction to enforce the 1981 injunction. The relevant observation in respect of extraterritorial jurisdiction is as under: ―Tattilo may of course maintain its Italian Internet site. The Internet is a world-wide phenomenon, accessible from every corner of the globe. Tattilo cannot be prohibited from operating its Internet site merely because the site is accessible from within one country in which its product is banned. To hold otherwise ―would be tantamount to a declaration that this Court, and every other court throughout the world, may assert jurisdiction over all information providers on the global World Wide Web. Such a holding would have a devastating impact on those who use this global service. The Internet deserves special protection as a place where public discourse may be conducted without regard to nationality, religion, sex, or to monitors of community standards of decency. See generally American Civil Liberties Union v. Reno, 929
Vide the operative portion of the injunction however, the Court directed Tattilo either to: ―(1) either shut down its Internet site completely or refrain from accepting any new subscriptions from customers residing in the United States;‖ In this case, however, what deserves to be noted is the fact that the Defendant was actually an Italian company doing business in Italy, and it had been publishing the magazine for more than 3 decades. Moreover, the magazine was being operated from Italy and the court injuncted the magazine from permitting acceptance of subscriptions from the United States
56. In the case of Macquarie Bank Limited & Anr. vs. Berg (supra), the New South Wales Supreme Court was seized with an action for defamation. The Defendant was an ex-employee of the Plaintiff bank. He started publishing defamatory content on websites from outside New Zealand, it was reasonably understood that the Defendant was doing so from the United States. Thus, there was a serious issue of jurisdiction. In this case, the court held that the injunction sought for disabling access ought not to be granted. Prima facie the Court found that the publication could not be called scurrilous. In respect of the question as to whether the Defendant could be restrained from publishing anywhere in the world via the internet, the Court observed as under: ―14…Such an injunction is not designed to superimpose the law of NSW relating to defamation on every other state, territory and country of the world. Yet that would be the effect of an order restraining publication on the Internet. It is not to be assumed that the law of defamation in other countries is coextensive with that of NSW, and indeed, one knows that it is not. It may very well be that, according to the law of the Bahamas, Tazhakistan, or Mongolia, the defendant has an unfettered right to public the material. To make an order interfering with such a right would exceed that proper limits of the use of the injunctive power of this court.
15. For this reason alone, I would refuse the order sought.‖ It can be noticed that in the above judgment, the Defendant was not a resident of New Zealand. The uploading had not taken from New Zealand and the court also found that while the language was strong, the content could not be termed as “scurrilous.” The relevant portion from the judgment is extracted hereinbelow:
68. Thus, the opinion of the Court was that the national Court of each member state in the EU would have to adjudicate the right to privacy and the personal data of the citizens on the one hand and the right to freedom of information on the other and while weighing the two, the Court would have to direct as to whether the search engine has to de-reference only specific country domain name extensions or all versions of the search engine. In effect, therefore, the language of the provisions of the EU directive and regulations was interpreted by the Court to hold that the language as it exists does not require a global de-referencing.
69. More recently i.e. on 3rd October, 2019 the CJEU Eva Glawischnig- Piesczek v. Facebook Ireland Limited[6], has ruled on the interpretation of EU Directive 2000/31 in the context of the Plaintiff‟s plea that statements harmful to her reputation appeared on the social network of Facebook, which she sought removal of. In the said context, the Court holds that national courts of a member state can order blocking of access to the information on a worldwide basis. The court‟s conclusions are as under: ―53 In the light of all the foregoing, the answer to the first and second questions is that Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from: – ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; Case C-18/18 which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, or covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.‖
70. The position in India, insofar geo-blocking and global injunctions is concerned, is not fully settled. In You Tube v. Geeta Shroff FAO 93/2018 (Decided on 17th May, 2018), a ld. Single Judge of this Court was dealing with an offensive post, which was only removed from the India domain and not from global platforms. In this context, the Court considered the Equustek litigation as also the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 2010 of the USA. The Court thereafter, observed as under: ―The Court would note that it was never the case of Google that the contents of the offending post had been uploaded from a place outside India. It held that the contents have been uploaded from India, hence they were ordered to be removed from the internet so as to restore the position as it was prior to the uploading of the contents. The impugned order went on to hold that the contents which were uploaded from India, if transposted outside the jurisdiction of the country, cannot be said to be beyond the jurisdiction of India, and it could well be blocked or removed following the path by which it was uploaded. The Court is of the view that in the first instance, the injunction order dated 04.06.2015, which has not been challenged, has attained finality. It holds that on the basis of the pleadings and/or lack of denial from Google that the offending post had been uploaded from India, Google was required to remove it so as to restore status quo ante.‖ In fact, the Court observed that even if the post was uploaded from outside India, the same ought to have been disclosed to the Court at the initial stage and not after the interim order had attained finality. Thus, the appeal of Google was dismissed as withdrawn. The said order dated 17th May, 2018 was challenged before the Supreme Court in SLP 24089/2018, which was dismissed as withdrawn on 26th October, 2018. Thus, in You Tube v. Geeta Shroff (supra), Google was directed to globally block the offending content.
