Statement: At SFLC.in we believe that ordering intermediary platforms to take down content globally, negatively impacts freedom of expression online, as different countries have different standards of speech. Such orders often require intermediary platforms to rely on automated filters and scan each uploaded content to check for its legality, which severely undermines the privacy of Internet users throughout the world. If global take downs become the norm, then the standard of speech on the Internet will reflect that of nations having the most regressive laws on free expression. We believe that civil society organisations, including industry leaders and experts must come together and form global alliances to assist courts and ensure that the Internet doesn’t become the bastion of regressive regimes. These orders, instead of taking away power, further concentrate authority in the hands of Internet giants, as speech determination on the Internet gets further delegated to private decision making. The risk of private censorship dictated by algorithms is known to suppress minority and marginalized groups, affecting the equalizing power of the Internet.

Our short note on the case can be found – here.

An Analysis of Swami Ramdev v. Facebook – The Existential Risk of Global Take Down Orders

Facebook has appealed the order before a Division Bench of the Delhi High Court, further reading - here.

Facts of the Case

The core of the matter involved certain content in the form of videos, which contained summaries of the book on Swami Ramdev (popularly known as Baba Ramdev) titled - ‘Godman to Tycoon – The Untold Story of Baba Ramdev’ by Priyanka Pathak Narain. This book, as part of separate litigation before the Delhi High Court (Swami Ramdev v. Juggernaut Books – CM (M) 556/2018), had been restrained from being published as the court held that it contained prima-facie defamatory content on Baba Ramdev. In the present case, the petitioners (Baba Ramdev and Patanjali Ayurved Ltd.) asked the court to issue a global take down order, for the defamatory content in question, to Facebook, Google, YouTube, Twitter and other unidentified Internet intermediaries (‘John Does’ or ‘Ashok Kumars’). They contested that since the content in question could be accessed from international versions of the platforms, a global blocking order ought to be passed.

None of the Internet platforms had any objection to remove the defamatory content from their India specific domains, but contested against removing the content from their global services.

Key Averments by the Parties

Petitioners (Ramdev and Patanjali)

Petitioners argued that once a defamatory book or article was printed or published, then the publisher of such book was liable for defamation. Relying on Supreme Court decision in Shreya Singhal v. Union of India, the petitioners contended that once a court had ordered content to be taken off, it was bound to be removed globally. They placed their reasons on various definitions of the computer resource, computer system, and computer network under the IT Act, 2000 (IT Act), to back their argument that there was nothing in the IT Act which stopped courts from giving global take down orders. They also stated that the platforms already had the technical capability to carry out global blocking, as they take content off globally based on their community guidelines and terms of use. The petitioners also clarified that details of the users who had uploaded the content weren’t specific enough for them to identify the individuals and reach out to them for taking down the videos.

Defendants (Facebook, Google, YouTube and Twitter)

• Platforms were mere intermediaries and not publishers, they were not liable for third party content on their websites. They did not perform constant monitoring on their services for each upload.

• Petitioners did not implead parties who had actually uploaded the content in question.

• What constituted defamation differed from country to country and passing a global disabling order would be contrary to the principle of comity of courts and would result in conflict of laws.

• Indian Courts, should not impose their own standards of speech internationally.

• Public interest differs from one country to another and an Indian court’s perception of public interest ought not bind other jurisdictions.

• Dissemination of views on the internet was an essential ingredient of freedom of speech and expression and the integrity of national judicial systems must be maintained.

• Sec. 75 which provides for extra territorial jurisdiction was limited to contraventions and offences under the IT Act and defamation wasn’t covered by these provisions.

• The court’s order should be proportionate to the alleged harm. The harm from a global injunction will be much higher.

• The book in question was already available on various international platforms for sale.

• Geo-blocking of content specific to India would be enough to take care of petitioner’s interests.

The Central Issue

Whether Internet intermediaries like Facebook, Google, YouTube and Twitter, in accordance with the prevailing jurisprudence in India on content take down [intermediary platforms were only liable to take down illegal content from their websites, when ordered by a court or appropriate government agency (as per Shreya Singhal)], were required to take down content locally (i.e. restricted to India) or globally?

The Court’s Order?

• The court held that once content was uploaded ‘from India’ and was made available globally, the removal of such content (once ordered by a competent court) shall also be ‘world-wide’ and not just restricted to India.

• The court ordered the intermediaries to take down the content (defamatory videos) globally, if they were uploaded from India. For uploads from outside India, the court ordered platforms to ensure that they use appropriate geo-blocking measures, so that users from India (Indian IP addresses) were unable to access the content.

• The court allowed Baba Ramdev and Patanjali Ayurved to notify the platforms (notice and take down mechanism) in case offending material was discovered by them in the future (for take down either from India or globally, depending on from where the content was uploaded). In cases where the platforms disagreed, they could intimate their disapproval, after which the complainants would need to take the recourse of courts.

