What Delhi High Court’s Order On Defamatory Content Means For Web Platforms

In a first, the Delhi High Court has directed search engines and social media platforms such as Google, Facebook, Twitter and YouTube to implement a global takedown of defamatory content in a case filed by yoga guru Baba Ramdev.

A single-judge bench of the Delhi High Court, comprising of Justice Pratibha Singh, has ruled that Indian courts have jurisdiction to pass an order for blocking or directing a takedown of any defamatory or offensive content on web platforms on a global basis, if such content is uploaded from or within India.

Ramdev had sought a permanent injunction and damages against the web platforms alleging that they were disseminating “defamatory remarks” and information against him in the form of videos and web posts.

Noting that it is necessary for courts to strike a balance between the freedom of speech and a citizen’s right of reputation and privacy, the high court observed that the orders of a court are meant to be implemented fully and effectively. Therefore, it directed the takedown and geo-blocking of the defamatory content.

Experts told BloombergQuint that the order of the high court could result in conflict between Indian and international laws since internet spans across multiple geographies.

The Defamatory Content

In 2018, Baba Ramdev and Patanjali Ayurved went to the Delhi High Court to restrain a publisher from publishing, distributing or selling a book titled “Godman to Tycoon – the Untold Story of Baba Ramdev” unless portions of the book allegedly containing defamatory or offensive comments were removed.

Allowing Ramdev’s plea, the court had restrained the publisher from publishing or distributing the book till such “offensive content” was removed. Ramdev had also moved the court seeking removal of video and posts hosted on popular websites—Facebook, YouTube and Twitter. The videos and posts on web platforms carried similar “defamatory remarks” which were initially restrained for publication by the Delhi High Court, Ramdev’s counsel argued.

In defense, the web platforms said:

• Facebook said that even if the high court is vested with jurisdiction, it must be reluctant to pass a global blocking order. The social media site has already resorted to geo-blocking which avoids access to the defamatory content in India.
• Google argued that the Information Technology Act mainly applied to the territory of India. While the Act contained certain grounds for extraterritorial applicability, defamation was not covered within such grounds.
• Micro-blogging platform Twitter said that any order passed by the court for a global injunction could have regressive effect on India. Further, offenses under the IT Act must be dealt by a criminal court.

Delhi High Court’s View

The court relied on the provisions of the Information Technology Act to say that Indian courts have extraterritorial jurisdiction to deal with an offense or contravention committed outside India, if the act involves a computer system or computer network located in India.

The high court read into the definition of “computer resource” in the IT Act and observed that a computer resource includes a “computer network”, which implies an entire network and not merely a geographically limited network. Thus a direction for removal of content under the IT Act would not be limited to a country-specific domain, the court held.

And so, it issued the following directions to the web platforms:

• Take down, remove and restrict access on a global basis to the defamatory links and videos which were uploaded from IP addresses in India.
• Restrict access from India to any links carrying the defamatory material which originated outside India.
• Block or remove access to any further links or videos notified to the social media platforms by the plaintiffs.

Indian courts have not routinely passed orders which would have a worldwide impact, Apar Gupta, executive director at the Internet Freedom Foundation, told BloombergQuint. The order of the Delhi High Court, where it has granted injunction to the plaintiffs, throws up a novel instance of a global content takedown, he said.

The key takeaway of the judgment, according to Arun Prabhu, partner at Cyril Amarchand Mangaldas, is that the court has demonstrated its willingness to direct a global takedown of defamatory content uploaded in India. As things stand, companies will have to either convince courts of the adequacy of the measures that they have taken to make information accessible only in India, or risk a global injunction, he said.

Global Takedown Of Content: Implications

To be clear, none of the web platforms in this case raised any objection to disabling access to defamatory content in India. It’s the global takedown that they objected to. Defamation laws differ from jurisdiction to jurisdiction, and a global disabling order would be contrary to the principle of comity of courts and would result in conflict of laws, the internet platforms argued.

A similar situation, the platforms said, arose in the Equustek case, where a Canadian court had directed Google to remove certain content worldwide. Google had appealed this decision before a U.S. District Court which restricted the application of the order to only Canadian territory.

Finally, 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, the web portals argued.

But the high court dismissed these arguments. It said that if defamatory content is uploaded from India and then replicated, disseminated via servers outside, Indian courts will have jurisdiction.

A conflict of law situation would arise depending upon who is seeking relief in the present case, NA Vijayashankar, a cyber law consultant and visiting faculty at Nalsar University, said. Foreign courts exercise their jurisdiction if rights of their citizens are likely to be affected and web platforms may seek remedy contesting that the court’s order affects their right to free speech, Vijayashankar said.

The order of the high court can also have implications on the way companies handle any takedown or content removal notice received from a court, Prabhu said. While the decision is currently being appealed, it signals to entities operating in India that Indian courts may issue orders for global takedown and this must be factored into their operations, he said.