By: Abhishek R and Poorvi Yerrapureddy
INTRODUCTION
The necessity of protecting privacy has been discussed by the Judiciary at large, over several years, through a multitude of cases. The one thing which the courts have ultimately decided upon is the fact that the right to privacy is fundamental. It extends beyond mere privacy in the constitutional sense to informational privacy of a person in a global social platform. In the era of social media and internet usage, where data reigns supreme, privacy is a significant concern. The advent of the internet has opened up a large avenue for sexual predators. The last decade alone has seen an unnerving increase in the number of internet facilitated sexual offences, with predators reaching out through the internet, and attacking children, adolescents, and adults alike. This perversion has led to a multitude of cases being filed in various levels of the judiciaries, world over, with varying outcomes.
FACTUAL MATRIX
The case of X v. Union of India (hereinafter ‘X v. UOI’) was decided by the Delhi High Court earlier this year. The premise was that the petitioner, ‘X’, had posted pictures on the social media platforms and raised a complaint when the said pictures were lifted from her social media accounts, mischievously and illegally, by an unknown entity, and uploaded on a pornographic website. The petitioner’s attempt to seek justice from the appropriate channels failed, forcing her to approach the Court.
Through this judgement, the Court aimed to answer two climacteric questions:
(1) What directions are required to be passed by a court to make its order to take down offending or illegal content, implementable and effective; and to which parties are such directions required to be issued; and
(2) What steps can be taken by the law enforcement authorities to ensure that the orders are implemented, and such content does not resurface/remain available.
Through this article, the authors aim to discuss the concept of a global takedown and its far-reaching implications in not only India, but also globally. The authors aim to provide clarity concerning the first issue as discussed by the Court.
DISCUSSION OF THE COURT
The High Court attempted to break down the issue at its roots in order to answer the questions posed before it. The Court ruled that the offending content must be regularly de-indexed by Google to ensure that it is not viewed by others.
The High Court refers to Swami Ramdev & Anr. vs. Facebook, Inc. & Ors. in order to elaborate upon the concept of Global Blocking. The case had held that for a cause brought up before the Court, the removal or disablement must be thorough and complete. Merely limiting it, or curtailing it to be partial in nature, must not be allowed, owing to the fact that it would render the Court’s judgement irrelevant, and lower the sanctity of the Court in the public eye. If geo-blocking alone is permitted, there exists no doubt that the offending information would still remain accessible on the global platforms, even viewable from India, by employing various software like VPNs, and other mechanisms.
The Bench in X v. UOI expounds that, for an order directing the removal or access disablement of offending content to be effective even within India, a search engine must block the search results throughout the world. The Court argues that the effect of such an order would be null if it has no realistic prospects of preventing irreparable harm to the litigant.
INTERRELATION BETWEEN GLOBAL TAKEDOWNS AND THE RIGHT TO BE FORGOTTEN
The decision of the Delhi High Court in X v. UOI has a direct implication on an oft disregarded right – of that to be forgotten; unrecognized under Indian Statutory Law. The Right to be Forgotten (hereinafter ‘RTBF’) includes ensuring that search engines delist certain URLs which contain information which has expressly been requested to be removed. The pertinent question which has raised a cloud over the implementation of the RTBF is whether deletion from a search engine or from a source would lead to permanent removal or not.
The RTBF is a right which has been discussed by various courts in recent years. While several cases have previously denied its existence, others have attempted to read it into the right of privacy, insofar as it exists in India.
The increasing trend in Court orders for global takedowns, results in positive and negative impacts. While weighing the impact of technology in our lives, with such orders of the Court, the increasing powers of the intermediaries becomes evident.
In the instant case, the Court should view the enforcement of the order in light of the fact that the violation of privacy has led to the images being put up on a pornographic website, wherein by mere association the pictures become sexually explicit content. It is implied that no individual would willingly want or allow their image to be tarnished by being forced to relive such an incident, through the persistent existence of its evidence online. This requires the scope of the RTBF to be widened to include scenarios where sexually explicit content can be taken down worldwide rather than having an individual request for a takedown of this content every time it appears on the internet.