71. Recently, in Subodh Gupta v. Herdscene & Ors. CS(OS) 483/2019 Order dated 18th September, 2019, in the context of defamatory content, a ld. Single Bench has directed removal of all the defamatory posts pertaining to the Plaintiff, without any geographical limitation. Interpretation of the provisions of the Act
72. The main provision relied upon by all the platforms is Section 79 of the Act. The said provision has been interpreted in various judgments including the Supreme Court judgment in Shreya Singhal (supra). In Shreya Singhal, the Supreme Court was concerned with the question as to whether Section 79 and other provisions i.e. Sections 66A and 69A were Constitutionally valid. The Court, while balancing the rights of citizens under Article 19(1)(a) with the provisions of the IT Act deals with the chilling effect which could result if the provisions of the same are interpreted broadly. On the question of chilling effect, the court observes as under: “Chilling Effect And Overbreadth
87. Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by ―liberal views‖—such as the emancipation of women or the abolition of the caste system or whether certain members of a non-proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66-A. In point of fact, Section 66-A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.‖
73. The Court further holds that if a statute is invalid, the fact that it could be administered in a reasonable manner cannot save it. After applying the doctrine of severability, the Court holds that Section 66A is severable and the provision as a whole was held to be unconstitutional. However, insofar as Section 79 is concerned, the Court examined the provisions of Section 79 along with the due diligence provisions required under the Rules. After considering the said two provisions, the Court held as under: ―121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed—one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules.
122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).‖ From the above decision of the Supreme Court, it is clear that the intermediary need not apply its own mind as to whether the information should be blocked or not. However, the actual knowledge that can be attributed to an intermediary is only by a Court order asking it to “expeditiously remove or disable access”. Thus, Section 79(3)(b) was read down by the Supreme Court in the manner as extracted herein above.
74. The question that has arisen in the present case is what would constitute removal or disabling access within the meaning of Section 79. Can removal or disabling access be geographically limited or should it be global?
75. All the platforms have unanimously agreed in their pleadings that they have already blocked or disabled access to the URLs specified by the Plaintiffs insofar as the India domain is concerned. The question is whether the platforms can be directed to block the content on a global basis, or would the jurisdiction of Indian courts only extend to directing blocking in the country domain. In order to appreciate this argument raised by the platforms, the provisions of the Act, read with the Rules are relevant. The same are extracted below: The Information Technology Act, 2000 Section 2(j) ―computer network means the interconnection of one or more computers through—
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;‖ Section 2(k) "computer resource" means computer, computer system, computer network, data, computer data base or software; Section 2(l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions; Section 2(w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;” Section 79
77. From which locations is the removal or disabling to take place? The answer to this is again in Section 79(3)(b). The removal or disablement to the offending material has to take place “on that resource”. What constitutes “that resource”? It is a computer resource in which the “information, data or communication link” is “residing in” or is “connected to”.
78. Computer resource is defined as a computer, a computer system or a computer network. It is not merely a single computer. It encompasses within itself a computer network, which would include a maze or a network of computers. Such a computer network could be a global computer network. Thus, a proper reading of Section 79(3)(b) would mean that if any information, data is residing in or connected to a computer network, i.e. a computer resource, the intermediary has to remove or disable access to the said information or data on that resource. The use of the words “that material” and “that resource” shows that the same is intricately connected to the initial part of the provision which deals with “any information, data or communication link” and “a computer resource.” Thus, if any information or data has been uploaded or is residing in a computer resource i.e. a computer network, the information or data which has to be removed or disabled from that very computer resource or network. The computer resource in the initial part of the Section is the same computer resource as used in the later part of the Section. The latter resource cannot be a sub-set or a species of the former. It has to be the entire computer resource which was initially connected when the uploading of the information or data took place. Thus, if an 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. Any other interpretation of Section 79(3)(b) would not give proper meaning to the use of the words “that material” and “that resource”.
79. Thus, the removal and disablement is intricately connected to the information that is uploaded and the system upon which it is uploaded, where it resides.
80. There is no doubt that when the uploading of information or data takes place by a user upon any computer resource of these platforms, the same is made available on a global basis by the platforms.
