The Delhi High Court has held that social media platforms like Facebook, Google, Twitter and YouTube are bound to globally disable and block any offending content uploaded from within India, against which there is an order of removal.
Ruling against the practice of geo-blocking or partial disabling content on the basis of territory, a Single Judge Bench of Justice Prathiba M Singh has stated,
"..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..."
The Court held that the interpretation of Section 79 of the Information Technology Act, 2002 leads 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.
The Court remarked,
"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."
The judgment was passed in a suit by Baba Ramdev and Patanjali Ayurved Ltd. (plaintiff) against the social media platforms.
It was the plaintiff's grievance that various defamatory remarks based on a book titled 'Godman to Tycoon – the Untold Story of Baba Ramdev' were being disseminated over the social media platforms. The plaintiff had thus sought a decree of permanent and mandatory injunction along with damages.
When the suit came up for hearing, an interim order of injunction was granted in the plaintiff's favour.
While the direction for removal of the offending URL and weblinks for the India domain was not in dispute, the social media platforms chose to argue on the issue of global blocking.
The plaintiff argued that in terms of Section 79, the platforms were bound to disable the content on a global basis in case of a Court order. No objections with respect to the geographical extent of implementation of the injunction could be raised, it was argued.
If the platforms claim that they are not obligated to comply with the orders of the Court, then they would also no longer be entitled to safe harbour under Section 79, it was submitted.
Facebook argued that a global blocking order would be contrary to the principle of comity of courts and would result in the conflict of laws and the muzzling of dissent.
Google Inc added that since the necessary party i.e. the uploader of the offending content had not been impleaded, the suit would be liable to be dismissed. It also argued that the Information Technology Act applied only to the territory of India and defamation was not one of the offences contemplated under Sections 43, 43A, 66A, 66B, 66 66E and Section 66F of the Act.
Twitter stated that grant of a global injunction would have a regressive effect. The global standard to protect free speech could be very low in various jurisdictions and Indian courts, which have a higher standard for free speech, should not impose its standards internationally, it was argued.
At the outset, the Court noted that none of the platforms denied that they are bound by Section 79.
After analyzing the international framework on the issue of geo-blocking and the Information Technology Act and its Rules, the Court concluded that if 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.
"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, 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 Court added,
"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...
...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.."
The Court further clarified that the removal and disablement was intricately connected to the information that is uploaded and the system upon which it is uploaded.
"The act of uploading vests jurisdiction in the Courts where the uploading takes place.. the Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material..(and) the same ought to be disabled or blocked globally.."
In case of uploads that 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, it added.
As far as the nature of the content was concerned, the Court opined that it could not be disputed that it was defamatory in nature.
In view of the above, the Court directed the social media platforms to take down, remove, block, restrict/disable access to offending content uploaded from India, on a global basis.
With respect to offending content uploaded from outside India, the Court directed platforms to block access and disable them from being viewed in the Indian domain, and to ensure that users in India are unable to access the same.
The plaintiff was represented by Senior Advocate Darpan Wadhwa with Advocates Simranjeet Singh, Rohan Ahuja, Sonali Dhir, Aadhar Nautiyal and Cauveri Birbal, instructed by Athena Legal.
Facebook was represented by Senior Advocate Parag P Tripathi with Advocates Richa Srivastava, Aditya Nayar, Mishika Bajpai and Nayantara Narayan.
Google and YouTube were represented by Senior Advocate Arvind Nigam with Advocates Mehtaab Singh, Prathishth Kaushal, Shruttima Ehersa and Sakshi Jhalani.
Twitter was represented by Senior Advocate Sanjeev Sindhwani with Advocates Deepak Gogia, Jithin M George.
Recently, the European Court of Justice ruled that courts in member states of the European Union (EU) can force Facebook to take down content and restrict global access to the same.