New Delhi: The Delhi High Court’s judgment last week on a plea filed by Baba Ramdev and his Patanjali Ayurved Ltd is set to have far-reaching implications. The court ruled that Indian courts can issue global takedown orders to platforms such as Facebook, Google and Twitter for illegal content uploaded by users.
Ramdev had approached the court requesting a global takedown of allegedly defamatory videos circulating on Facebook, YouTube, Google and Twitter, demanding injunction and damages.
In her judgment, Justice Pratibha M. Singh ruled against the practice of ‘geo-blocking’ or partial blocking of content only in one specific territory. She ruled that as long as either the content is uploaded from India or the information/data is located in India on a computer resource, Indian courts would have jurisdiction to pass global injunctions.
The order, however, is just the latest addition to the already bungled jurisprudence on global takedown orders, within India and abroad. ThePrint explains.
Geo-blocking versus global takedown
The videos in question were based on a book on Baba Ramdev titled Godman to Tycoon — The Untold Story of Baba Ramdev by Priyanka Pathak Narain.
While all the platforms agreed to take down the content from their India-specific domains and use geo-blocking to refuse access, they resisted a global takedown. The court, however, allowed Ramdev’s plea, with Justice Singh noting that when content is uploaded on any of these platforms, it is on their global services.
The judge further asserted that when these platforms remove content that violates their community guidelines, the takedown is on a global scale. With this reasoning, the platforms were directed to remove the defamatory content globally.
Different definitions of defamation
The Delhi High Court, however, did not take a detailed look at the fact that with the involvement of internet, territorial jurisdiction gets complicated. Nor did it consider the difference in standards of speech or privacy around the world before issuing the global injunction.
Defamation laws differ from country to country — while in the United Kingdom, the onus is on the defendants to prove that the content is not defamatory, in the United States, a higher burden of proof is placed on the plaintiff.
The differences have often been highlighted by various courts across the world, refusing to implement foreign judgments within their jurisdiction.
As recently as on 24 September, the Court of Justice of the European Union (CJEU) ruled that Google cannot be directed to remove (de-reference) search results from its global service, just because the content was declared illegal by an EU member state.
The CJEU specifically noted that the ‘right to be forgotten’ (which was the issue before it) had different standards of application and interpretation throughout the world. So, it ruled that it was enough for Google to delete the search results in question from its EU versions (i.e., EU domain name extensions, such as .eu, .fr or .de).
There have been other instances of courts denying implementation of injunction orders issued by foreign courts in defamation suits.
For instance, in Bachchan v. India Abroad Publications Inc., the Supreme Court of New York County refused to enforce a defamation judgment awarded by the High Court of Justice in London, England, ruling that it would threaten free speech protections offered by the First Amendment to the US Constitution.
Steering away from Shreya Singhal v. Union of India
Notably, the high court also allowed Ramdev to approach the platforms directly for future uploads, adding that in case the platforms found future content to be not defamatory or violative, they could inform Ramdev, who could then approach the court if he wished to.
This is a deviation from the Supreme Court’s landmark judgment in Shreya Singhal v. Union of India, when the court had clarified that intermediaries would be required to take down or block content only when they receive such an order either from the government or a court. It had specifically stated that such takedown would not be at its own discretion or upon receipt of request by an affected party.
“This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not,” the court had observed.
The jurisdiction in India and abroad as regards geo-blocking and global injunctions seems to be still developing, with the Delhi High Court order the latest addition to the unsettled jurisprudence.
A week after the 24 September CJEU decision, the court, in another case, ruled that individual member countries can order Facebook and other platforms to remove illegal content, and copies of such illegal content, and limit access worldwide.
The proof of unsettled jurisprudence globally especially lies in the ‘Equustek case’, which began with the Supreme Court of Canada upholding a global injunction against Google.
Google swiftly filed a suit in a US court to block its application there. The US court sided with Google, ruling that the Canadian order “threatens free speech on the global internet” and restricted the application of the Canadian court’s order only to Canadian territory.
Armed with this victory, Google then returned to the British Columbia Supreme Court to set aside its global injunction. The court, however, refused to do so, asserting, among other things, the independence of its decision-making process from its reception abroad, even in the case of orders that intend to have international effect.