Court’s Rationale

1. The crux of the court’s reasoning lies in the interpretation of Sec. 79(3)(b) read with the definitions of computer resource, computer system, and computer network, as per the IT Act. The court explained that according to the said provision, intermediaries were obligated to remove content from their platforms once ordered by a competent court. Such content was to be removed from the ‘computer resource’ controlled by the intermediary. Since the definition of ‘computer resource’ included within its ambit a ‘computer network’ - which wasn’t merely a single computer but encompassed a maze or a network of computers akin to a global computer network, the content must be taken off globally. Another reasoning which the court relied on was that since the defamatory content, though it was uploaded from India, was available throughout the world and thus once held to be illegal, must be taken off globally.

2. The court held that any other interpretation would not give full effect to the intent of the IT Act or the judgment of the Supreme Court in Shreya Singhal. Reiterating the principle upheld in Shreya Singhal, the court recognized that intermediaries shall not apply their own mind as to whether certain information should be blocked from their platform or not.

3. As soon as certain content was uploaded from India and was made available globally, Indian courts attained jurisdiction for such content to be removed, not just from Indian domains, but globally.

4. Based on an interpretation of Sec. 75 of the IT Act (which provides for extra territorial jurisdiction of the law), the court held that if content was uploaded from India or was located in India (can be accessed in India), Indian courts would have jurisdiction to pass global injunctions.

5. On the question of technical feasibility of blocking content worldwide, the court relied on the reasoning that platforms took down information globally when their community guidelines were violated, thus having the capability to enforce such take downs.

6. The court stated that once removal was ordered, it needed to be complete and not partial in nature. Geo-blocking could be easily circumnavigated by using VPN services, thus rendering the protection given to the aggrieved incomplete.

7. The court reasoned that it needed to strike a balance between the right to free speech and expression and the right to privacy (of the aggrieved party in this instance), right to reputation, national security, and threats to sovereignty.

Analysis

1. The Computer Resource/ Computer Network and Global Uploads Argument

The court’s main reason to order for a global take down was based on an interpretation of Sec. 79(3)(b) read with the definitions of computer resource, computer system, and computer network, as per the IT Act. It stated that Sec. 79(3)(b) enabled courts to order take down of content residing in a computer resource and since the definition of computer resource included that of computer network (a network of computers connected globally), the said provision enabled global take downs. The court’s logic was based in the argument that since the illegal content in question was uploaded globally, when ordered to be taken down, it was required to be taken off globally and not nationally.

This argument has the following flaw:

• The logic of the court that in the present context – computer resource (in terms of content take down) meant to be the global computer network maintained by the intermediaries, as when content was uploaded it was made available globally is deeply concerning. The Internet ecosystem is based on the idea of free flow of information and data across the world. The proliferation and growth of the Internet has made the world a smaller place because we can communicate in real time across physical boundaries. If we were to reverse the court’s logic – then only content accessible in India would be immune from a global take down order and any other content which was distributed on global systems of the Internet would be susceptible to global take downs. As the essential nature of the services offered by Internet intermediaries like Facebook was global and boundary-less, in order to comply with global take downs and different standards of speech around the world, Internet intermediaries may need to design country specific platforms, which will splinter the Internet and effectively erode the promise of the open Internet as we know it.

2. Effect on Global Free Speech Online

The court did not consider the effects of global take down orders on free speech online.

As argued by the platforms, there are varying standards of free speech around the world. Taking down content globally might negatively impact the speech rights of both - users and platforms in other countries such as the United States. Complying with the law of one country might make them run foul of the law in another. If adopted as regular practice by courts around the world, global take down orders will pose a major threat to free speech on the Internet as online speech will get defined by the countries with the most restrictive regulations on free speech.

Despite arguments about balancing of rights, the court did not explain how ordering of a global take down was a necessary and proportionate response to defamatory content on social media platforms, specially when all platforms had agreed to geo-block the content in question from India. Setting a precedent for Indian courts to order global take downs from social media platforms in order to protect the reputation of a well known Indian citizen is a disproportionate response to the harm which would have been suffered by Baba Ramdev, if such a global take down order would not have been ordered.

3. Future Uploads and Notice and Take Down

The court recognized that Internet intermediary platforms could not apply their own mind as to whether certain information was to be blocked or not unless ordered by court (as held in Shreya Singhal) but then went on to establish a new notice and take down and counter-notice regime (for this particular case) expanding the jurisprudence as laid in Shreya Singhal by the Supreme Court.