81. The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.
82. Thus, if uploading of data which the Court considers defamatory or offensive has taken place from IP addresses located in India, then Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material, from the computer network of these platforms on to which the said information and data has been replicated. The material/information having originated from India, courts in India would have jurisdiction to direct removal of the same. After uploading of the data or information if the same has been replicated or disseminated or stored in different servers/computers in different geographical locations, the same would not mean that Courts would lose jurisdiction on the same, as the data/material/information was uploaded from India, in the first place. So long as the uploading from India led to the data or information ‗residing in‘ the network or being ‗connected to‘ the network, the same ought to be disabled or blocked globally. Any other interpretation of Section 79 would result in reducing the efficacy of the provision which equates the computer resource which initially created the information and the resource from where it is to be disabled or removed.
83. The term “access” is defined extremely broadly under Section 2(a) and means “gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.‖ Thus, by geo-blocking and disabling access to viewers from India with the offending material continuing to reside in global platforms which users can gain entry into, access would not be fully disabled. There is an obligation upon the intermediary to disable access, which would have to be read as meaning to completely disable access and not partially disable access. Further, expeditiously remove or disable access casts not just a negative obligation, but a positive obligation on the platforms to remove the offending content from that computer resource in a manner so as to ensure that access is fully disabled.
84. Removal or disabling of access under Section 79(3)(b) of information or data uploaded from India is not restricted as meaning removal or disabling or access only to users located in India. The removal or disabling is linked with “that resource” and not with the location of the user or viewer. Thus, geo-blocking as is being suggested by the platforms would not be in consonance with Section 79 or with the purport and intent of the Supreme Court in the judgment of Shreya Singhal (supra).
85. The question then arises as to what should be the exact order of injunction that is to be passed in the present case. As observed earlier, all the Defendant platforms have agreed to disable the access to the URLs in the India domain thus, they do not have an objection if the injunction is restricted to the India domain by availing of geo-blocking. They only object to the injunction being extended on a global basis.
86. Insofar as the argument that the Act only applies to the territory of India is concerned, a perusal of Section 75 of the Act shows that the IT Act does have extra territorial application to 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.
87. The capacity of these platforms to disable or block access is not really in doubt, inasmuch as any content or data or information which is violative of the platforms‟ own policies is always blocked or removed on a global basis. This is admitted by all the platforms in the submissions made before the Court, as also the written statements and written submissions that have been filed before this Court. A perusal of YouTube‟s Community Guidelines shows that the platform asks users to refrain from posting content with nudity/sexual content, “harmful or dangerous content”, which is described as videos that “encourage others to do things that might cause them to get badly hurt‖, hate speech, violent or graphic content, harassment and cyberbullying, spam, threats and content that violates copyrights. The YouTube Terms of Service further state as under: “YouTube reserves the right to decide whether Content violates these terms of service for reasons other than copyright, such as, but not limited to, pornography, obscenity, or excessive length. YouTube, may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user‘s account for submitting such material in violation of these Terms of Service.‖ Twitter‟s Terms of Service state that all content is the sole responsibility of the uploader, and that Twitter may not monitor or control the content posted via its services, and cannot take responsibility for it. However, it states that it reserves the right to remove content that violates the User Agreement, including copyright/trademark violations, impersonation, unlawful conduct or harassment. Facebook‟s Community Standards forbid “credible statements of intent to commit violence”, content from “dangerous organizations and individuals”, promoting/publicising crime, calling or advocating physical and/or other harm, content related to “regulated goods” such as drugs, firearms etc, content that encourages suicide or self-injury, content with child nudity/sexual exploitation of children, hate speech, violence and graphic content, sexual solicitation, “cruel and insensitive” content, spam, false news and content violating intellectual property. Thus, the policies of these platforms permit them to block and disable access in terms thereof. It is not disputed that blocking and disabling access when the platforms do it voluntarily is on a global basis.
88. The Defendants have relied upon the judgment in Suresh Jindal (supra) to argue that the Court ought not to grant an injunction against exhibition in foreign countries. On the basis of this judgment, it is argued that the injunction should be restricted only to a medium available in India. In this judgment, the Supreme Court has observed as under: ―7. We have pondered on the nature of the relief that should be given to the petitioner. As we have already said, there is no doubt in our minds that, whether there was a concluded contract as claimed by the appellant or not, the appellant did play some part in making the film possible and that the respondents are acting unreasonably in denying him the benefit of the limited acknowledgment he is entitled to have. In view of respondent's disinclination to extend even this courtesy to the appellant, we were initially inclined to issue directions to the respondents to effect necessary changes in the title shots and introduce an acknowledgment of the appellant's services in appropriate language before distributing or exhibiting the film and its copies. We have no doubt that the grant of such a direction would be absolutely within the scope of suit and would mete out proper justice to the appellant. On second thoughts, however, we refrain from doing this. We learn that, though the picture was shot in India, it is being exhibited only in foreign countries. Even if we give a direction as proposed, it might be difficult for this Court to ensure that the respondents carry out these directions. Even the appellant would not be in a position to ensure that such directions are complied with. It is well known that a court will not issue directions over the compliance of which it has no control. In view of this we think that we should not issue such general directions as indicated above. We, therefore, restrict the scope of the interim relief and direct, in the interests of justice, that in case the film is proposed to be, or is exhibited either on the T.V. or in any other medium in India, it shall not be so exhibited by the respondent or their agents unless it carries, in its title shots, an acknowledgment of the services rendered by the appellant to the producers in some appropriate language. We direct accordingly.‖ A perusal of this paragraph shows that the Supreme Court clearly holds that the grant of an injunction which would have a global effect would be absolutely within the scope of the suit and meet out proper justice. However, the said relief was not granted by the Supreme Court “on second thoughts” as it would have been difficult to enforce such an injunction.
