201911.24
13

Geo-blocking or global take-down

In the real world, we are territorially bound. In the virtual world, the boundaries do not exist. In the given scenario, application of the law of the land to the virtual world without any metes and bounds is a debatable territory. In one of the recent cases, Swami Ramdev v. Facebook [CS (OS) 27/2019], the Delhi High Court has ordered the intermediaries such as Facebook, Google, YouTube and Twitter to globally take down defamatory videos. The content of the videos has been lifted from the excerpts of a book, ‘Godman to Tycoon – The Untold Story of Baba Ramdev’ by Priyanka Pathak Narain, which have been already held as defamatory in a separate case – Swami Ramdev v. Juggernaut Books [CM (M) 556/2018] before the Delhi High Court and restraining order has been passed with regard to the publishing of the book without deleting the offending excerpts or portions. The said order has been challenged by the publisher before the Supreme Court and the same is pending. However, there has been no stay in the order/judgement.

The post discusses arguments and counter arguments of the parties against global blocking as opposed to geo-blocking. All the intermediaries or platforms, as defendants in this case, agreed to geo-blocking the content or videos within the territory of India as per an earlier court order dated 24 January 2019. They took a different stance when it came to globally taking down the content.

Plaintiff’s contentions vis-à-vis the global take down:

  • The grievance of the plaintiff is that if the global take down order is not passed, the content would be alternately available on the international websites, which can be accessed in India. The geo-blocking order is futile in its effect.
  • Further, as per Shreya Singhal v Union of India AIR 2015 SC 1523, the words “actual knowledge” in Section 79 of the IT Act, 2000 is a court order and once a court passes an order, the intermediary is bound to take down the content globally and cannot raise objections to the geographical extent of implementation of the injunction.
  • In the same vein, the plaintiff contended that if the defendants do not agree to the court order as to the geographical limits, they are also not entitled to the safe harbor under section 79 of the IT Act. Thus, it is not up to the defendants to assess the defamatory nature of the content and being the passive party should obey the court order. The section 79 of the IT Act provides for immunity to an intermediary against any third party communication transmitted on their platform to other receivers.
  • The global take down, if not effected, will result in irreparable injury to the plaintiff, but will not result in any inconvenience to the defendants.
  • The plaintiff cannot be expected to avail remedies in all the foreign jurisdictions or worldwide wherein such content is available virtually.
  • The use of VPN and proxy servers would anyway enable access to international websites in India and thus, the content should be taken down globally.
  • The Right of Reputation is a right guaranteed under Article 21 of the constitution. Relying on an order of Canadian Court, the plaintiffs argued that citizens cannot be forced to go to the courts in each country to protect their reputation.
  • They contended that since the intermediaries do not accept any responsibility at the stage of uploading which goes global, the removal of content should be too without hesitation globally.

Defendants’ contentions vis-à-vis the global take down:

  • They resisted the global-take down based on the principles of international comity and would result in conflict of laws. Thus, the principles of international comity require courts to respect the territoriality of their jurisdiction.
  • They further relied on different standards of speech and defamation around the world i.e., defamation laws differ from country to country and what constitutes defamation in one country may not constitute defamation in another country and thus, it would be legal publication.
  • They contended that they do not monitor the contents of the video and that they are protected from any defamation action as an intermediary as per the provisions of Section 79 of the Information Technology Act, 2000, which, as stated above, provides for immunity to an intermediary against any third party communication transmitted on their platform to other receivers.
  • The injuncted book is itself available internationally, which means that the injunction in relation to the videos should be applicable in India only.
  • The geo-blocking suffices to serve the interest of the plaintiff and there are no extreme circumstances that require a global blocking.

By implementing global blocking, they would run afoul of laws pertaining to free speech standards in foreign jurisdictions such as United States. They placed reliance on the Equustek case, wherein the Canadian courts ordered Google to remove the IP violating content globally. Google brought an action before a district court in the US to prevent enforcement of the Canadian order, the US court order restricted the order of the Canadian court to the territory of Canada to protect free speech on the global internet. Thus, such an order can lead in muzzling dissent and undermine the dignity of Indian courts.  They also relied on Playboy v Chuckleberry 939 F. Supp. 1032 (S.D.N.Y. 1996) wherein a US court held there could be not be an injunction by a US court against publication of magazine titled ‘Playmen’ in Italy. In George Galloway v William Frederick Frazer & Ors. [2016] NIQB 7, the High Court of Justice in Northern Ireland held that no global injunction orders can be passed.

