In a recent ruling, a single judge of the Delhi High Court (the “Delhi HC”) has held that a global injunction can be issued for removal of defamatory data, if the data has originally been uploaded from a computer resource in India. We have discussed the Delhi HC’s judgment in this update.
Background
The origin of this case is linked to a previous case. A biography of Swami Ramdev, a famous yoga guru, named, “Godman to Tycoon: The Untold Story of Baba Ramdev,” (the “Book”) was published. However, Swami Ramdev sued the author and the publisher of the Book alleging that many sections were defamatory. The Delhi HC upheld the allegations and ruled that the Book violated Swami Ramdev’s fundamental right to privacy. Therefore, the Delhi HC banned the publication, distribution and sale of the Book. The publisher appealed the Delhi HC’s order in the Supreme Court, and the matter is sub-judice.
A plethora of videos and other content based on the Book were uploaded on social media platforms such as YouTube, Facebook and Twitter (the “Platforms”). Swami Ramdev sued the Platforms and sought a global injunction against them from publishing content based on the Book, as also an order directing them to remove the infringing content from the internet, in line with the ruling of the Delhi HC.
Arguments and the law
The Platforms argued that:
- they were intermediaries and protected from liability under Section 79 of the India’s Information Technology Act, 2000 (the “IT Act”). (An “intermediary” is defined as any person who, on behalf of another person, receives, stores or transmits an electronic record or provides any service with respect to the electronic record, and includes, inter alia, internet service providers, web-hosting service providers and search engines);
- global blocking of the content uploaded on the Platforms would lead to a conflict of laws as a global injunction may not be in consonance with the laws of other jurisdictions; and
- Virtual Private Networks (VPNs) can be used to upload and access the data from India, despite a global injunction.
Accordingly, the Delhi HC should only pass an order of geo-blocking (i.e., blocking of content in a particular geographical area), but not a global injunction.
Now, Section 79 of the IT Act exempts intermediaries from liability for hosting any third party information, data or communication link on its communication system, provided that the intermediary: (i) does not initiate the transmission; (ii) does not select the receiver of the transmission; (iii) does not select or modify the information in the transmission; and (iv) observes due diligence while discharging its duties. However, there is no exemption from liability if, upon receiving actual knowledge or being notified by a governmental authority that the data is being used to commit an unlawful act, the intermediary fails to expeditiously remove or disable access to any information, data or communication link residing in or connected to a computer resource controlled by the intermediary. Rule 3(2) of the Information Technology (Intermediaries Guidelines) Rules, 2011, states that intermediaries are required to inform the users of a computer resource not to host, display, upload, modify, publish, transmit, update or share information that is, inter alia, grossly harmful, harassing or defamatory.
The Delhi HC’s order
According to the Delhi HC, with respect to data uploaded from India, the uploading of the defamatory content comprises an unlawful act, and with respect to data uploaded from outside India, the dissemination of the defamatory content in India comprises an unlawful act. Therefore, if an injunction is issued against an intermediary, under Section 79 of the IT Act, it must remove any data uploaded through a computer resource in India, as well as geo-block any data uploaded from outside India. Further, as a computer resource under the IT Act includes the entire computer network, it can only be interpreted to mean the entire global network of the intermediary and not just the computer network located in India. The resultant implication of this is that if content is uploaded from India and transmitted on the intermediary’s global network, an Indian court can issue an injunction directing the removal of the content globally. However, if the content is uploaded from outside India, the court does not have the power to do so under the IT Act.
On this basis, the Delhi HC has granted an injunction against the Platforms.
Our comments
At the outset, this judgment has far-reaching implications on the extra-territorial jurisdiction of Indian courts and conflict of law provisions. Prima facie, this judgment may be in conflict with the defamation laws of other jurisdictions, and the removal of data may result in a violation of the right to free speech in those jurisdictions, which is especially relevant as Swami Ramdev is a global figure.
The Delhi HC has not adequately addressed the issue of VPNs being used to upload and access the data from India despite a global injunction. Further, it is unclear whether global injunctions under the IT Act can be given in all instances or only as per the provisions of Rule 3(2) of the IT Intermediaries Rules. Apart from defamation, this provision also covers instances of infringement of intellectual property, violation of law, unauthorized use of information, harm to minors, misleading information, impersonation, software virus threats, and threats to the unity, integrity and security of India.
It is pertinent to note that in most cases of this nature around the world (including the recent judgment by the Court of Justice of the European Union in Google v. CNIL), geo-blocking has been the favoured option by courts. This is mainly because the parameters for what comprises free speech differ from jurisdiction to jurisdiction. However, in some cases (such as the judgment by the Court of Justice of the European Union in Eva Glawischnig-Piesczek v. Facebook Ireland Limited), courts have ruled in favour of a global injunction in order to protect the personal rights of the aggrieved person and given it precedence over the right to free speech.
This decision has been challenged by Facebook before a Division Bench of the Delhi HC, which has refused to grant a stay, but has restrained any contempt action from being taken against the Platforms for failing to implement the order of the single judge of the Delhi HC. This important issue will, in all probability, go to the Supreme Court of India for its final decision.