89. In Modi Entertainment Network and Another v. W.S.G. Cricket PTE Ltd (2003) 4 SCC 341, the Supreme Court clearly confirms the principles that even an anti-suit injunction can be granted which will have an impact in a foreign shore so long as the parties are subject to in personam jurisdiction. However, such a power should be exercised sparely and in exceptional circumstances as also for good and sufficient reasons and to prevent any injustice. Thus, both the judgments cited before the Court do not lay down a proposition that Indian Courts cannot give injunctions which have a global effect.
90. Applying these very principles to the present case, it is clear that any order passed by the Court has to be effective. The parties before this Court i.e. the platforms are sufficiently capable to enforce an order of global blocking. Further, it is not disputed that the platforms are subject to in personam jurisdiction of this Court. The argument of the platform is that owing to the disparity in the law of defamation in the different jurisdiction, such an order ought not to be passed. Final conclusions
91. 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.
92. This Court is of the opinion that any injunction order passed by the Court has to be effective. The removal and disablement has to be complete in respect of the cause over which this Court has jurisdiction. It cannot be limited or partial in nature, so as to render the order of this Court completely toothless. If geo-blocking alone is permitted in respect of the entire content, there cannot be any dispute that the offending information would still reside in the global platforms of the Defendants, and would be accessible from India, not only through VPN and other mechanisms, but also by accessing the international websites of these platforms. It is not unknown that the Canadian, European and American websites of Google, Facebook, You Tube and Twitter can be accessed in India through various technological means. This would thus result in partial disabling and partial removal.
93. Orders of Courts are meant to be implemented fully and effectively. While the Defendant - platforms are raising issues in respect of comity of Courts, conflict of laws and the right of freedom of speech and expression under Article 19(1)(a), what is to be borne in mind is also the rights of privacy, the right of reputation of a citizen, national security, national integrity, threats to sovereignty, etc. The balance is always hard to seek, however, Courts can only endeavour to strike the balance. Ld. counsels for the parties have rightly raised various concerns on both sides. This Court has to implement the statute in its letter and spirit.
94. The interpretation of Section 79 as discussed hereinabove, leads this Court to the conclusion that the disabling and blocking of access has to be from the computer resource, and such resource includes a computer network, i.e., the whole network and not a mere (geographically) limited network. It is not disputed that this resource or network is controlled by the Defendants. 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. All offending material which has therefore, been uploaded from within India on to the Defendants‟ computer resource or computer network would have to be disabled and blocked on a global basis. Since the unlawful act in case of content uploaded from India is committed from within India, a global injunction shall operate in respect of such content. In case of uploads which take place from outside India, the unlawful act would be the dissemination of such content in India, and thus in those cases the platforms may resort to geo-blocking.
95. Insofar as Google Plus is concerned, considering that it is only a product of Google, the said Defendant is deleted from the array of parties.
96. Under these circumstances, the following directions are issued to the platforms: i. The Defendants are directed to take down, remove block, restrict/ disable access, on a global basis, to all such videos/ weblinks/URLs in the list annexed to the plaint, which have been uploaded from I.P. addresses within India. ii. Insofar as the URLs/links in the list annexed to the Plaint which were uploaded from outside India are concerned, the defendants are directed to block access and disable them from being viewed in the Indian domain and ensure that users in India are unable to access the same. iii. Upon the Plaintiffs discovering that any further URLs contain defamatory/ offending content as discussed in the present order, the Plaintiffs shall notify the platforms, which shall then take down/ block access to the said URLs either on a global basis, or for the India domain, depending on from where the content has been uploaded in terms of (i) and (ii) above. iv. If the Defendant - platforms, upon receiving notice from the Plaintiffs are of the opinion that the material/ content is not defamatory or violative, they shall intimate the Plaintiffs and the Plaintiffs would seek their remedies in accordance with law.
97. I.A. 855/2019 is disposed of in the above terms. Needless to add, that the views expressed herein are prima facie in nature.
PRATHIBA M. SINGH, J. JUDGE OCTOBER 23, 2019 Rahul/dj