By: Harsh Dhiraj Singh
A division bench of the Delhi High Court (hereinafter ‘the Court’), in the case of Swami Ramdev & Anr. v. Facebook, Inc. & Ors., ordered the defendants to take down, nationally as well as globally, all the defamatory content published against the plaintiff from their digital platforms. The nature of such a global disabling order has a huge impact over the principle of comity of courts as the scope of ‘defamatory content’ differs in different jurisdictions. This article puts forth the fallacies that the Court ignored while exercising its long-arm jurisdiction.
Certain videos which contained the summaries of a book, namely ‘Godman to Tycoon: The Untold Story of Baba Ramdev’, were uploaded on some digital platforms. The same book was restrained from publication in a separate judgment by the Delhi High Court on the ground that it contained defamatory content. The petitioners pleaded a global take-down order as against geo-blocking, which would have restricted its ramifications to national territories. The anomaly of the case existed in the fact that in the absence of a global take-down order, the content could still be accessed by users through international versions of the digital platforms. However, it did not recognise that by doing so, it was imposing Indian notions about ‘free speech’ and ‘public interest’, internationally. Imagine siting in a foreign country, and suddenly, your viewership and posts over platforms like Facebook, YouTube etc. are governed by the court of a foreign country. This decision has managed to communicate the same and asserted the fact that the Court, suo moto, attains jurisdiction over the global domain as soon as anything is published concerning an Indian citizen. This reasoning sets an incorrect precedent for India as well as other countries as far as future take-down and geo-blocking orders are concerned.
The primary flaw that emerges out of such reasoning is that the Court has very conveniently erased the differences that exist between different jurisdictions. The standards of freedom of speech vary between jurisdictions and setting up such a precedent would be devastating for those countries wherein such a right is already under threat. Such an approach has the ability to stimulate foreign policy frictions among the nations which, in normal circumstances, would respect the judgments of each other’s courts. The EU Court of Justice unequivocally asserted that if a global disabling order is allowed without due regard to the standards prevailing worldwide, it would heavily influence the policymaking practices of authorities and courts in countries that do not enjoy a high level of protection of fundamental rights.
The fundamental principles of territoriality and comity of courts have been put at stake by the Court. Statutory, as well as judicial precedents, have categorically stated as to what comes within the powers of domestic courts. Rendering a verdict that ignores these well-established principles has complicated the functioning and role of social media platforms. Having considered this basic moral argument, the upcoming sections comprise of the statutory as well as the judicial impact of the judgment.
MIS-INTERPRETATION OF THE INFORMATION TECHNOLOGY ACT, 2000
Regardless of the fact that the Court ignored the differences between the laws of different jurisdictions, it adopted a flawed interpretation of the domestic legislation as well. Section 75(2) of the Information Technology Act, 2000 (hereinafter ‘the Act’), warrants an extra-territorial application of the Act, if the computer, computer system or computer network, through which the offence or contravention took place, was located in India. The Court read Section 75 to include an extra-territorial application to offences or contraventions committed outside India. It miserably failed to delineate between the digital ‘intermediary’, and the ‘third party’, who actually committed the act. Section 79 of the Act exempts all intermediaries from liability for any third party information, data or communication link provided its functions are limited to only providing access to a communication system and do not extend to initiating the transmission, selecting the receiver of the transmission, or selecting or modifying the information contained in the transmission.
Digital platforms such as Facebook, Google, YouTube, Twitter etc. are not covered within the definition of a ‘third party’ whose primary activity is the publication of information. Rather, such digital platforms only provide access to a communication system to the publishers. It has to be understood that it is the person sitting behind the desktop who actually publishes such information and that these platforms are only a medium of transmitting the information. The enabling clause of Section 75 has been restricted to an extent by the exceptions created by Section 79. The Court has misled the situation by not reading the legal provisions in a holistic manner and strictly basing its judgment according to the letter of the law. Subsequently, it has also brought some of the landmark judgments of the Supreme Court to a questionable stand. One of them is the pioneering judgment in Shreya Singhal v. Union of India.
DEVIATING FROM THE SHREYA SINGHAL JUDGMENT
The Court has allowed the affected party (Baba Ramdev) to directly approach the digital intermediary in case any defamatory or derogatory statement was published concerning them. The Court, by doing so, derogated from the route laid down for approval in the landmark case of Shreya Singhal v. Union of India. The Supreme Court, in Shreya Singhal, held that the affected party must first approach the Central Government, and provided that the Central Government approves the request of the party, the digital intermediary will have to take down the defamatory and derogatory content from its platform. A deviation from this approval route subjects digital content to the whims and fancies of the general public. One cannot be allowed to command the digital platform to take down any content based on his idea of ‘defamatory’ and ‘derogatory’ content. Balancing of rights becomes even more important when such a line of reasoning is adopted without any restrictive measures. The Court has comfortably managed to keep two different rights at loggerheads without indulging into the scope, purpose and exceptions of either of the rights.
The weight of one right over another is nothing but stagnating the acceptance of a universal right to be treated equally. The Court, unfortunately, cannot pass a judgment in favour of both parties. In addition, it must also refrain from upholding one right as a priority over another. It needs to be reminded that the judiciary must attempt at striking a fair balance between rights at contention. However, a global de-referencing order in itself shows a bias towards one particular right over another. The right to privacy has to be balanced against the right to freedom of press, which is a very subjective assessment. If such a subjective assessment is accomplished by an objective method, i.e., a global take-down order, serious implications as to the ambit of fundamental rights could arise. Given the nature of rights at stake, this might lead to legal complexities in the future.
The judgment has left a lot of subjects open to debate. The judgment, in the end, mentions that as technology gallops, the law tries to keep pace. Although, such a misleading deduction by the Court is seen as law galloping technology and ultimately impairing its virtue. It has wide ramifications on issues like privacy, internet freedom, territoriality, comity etc. Nonetheless, the root solution lies in the principle of proportionality, i.e., the remedy should always be proportionate to the right in question. The principle of effective judicial protection should not authorise courts to adopt remedies with wider reverberations.
The ineffectiveness of geo-blocking was a bone of contention among the parties in the case. Nonetheless, in any case, it would have been the most effective and harmonising step, considering the various rights at loggerheads. The Court completely brushed aside all the countervailing rights and claims in the veil of ‘effectiveness’. This, inadvertently, made those rights vulnerable to the idea of ‘effectiveness’ wherein if one approaches a domestic court in any jurisdiction, one can avail the remedy of ‘global censorship’. The debate that emerges out of this reasoning begs an answer to one fundamental question: if ‘effectiveness’ is the standard, which nation’s law shall govern the dispute? The answer is not in the books of law but in the conscience of the courts of law, and that is all that can be said at the moment.
(Harsh is currently a law undergraduate at National Law University, Jodhpur. He may be contacted at firstname.lastname@example.org.)
Cite as: Harsh Dhiraj Singh, ‘Baba Ramdev v. Facebook, Inc.: Setting a Wrong Precedent on Global De-Referencing’ (The RMLNLU Law Review Blog, 30 December 2019) <https://rmlnlulawreview.wordpress.com/2019/12/30/baba-ramdev-v-facebook-inc-setting-a-wrong-precedent-on-global-de-referencing> date of access.