The decision of the Delhi High Court in the Baba Ramdev Vs Face Book/Twitter/Google case ordering global take down of defamatory content is likely to turn out to be a landmark judgement. Though the final word on the issue will be written by the Supreme Court when it hears the appeal, the Supreme Court has been provided with a powerful challenge if it desires to maintain judicial comity with international Courts.
Very recently, in the GDPR case of CNIL Vs Google, (2019), the EU Court of Justice had reversed an earlier ruling for global takedown and ruled in favour of Google. In this case it was held that while exercising the “Right to Forget” of a French Data Subject, it is sufficient if the data is removed from the French site of Google Search and it is not necessary to remove it from other search engines. The Court in this instance held that each country search engines are different data groups and are meant for different audiences.
Long time back, the US courts also had come to similar conclusions in the Yahoo-Nazi memorabilia case.(2006) In this case, the US Courts implied that a website with a country code extension of say .fr should be considered as a site meant for France. If the language of the website was French, it was clear that the target audience are French people where ever they are located.
In these cases as well as the earlier cases, the Courts determined the jurisdiction based on the “Intentions” of the content provider using “Interactive nature” of the websites, “Maintenance of contact address in a jurisdiction” , “Offering of goods and services to the people of a jurisdiction”, etc as parameters to determine the application of extra territorial jurisdiction.
However, in the case of Dow Jones Vs Gutnick (2002) the Australian High Court held that “An Australian Citizen could maintain a defamation suit in a local Australian Court for allegedly libelous statements published in a website in USA”. It was held that “Jurisdiction was proper in the place in which the article was downloaded and read and the harm caused not where the server is located or where the publisher’s principal place of business is located”.
The Dow Jones Vs Gutnick established that jurisdiction to determine the defamation and go on trial exists in the place where the harm is felt by the victim.
This has become a standard rule today and has also been adopted in the Baba Ramdev case. Hence all defendants have not opposed the trial and have in fact even agreed to their status as “Intermediary” under Indian law and also further agreed to implement the directions to a certain extent.
Enforcement Jurisdiction outside India
What the Delhi High Court has now embarked upon is the jurisdiction to force “Enforcement Jurisdiction” outside the territory of the victim/forum.
In the appeal, the Supreme Court may have no option but to uphold the judicial jurisdiction to try the case and provide relief to the victim of defamation from a foreign company, because the defendants have admitted their responsibility under Section 79(3) of ITA 2000 at least to the extent of exposure of the objectionable content to the Indian audience through “Geo Blocking”.
The point of contention however is the decision of the High Court ordering the global take down based on its interpretation that all the servers of the defendant companies are networked to share information and hence should be considered as a “Unified Computer Network System”. Under this consideration, “Removal of Content” is not complete unless it is removed in all places where it is stored and is accessible.
The Court has made a distinction only on “Data Uploaded from India” and “Data uploaded from outside India”. As regards data uploaded from India, the Court has ordered the global take down and as regards data uploaded from outside India, the Court has ordered “Blocking access”.
This argument of determining the enforcement jurisdiction based on the place from which the content was uploaded appears to be a new thought and could come in for deeper analysis in the Supreme Court.
The second point which is likely to be contested in the Supreme Court is whether Section 79 is applicable for offences where the cause of action is not ITA 2000 but other statutes like IPC.
It is our opinion that Section 79 does not restrict itself to offences within ITA 2000 but this could be argued.
Another point which the Court could have missed is that ITA 2000 under Section 13 has given a clear indication to determine the place from which a message has been sent as the “Place of usual residence”. Hence the applicability of ITA 2000 in respect of “Message Uploaded” depends on the usual place of residence of the uploader.
If however the “uploader” is anonymous, then the system from which the uploading has taken place may become relevant. It is open to the system owner to provide the identity of the uploader and establish with evidence that the person has a place of residence outside India and hence the upload location has to be determined accordingly. If the platform owner fails to establish the identity of the uploader, then the responsibility should rest with the owner of the system.
The “Attribution” under section 11 is clear that the responsibility for any computer which works automatically is attributed to the person who caused it to behave so…which is the platform owner. This “attribution” aspect is relevant for platforms who may claim that the system is automatic, they donot interfere in the publication etc.
Since all platforms have admitted that they are “Intermediaries” and sought the protection under Section 79 claiming “Due Diligence”, the fact whether they are really intermediaries or not did not figure in the High Court judgment. It is possible that this may not come for discussion even in the Supreme Court.
Since every platform analyses the profile of the users and determines what page has to be served to them or at least recommended to them, it is impossible to consider that any of these entities namely Face Book or Twitter or Google are actually entitled to the safe harbor provision of Section 79 which requires that these entities shall not
a) Initiate the transmission
b) select the receiver of the transmission and
c) Select or modify the information contained in the transmission.
All of them may fail the test of the third condition above which is mandatory for invoking Section 79.
If these platforms are not considered eligible for Section 79 protection, then shall be guilty of “Defamation” irrespective of whether they remove the content now or not.In the Duffy Vs Google, the Australian Supreme Court made the following interesting observations.
“..the concept of “passive medium” was apt to mislead because the nature of electronic media is that it is pre-programmed to fulfill a purpose….”
“Google participated in the publication of the paragraphs about Dr Duffy produced by its search engine because it intended its search engine to do what it programmed it to do”
“Google’s search results are published when a person making a search sees them on the screen … It is Google which designs the programme which authors the words of the snippet paragraph. Google’s conduct is the substantial cause of the display of the search result on the screen”
“Google was liable for the republication of the Ripoff Report pages to which it provided hyperlinks. This was because Google’s facilitation of the reading of these pages was both substantial and proximate”
If a similar view is taken in India, it would become irrelevant whether the Companies agree to remove the content or not. They will be directly liable to pay compensation to Baba Ramdev.
Probably Mr Ramdev’s counsel cannot raise this issue at the appeal stage but another third party intervener may raise this issue and contend that these platforms Face Book, Twitter and Google do not satisfy the requirements of Section 79 and hence should not be provided the protection under the section. In that case, the argument on removal of the content becomes secondary.
How Does the Court enforce its decision?
It is all fine to say that ITA 2000/8 has extra territorial jurisdiction under Section 75 and the Court has also recognized the personal jurisdiction based on the Victim’s right to invoke the Indian Courts etc.
Now that the Court has passed the order for removal of content, the next question that would arise is what would the victim do if the respondents don’t honour the directions of the Court.
It is possible that the Supreme Court may be obliging and grant a stay. If not, it is most likely that these platforms will do nothing to implement the directions of the High Court and will contend that the matter is sub-judice.
The High Court order therefore failed to recognize the need to impose a penalty if the respondents don’t follow the orders of the Court.
Such a direction was provided in the Yahoo -Nazi Memorabilia case by a French Court which ordered payment of a fine for every day of delay in implementing the content removal directions.
If the Court had ordered similar per-diem penalty and also indicated that failure to make the payment would lead to other consequences such as blocking the service in India, then the order would have had teeth.
Now this will be another order which is appreciated by academicians but has no immediate utility for the victim. We hope that when the Supreme Court admits the appeal, it directs the appellants to agree to implement the High Court order forthwith or agree to pay some compensation for any delay before the appeal is admitted.
(This is for academic debate. Comments and counter views are welcome. I invite some of my students to take up a deeper analysis)