TREATMENT OF GLOBAL BLOCKING IN OTHER JURISDICTIONS
It must be noted that the primary difference between global takedown orders of other courts and the instant case, is the fact that this particular case deals with sexually explicit material and a violation of the right to privacy, while others primarily deal with questions of infringing content. In foreign jurisdictions, several courts have granted global takedowns on various grounds, ranging from defamation cases (primarily seen in the European Union), the protection of intellectual property rights (Canada), and protection of personal financial data (Australia).
Regardless of the type of content, the irrefutable fact is that violations of various rights of individuals exist world over. Owing to such a global persistence, courts from around the world are forced to deal with the content by passing orders, requesting that the content be taken down. This request may be for a global takedown; however, such takedown may be limited to the court’s jurisdiction.
In this context, the question of whether a Court’s order is valid in other countries or can the jurisdiction be questioned arises. It is imperative that a standard be set, whereby, only in the instance that a certain threshold is crossed, global takedowns can be ordered. This would, in turn, act as a limiting factor in the exercise of the Court’s discretionary power, while still providing them with enough flexibility to be able to decide the matter. This threshold can be established primarily regarding two types of violations: a violation of privacy or an intellectual property violation. Privacy encompasses many cases; for instance, in the current global cases regarding global takedowns, the orders have been primarily regarding these two questions of law. Both of which have serious consequences.
The question now would be which category of rights can the right to ask for a global takedown come under; judicial discretion has been used in such cases but having a statutory authority regulating the same would ensure that justice is upheld, while ridding itself of any arbitrariness. Furthermore, if the RTBF, in particular, should be applied for global takedown orders when the issue is relating to matters such as in the instance case where the violation of privacy of the plaintiff leads to their content being uploaded on pornographic websites, asking for a global takedown of such content appears to be reasonable to the extent that they would no longer wish to see a reminder of such content. Irrespective of whether it is available in their country or not.
CONCLUSION
Ultimately, the question which arises is of safety: a person should feel safe while using the internet. When a scenario like this arises, it threatens safety. In instances where a piece of media is uploaded onto the internet, it is a fact that it is accessible from all over the world. It is said that every keystroke leaves a trail; that once something is on the internet, it can never truly be removed. It exists in perpetuity. The Court is duty-bound to protect such victims, and pass orders in such regards.
As several cases (Swami Ramdev & Anr. vs. Facebook, Inc. & Ors., X v. Union of India, Shreya Singhal v. Union of India, YouTube v. Geeta Shroff) have established the fact that something is removed from one location, via geo-blocking, does not imply that it is no longer accessible. It merely means that the content in question is not accessible from that particular location. This works well in certain scenarios. However, in cases like this, where images of an individual are being circulated and posted online, without their consent, merely geo-blocking the content is not only illogical, but also, not enough. The fact that the content will still be accessible from outside of the given jurisdiction implies that the right to privacy of the individual is still not upheld, which enunciates the importance of global blocking.
Global blocking forces a search engine to take down content which the court directs, from all over the world. This would ensure that such content is not accessible anywhere in the world. This would be the only way of ensuring that the privacy of an individual, once breached, can be regained.
Currently, large technology companies use their vast size, and multinational presence as a defence to being unable to uphold the global takedown order. This defence is lacking while compared to the issue of privacy, a fundamental right under the Indian Constitution. It thus becomes pertinent not only for such companies to update their guidelines to reflect the acceptance of global takedown, but also for the Court to successfully pass and execute such global takedown orders.
(Abhishek and Poorvi are law undergraduates at The National University of Advanced Legal Studies, Kochi. The authors may be contacted via mail at yerrapureddypoorvi@gmail.com )
Cite as: Abhishek R and Poorvi Yerrapureddy, ‘A Discourse on Global Takedowns vis-a-vis X v. Union of India’ (The RMLNLU Law Review Blog, 26 July 2021) <https://rmlnlulawreview.com/2021/07/26/global-takedown-x-vs-union-of-india/> date of access
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