Indian position in relation to geo-blocking and global blocking

The position in India has not been fully settled. In You Tube v. Geeta Shroff FAO 93/2018, whilst dealing with an offensive post, which was removed from the Indian domain rather than globally.  The court order removal of the posts from the internet as it was prior to the uploading of the contents. Thus, Google was required to remove the offending posts globally to restore the Status Quo Ante.

One of the recent cases, Subodh Gupta v Herdscene & Ors. CS(OS) 483/2019, the court ordered de-referencing or take-down of the defamatory content globally without any geographical limitation.

Judgment in the present case:

The court observed that in order to avail the benefit of Section 79 of the IT Act, the intermediaries have a duty to expeditiously remove or disable access. The intermediaries have to disable access to the material or data or information residing in or connected to “computer resource”. What would be the material to which the access has to be removed expeditiously? As per Section 3 (2) IT Rules, 2011, “the material or information that is grossly harmful, harassing, blasphemous, defamatory… or otherwise unlawful in any other manner whatsoever”. If any information falls into the aforesaid category, an intermediary has to disable the access to the same upon receiving the court order in this regard.

Further, as to the location from which the disabling should take place has been answered in Section 79 (3) of the IT Act. The removal of the offending material should take place “on that resource”. “Computer resource” has been defined as computer, a computer system or a computer network. It is not merely a single computer. It encompasses a maze of network which could be a global network. Thus, on a proper reading of Section 79 (3) of the IT Act would mean that if any information or data is residing in a computer resource, the intermediary has to remove or disable access to the said information on that resource i.e., global network. Further, it was pointed out that the “computer resource” in the initial part of section is the same “computer resource” as used in the later part of the section.  The latter cannot be a subset or species of the former. Simply put, if any information has been uploaded on a computer resource/network, it has to be removed completely from the computer resource/network. Thus, a direct interpretation of the section would be as long as the uploading of the information takes place from an IP address in India, the Indian courts will have jurisdiction to have it completely taken down globally. However, what has not been uploaded from an IP address in India, the intermediaries are directed to geo-block the same within the Indian domain.

Furthermore, the term access has been defined extremely broadly under section 2 (1) (a) of the IT Act. It means gaining entry into, instructing or communicating with the logical, arithmetical or memory function resources of a computer, computer system or computer network. In plain terms, if an intermediary geo-blocks the offending material, it would continue to reside in global platforms which users can gain access to. Thus, the obligation to disable access would mean entirely disabling access and not partially disabling access, which is only possible through global take-down.

To conclude, the court held that it is not unknown that the Canadian, European and American websites of Google, Facebook, YouTube and Twitter can be accessed in India through various technological means. Thus, in order for justice to be complete, the content has to be de-referenced or taken-down globally. The court relied on Shreya Singhal v Union of India AIR 2015 SC 1523 and held that the intermediary is bound to take down the content globally and cannot raise objections to the geographical extent of implementation of the injunction. Further, the courts gave more weightage to the right of reputation/privacy guaranteed under the Indian constitution as against the right of freedom of speech and expression, especially concerning defamatory content.

Our comments

In our view, as far as India is concerned, the position seems to be clear for the content uploaded from an IP address in India. However, for the content posted from an IP address outside India, the court ordered disabling access within the Indian domain. Thus, this leaves doubt considering section 79 (3) of the IT Act requires disabling access to the material or information on that resource. If it is left on the global platforms, people in India are anyway able to access the same. Thus, the remedial justice is incomplete. On the other hand, one can argue from the defendants’ side that interpretation of the definition “computer resource” as global network may not be same in the Information Technology jargon in other countries and may have domestic limitations. Thus, a global take down based on Indian definition and interpretation may not be appropriate. 

Lastly, there would be always debate between the right to reputation on one hand and right of freedom of speech and expression on the other. Further, even though such intermediaries seem to have policies in place to globally remove any grossly harmful, harassing, blasphemous, defamatory content, but they lay emphasis on receiving the court orders in order to adjudicate whether the content is harassing, defamatory etc. Further, upon such content being adjudicated as harassing, defamatory etc, the question again remains whether geo-blocking suffices or global injunction is required. Geo-blocking would have no waylays. However, global take-down orders may be open to interpretation of foreign courts until parity is reached on the basis of ‘one internet world and one guidelines’.

Finally, last word is yet to be written in this saga, as Facebook has filed an appeal against the above order to the two judges bench (Division Bench) which was admitted by the court on 31st October 2019. The case has been put up for arguments on 7th December 2019 before the Division Bench. As an interim measure the court ordered no contempt proceedings can be brought against Facebook for any non-compliance with the aforesaid order.