For future uploads of the defamatory content, the court allowed Baba Ramdev to directly approach the Internet platforms pointing to the URLs in question and platforms would need to take the content down. To safeguard platforms from abuse, the court allowed them to send a counter-notice if they disagreed, after which Baba Ramdev would need to approach the courts for regular legal relief. Though there is merit in this approach, as it gives platforms the chance to respond to notices, this is going beyond what is prescribed in Indian law and jurisprudence around content take down. As recognized by the court itself, according to Shreya Singhal, platforms cannot apply their own judgment in determining what is legal or not. There may be chances of both over-censorship and untimely take down of defamatory content (with respect to this specific case) if private parties are to decide what is legal speech.

4. The VPN Conundrum

One of the reasons the court did not accept the platforms’ arguments on geo-blocking being sufficient was due to the availability of VPN and web proxy services, using which users could access global versions of Internet platforms, thereby rendering geo-blocking ineffective. The court said that it could not get partial relief and for complete protection, a global take down was necessary. Thus, the court ordered that the defamatory content in question, which had been uploaded from India had to be taken down globally, but if the content was uploaded from outside India, the platforms would need be required to geo-block that content with respect to India.

The issue with this reasoning is, that users wanting to upload/ download the defamatory content , could continue to do it while using a computer in India by making use of VPN services. For illustration purposes – If X wanted to upload the defamatory content onto YouTube sitting in India after the court order (i.e. once the platforms had removed the content from their websites), they could mask their IP address using a VPN service to a country that was not India, say the United States. Once the content has been uploaded onto YouTube from another country it could subsequently only be blocked for access within India (as per the court’s order). Subsequently, when the content gets blocked from access in India, X or any other user from India could use a similar VPN service, mask its IP and continue to view the content on YouTube.

Thus, the court’s argument that a global take down was necessary due to availability of VPN services is erroneous as such services could continue to be utilized to both upload and download the content in question. The court did not consider such a scenario before arriving at its decision and a global blocking order was a disproportionate response to the question of accessibility of the video using VPN services.

5. Sec. 75 – Extra Territorial Application of the IT Act

Relying on Sec. 75 of the IT Act the court stated that as long as uploading of content takes place from India or information is located in India on a computer resource, Indian courts would have jurisdictions to pass global injunctions.

Sec. 75 gives the IT Act extra territorial jurisdiction with respect to offences or contraventions committed outside India. Offences are covered under the IT Act from Sec. 65 to 67C and contraventions are covered under Sec. 43 and 43A of the Act.

Firstly, none of these provisions cover the activity of publishing or making available defamatory content. Secondly, as intermediary platforms by their definition are not publishers and enjoy safe-harbour protection for content uploaded by third parties (as per Sec. 79 of the IT Act and recognized by court) they cannot be said to have committed any contravention or offence under the IT Act. Therefore, the reasoning of the court that Sec. 75 enabled courts to order global take downs was misplaced.

6. Global take downs and the CJEU

The Court of Justice of the European Union (EU’s top court) recently delivered two judgments, both which approved the ability of EU member nations to order global take downs after proper assessment.

In Eva Glawischnig-Piesczek v. Facebook Ireland Ltd. the CJEU while assessing a similar case of defamation and whether defamatory content could be ordered to be take down globally approved the authority of EU member nations to issue global take down orders. In this case the EU court also approved monitoring obligations on platforms like Facebook for ‘specific content’. This judgment is a blow to the online privacy rights of EU citizens due to the monitoring requirement.

“36. Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.”

Fortunately, in the present case, the Delhi High Court did not order for a general or specific monitoring requirement for future uploads, which would have disastrous for privacy rights of Internet users around the world.

In another recent case - Google v. CNIL, the CJEU refused to order for de-refrencing of links from Google’s global service due to difference in ‘right to be forgotten’ laws around the world. The court also stated that a balance needs to be struck between privacy and free speech. But the court went on to clarify that EU law does not specifically prohibit global take downs.

(SFLC.in intervened in this case)

We’ve written about the Google v. CNIL case – here.

In another case in Canada (Google Inc. v. Equustek Solutions Inc., 2017), where Google was asked to de-index listings for protection of trade secret rights of a subject from its global versions and it refused to do so, the Supreme Court of Canada ruled against Google and ordered a global take down requiring the search engine to de-index the relevant listings from its global versions. Though Google got preliminary relief on the Canadian Supreme Court judgment from a California court, the Supreme Court of British Columbia (Canada) refused to reverse the previous decision.

(SFLC.in intervened in this case)

Our comprehensive report on Intermediary Liability can be read – here.

The Delhi High Court relied on all these international judgments while arriving at its decision, illustrating how decisions on Internet governance from around the world drive the thinking of Indian courts as these novel issues crop up around the world.

We believe that civil society and experts from around the world need to come together and ensure that courts are provided proper assistance on law, technology and Internet policy so that they are able to appreciate these problems better and deliver decisions after analysing potential harms to users. Due to the global influence of such judgments on courts of the world, there is a growing need for global coordination of civil society members from around the world.

You can download and read the judgment here: