Logo

Defender of your Digital Freedom

All Posts | Jan 17,2020

The Future of Intermediary Liability in India

This report is our third in the series on Intermediary Liability. The first two reports can be downloaded from - here and here.  This report analyses four of the key changes recommended by the Ministry of Electronics and Information Technology to the Intermediaries Guidelines under India's Information Technology Act, 2000 - upload filters, traceability, local office threshold, and 24-hour take down timeline. The report does a legal and technical analysis of these recommendations, captures global perspectives and insights from stakeholders. Download the report

All Posts | Dec 24,2019

Report Launch: The Future of Intermediary Liability in India

Report Launch: The Future of Intermediary Liability in India

SFLC.IN is releasing a report on Intermediary Liability titled “Future of Intermediary Liability in India” on January 17, 2020 at the India Islamic Cultural Center. The event will be inaugurated by Mr. Rajeev Gowda Hon'ble Member of Rajya Sabha, Parliament of India and followed by a panel discussion on "Controlling Intermediaries- Shrinking Safe Harbour, Dwindling Freedom"

A Brief Background

On December 24, 2018, the Ministry of Electronics and Information Technology issued the Draft Intermediary Guidelines (Amendments) Rules, 2018 (New Rules), to amend the Intermediary Liability Rules, 2011. The New Rules set out additional requirements such as use of automated filters, and traceability of messages, in order to avail the safe harbor protection for user-generated content under the Information Technology Act, 2000. While the changing landscape of the Internet warrants additional responsibility from intermediaries, the New Rules have raised several concerns pertaining to the flow of information and freedom of speech and expression of citizens in the online space.

SFLC.in been closely working on the developments in the Intermediary Liability space in India since 2010. In 2014, SFLC.IN published a report titled Information Technology (Intermediaries Guidelines) Rules,2011, which was launched in an event attended by Mr. Baijayant Panda (Former BJD MP), Mr. Jagdambika Pal (MP), Dr. Govind (Erstwhile, National Internet Exchange of India), Mr. Jayant Choudhary (General Secretary, Rashtriya Lok Dal), Dr. Arvind Gupta (Former Convener, IT Cell, BJP) and Mr. Faisal Farooqui (CEO, MouthShut.com). A follow up report titled “Intermediary Liability in India: A Shifting Paradigm” was published in March, 2019 by Mr. Gopalakrishnan (Joint Secretary, MeitY) and other industry representatives.

As the New Rules are expected to be notified in January 2020, SFLC.IN is publishing a third report discussing their impact on the intermediaries functioning in India on 17th of January, 2020 at the India Islamic Cultural Center (Conference Hall No. 1) between 5:00 pm to 7:30 pm

RSVP

To confirm your presence, RSVP Here

 

All Posts | Nov 15,2019

A Detailed Analysis of the Swami Ramdev v. Facebook Judgment

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.
  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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:

All Posts | Oct 24,2019

Del. HC Orders for Global Take Down of Content

Delhi High Court Approves Take Down of Content Globally

Asks Facebook, Google, YouTube and Twitter to remove defamatory content from their global services

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, 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 word. 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.

Our detailed analysis of the judgment can be read - here.

In a far-reaching judgment delivered yesterday by the High Court of Delhi, the court affirmed the position that Indian courts can issue global take down orders to Internet intermediaries like Facebook, Google and Twitter for illegal content published by users of their platforms. The court discussed two recent judgments of the Court of Justice of the European Union (CJEU), wherein the top-court of the Union assessed the validity of global take down orders (Google v. CNIL and Eva Glawischnig-Piesczek v. Facebook).

[Since the time we posted this analysis, Facebook has sought an appeal of the Single Judge Bench decision in this matter before a Division Bench (comprising of two judges). The next hearing in this matter is on December 7th, 2019. We'll keep our readers updated with the developments in this case.]

[SFLC.in was an intervener in one of these matters before the CJEU – Google v. CNIL. To read a summary analysis of that matter, click here.]

In the current case – Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi High Court], the petitioner – Swami Ramdev (a public figure in India) requested the court to order global take down of content (videos), which was defamatory in nature, from online platforms – Facebook, Google, YouTube and Twitter (including other unnamed intermediaries). The content in question were videos about a book on Swami Ramdev titled - ‘Godman to Tycoon – The Untold Story of Baba Ramdev’ by Priyanka Pathak Narain. The petitioners in a separate suit before the Delhi High Court had already obtained a restraining order on the publishing of the book (Swami Ramdev v. Juggernaut Books – CM (M) 556/2018) on the basis that the book contained defamatory content on Swami Ramdev’s life.

All platforms agreed to take down the content in question from their India specific domains and use geo-blocking to ensure refusal of access (in accordance with law declared by the Supreme Court of India in Shreya Singhal v. Union of India). But on the question of global take downs, platforms resisted based on principles of international comity, different standards of speech and defamation around the world, and that they did not actively monitor uploads on their platforms being intermediary platforms.

The court refuted these claims and held that online platforms can be ordered to take down content globally by a competent court in India (global take down for illegal content uploaded from India and local take down/ geo-blocking for content uploaded from outside India). The court made the following arguments to support its stance:

  1. Interpretation of Sec. 79 of the IT Act: The court relying on Shreya Singhal stated that once an intermediary had been ordered by a court of law to take down content from its platform, such a platform must disable access not just from the local domains but from its global service. While arriving at this conclusion, the court relied on the definition of ‘computer resource’ under the IT Act and held that computer resource included a ‘computer network’ which meant that platforms had to remove content from their entire computer network (which meant their global service) once an Indian court had held content to be illegal.

  2. Global Uploads: The court argued that when information is uploaded on Internet platforms, they are available on their global services, thus at the time of take down too, such platforms must remove the content from their global domains and not just locally.

  3. Global Take Downs: The court stated that since all the said platforms take down content globally when certain information violates their community standards, therefore it was technologically possible for them to take down content ordered by courts globally too.

  4. Extra territorial jurisdiction of IT Act: Relying on Sec. 75 of the IT Act, the court held that the IT Act allows for extra territorial application for offences or contraventions committed outside India, so long as the computer system or network is located in India. Thus, so long as either the uploading takes place from India or the information/ data is located in India on a computer resource, Indian courts would have the jurisdiction to pass global injunctions.

  5. Removal should be complete: The court reasoned that once content has been asked to be taken off, such removal needs to be complete. The technological ability of users to circumvent geo-blocking (by using VPN and web proxy services) renders the protection incomplete and thus for a complete remedy, a take down must be global.

Interestingly, the court re-established a ‘notice-and-takedown’ mechanism for future uploads of the defamatory content in question, allowing Swami Ramdev to approach the platforms directly for future uploads. But, the court has allowed a counter-notice system for the specific case as well, by allowing platforms to refute claims of illegality and shifting the burden of proof back on claimants, in which case, they will have to approach the courts for an appropriate remedy.

Unfortunately, the court did not consider the following arguments while delivering its judgment:

  1. Effect on free speech and privacy: Different countries have different standards of speech and defamation around the world. Mandating platforms to take down content globally will run the risk of making intermediaries fall foul of law in other countries. For ex. if another nation asks for take down of content which is perfectly legal in India, it will affect the free speech and right to information rights of Indians on the Internet. Unfortunately, the court did not delve too deeply into this issue.

  2. Use of VPNs can still circumvent restriction: Users may still use VPN services to mask their upload location and both upload the illegal content and then use the same service to download said content as that information will only be blocked for Indian domains. Though the court has reasoned that global take downs become important due to the availability of VPN and web proxy services, despite the order, users can still utilise such services to upload and download the defamatory content in question, making use of a computer located in India. Thus global take down are not a proportionate remedy and the costs greatly outweigh the benefits, since easily available technology tools may circumvent the intended protection.

  3. Notice-and-takedown: The court recognized the principle as expounded in Shreya Singhal that intermediaries cannot apply their own mind when it comes to determining which information should be blocked or not, but in its order allowed the petitioners to send notices directly to platforms if the content in question was found to be re-uploaded (though the court allowed for a counter-notice mechanism, writing in new jurisprudence, it steered away from the protection granted to intermediaries by Shreya Singhal, where take downs could be requested only by courts or appropriate government agencies).

In the recent judgment of the CJEU in Google v. CNIL, the court while stating that Google cannot be made to de-reference links from its global service, based on the content which has been declared to be illegal by an EU member state, reasoned that ‘right to be forgotten’ (as was the issue in the particular case) standards were different in different nations around the world. Considering the principle of proportionality, wherein the ‘right to be forgotten’ needs to be balanced with the competing right to information of Internet users, the court held that since the standards of such proportionality will vary across the world, it will be incorrect to order Google to take down links from its global service. Such determination of different legal standards for speech or privacy around the world was not considered by the Delhi High Court while arriving at its decision.

Unfortunately, other judgments from around the world, in particular - Google Inc. v. Equustek Solutions Inc. where Google was asked to de-index listings for protection of trade secret rights of a subject from its global versions and the Supreme Court of Canada ruled against Google and ordered a global take down; and Eva Glawischnig-Piesczek v. Facebook Ireland Limited – where the CJEU asked Facebook to take down defamatory content against Ms. Piesczek from its global service, embolden the position taken by the Delhi High Court in ordering a global take down.

Indian courts must consider the free speech and privacy rights of Internet users while assessing intersections of technology and traditional laws such as defamation. The court while relying on the definitions of ‘computer resource’/ ‘computer network’ and while protecting the right to privacy and reputation of one individual, ended up undermining privacy, speech, and information rights of not just Indians but Internet users around the world.

Considering the issues arising from this matter, we will be shortly publishing a more detailed analysis of the case.

[Recently, we wrote a comprehensive report on Intermediary Liability covering trends in Indian law and policy and from around the world. You may download our report from – here.]

A copy of the judgment can also be downloaded from here:

All Posts | Sep 26,2019

CJEU rules that search engines cannot be asked to de-list information globally under EU right to be forgotten requests

CJEU rules that search engines cannot be asked to de-list information globally under EU right to be forgotten requests

On September 24, 2019, Europe’s top court, the Court of Justice of the European Union (CJEU) held that search engines who’ve been requested for de-referencing links under the right to be forgotten (after an order from a supervisory or judicial authority of a member state of the EU) are not obliged to perform the de-referencing from all (global) versions of its service. SFLC.in had intervened in this matter along with other civil society organisations from around the world.

The question was referred to the CJEU by the Conseil d’Etat in France, after Google refused to de-reference information from all its versions (jurisdictions beyond the EU) as ordered by the French data protection authority, the CNIL (Commission Nationale de l'Informatique et des Libertés). The right to be forgotten (RTBF) is a privacy right enjoyed by the citizens of EU member states previously under the personal data protection directive of the EU (Directive 95/46/EC), which has been now replaced by the the General Data Protection Regulation [Regulation (EU) 2016/679] (GDPR). Since this reference was made to the CJEU before the enforcement of GDPR, the court examined the law taking into account both – the personal data protection directive and the GDPR.

The CJEU in its reasoning stated that numerous countries around the world either do not recognize the RTBF (including the right to de-referencing) or have different approaches to it. Referring to GDPR, the court stated that the protection of personal data was not an absolute right and is required to be balanced with competing rights such as the freedom of information of Internet users, as per the principle of proportionality, within the EU, such a balance has not been struck for de-referencing of information which will apply outside the EU. The court also opined that such a balance between these competing rights is likely to vary significantly around the world.

The CJEU clarified that EU law requires search engine operators to carry out de-referencing on all versions of its service which are accessible from EU member states. The court clarified that search engines are also required to implement measures to effectively prevent or seriously discourage Internet users form accessing links on the subject matter of de-referencing from within the EU, but using non-EU versions of the website.

The top court also held that global de-referencing in matters of RTBF are not specifically prohibited under EU law. Local data protection authorities of EU member states have the power to ascertain whether de-referencing is required globally or not after balancing data subject’s right to privacy on one hand and the right to freedom of information on the other hand.

This ruling from the CJEU is a great victory for the freedom of speech on the Internet for all users. If nation states start requesting search engines like Google to de-list links from their global versions, the Internet will practically become the bastion for countries with the most regressive laws on free speech online. The RTBF has been often criticised for enabling bad actors to take down listings from popular search engines, which negatively impacts freedom of information and speech on the Internet, but the CJEU’s recognition of the principle of proportionality and maintaining a balance between the competing rights of privacy and free information in cases of RTBF, puts regulation on the right path.

In a similar 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. This judgment of the Canadian court was heavily criticised by civil society organisations and Internet advocates for violating the free speech and information rights of global Internet users. SFLC.in had also intervened in the Google v. Equustek matter in Canada.

For a detailed analysis of the RTBF and key cases on it, kindly refer to our comprehensive report on intermediary liability, here – Intermediary Liability 2.0 – A Shifting Paradigm.

The provisional text of the judgment as downloaded from the official website of the CJEU, can be accessed, here:

All Posts | May 02,2019

Google v. Visakha: Final Arguments

In 2009, Visakha Industries, a construction company involved in the manufacturing of asbestos cement sheets, filed a criminal defamation case against Ban Asbestos Network India (BANI), its coordinator and Google India. It alleged that the coordinator of BANI had written blog posts on a website owned by BANI, that contained scathing criticism of the company and therefore harmed its reputation in the market. Google India was also arraigned as a party in the litigation because the blog post was hosted on the blog publishing service of Google (Google Groups).

Google India moved the High Court of Andhra Pradesh for dismissal of the criminal charges against it on the grounds that it enjoyed safe-harbour protection under Section 79 of the IT Act. It was contended that Google is neither the publisher nor endorser of the information, and only provides a platform for dissemination of information. It, therefore cannot be held liable. The High Court refused to accept Google’s contention and dismissed the petition on the ground that Google failed to take appropriate action to remove the defamatory material, in spite of receiving a take-down notice from the company. Aggrieved by the judgment of the High court, Google filed an appeal in the Supreme Court in 2011, where the matter is currently pending.

On April 23, 2019, the matter came up for final arguments in the court of Justices Ashok Bhushan and K.M. Joseph. Senior Counsel Sajan Poovayya appeared on behalf of Google India and submitted that Google India is a subsidiary of Google US, which is a company incorporated under the laws of the United States of America. He asserted that Google India, by virtue of being a mere subsidiary does not exercise any editorial control over content posted on google groups. It was further contended that the relief claimed by the complainants is misdirected and hence not maintainable since Google India has been arraigned wrongly in this matter. Since Google US is the parent company of Google India, it is an intermediary in the present case, stated Mr. Poovayya. He mentioned that even if Google US is made a co-accused, it will be eligible for safe harbour under Section 79 of the Information Technology Act. Mr. Sajan Poovvayya pointed out that child pornography or content that is blatantly illegal is immediately pulled down from platforms, but whether a particular content is a defamatory cannot be determined by a private company. It has to be a judicial determination. It was highlighted that the terms of services is a document of unimpeachable character which clearly mentions that there is a contract between the content creator and Google Inc. The terms of services also lays down the types of content that cannot be uploaded on Google Groups. On country-specific domain names, Mr. Poovayya clarified that google.co.in is owned and operated by Google Inc and not Google India and the kind of content that can be posted on platforms is different for different countries, depending on the social and cultural context of that particular country.

Mr. Poovayya then emphasized that the present complaint is not against Google, but technology itself, since the complainant has mentioned that Google provides a service that helps in dissemination of information. He mentioned that it is not humanly possible to verify each blog post that is posted on the website since the volume of content is phenomenal. Ms. Madhavi Divan, appearing for Union of India interjected and said that Google India cannot wash its hands off saying that they are a subsidiary and therefore have no control over the content. Someone has to be made responsible.

Mr. Poovayya went on to explain the intermediary liability regime in India, including the procedure for notice and take down which had been overhauled by the Shreya Singhal judgment. He asserted that giving adjudicatory powers to intermediaries is dangerous and will lead to chilling of free speech. The law recognizes that the primary responsibility is on the originator of information since she is the author, and not on the intermediary. In a free speech democracy like India, there cannot be control of content on the Internet, he emphasized. Justice Ashok Bhushan remarked that defamation is subjective. What may be defamatory for one might not be defamatory for another. At this point, Mr. Poovayya gave the example of flag burning which is an offence in India but a symbolic act in the United States.

The hearing continued on May 1, 2019.

Mr. Sajan Poovayya appearing on behalf of Google India reiterated that removal of any content is in the hands of the parent company (Google Inc) and not Google India. He requested the bench to go through Section 2(1)(w) of the IT Act that defines ‘intermediary’ and Section 81 (IT Act to have overriding effect). He then explained that an intermediary is the connector between the ‘originator’ and ‘addressee’ as explained in the IT Act. Mr. Poovayya stated that in this case, the pre-amended section 79 of the Act will apply, but it doesn't make a difference, because Google India is not an intermediary in the present case.

Mr. Poovayya mentioned that in common law, the intermediary is not the publisher of the information. The author and publisher converge in the electronic world. He pointed out that simply hosting content does not constitute ‘knowledge’. Justice K.M Joseph enquired about the kind of functions Google India performs, to which Mr. Poovayya responded by saying that Google India is involved in research and development of software. He remarked that Google India is the subsidiary of an intermediary, but to say Google India is an intermediary is wrong.

Mr. Poovayya then addressed the criminal complaint against Google India and asserted that just because Google’s technology is responsible for dissemination of information, they cannot be made an accused in the present case. He read out Google Inc’s response to the defamation complaint, which said that Google Inc had asked for the exact message ID of the alleged defamatory content and other relevant information. Mr. Poovayya highlighted that the summons that was issued to Google India in Bangalore was outside the jurisdiction of the court. Thereafter, Google had moved the Andhra Pradesh High Court to quash the complaint. He maintained that Google Inc has no liability by virtue of being an intermediary. Explaining Shreya Singhal v. Union of India, Mr. Poovayya stated that ‘actual knowledge’ was read down to mean that a private takedown notice cannot be sent to the intermediary. It has to be either a court order or a government notification. He remarked that Google cannot sit in judgment to decide the legality of a private notice, and therefore the notice and takedown system was scrapped in Shreya Singhal. He cited the American case of Anderson v. New York wherein it was held that a telephone company is a mere conduit and cannot be held responsible for the actions of a third party.

The counsel for Visaskha Industries contended that the exemption given under Section 79 of the IT Act is subject to fulfilment of certain due diligence conditions and it will be a matter of fact whether Google adhered to the Rules. He mentioned that Google India is very secretive about the kind of functions they perform. They should come forward and tell the court what exactly is their function in India. Counsel for Visakha Industries highlighted that Google had all the power to remove the content but did not remove it which suggests that they had consented to the publication of the defamatory content. He maintained that Google may have a defence prior to Visakha Industries sending them a notice, but after receiving the notice, they were obligated to remove it as it affected the complainant’s right to reputation. Concluding his arguments, he stated that Google is present everywhere and hence cannot claim the defence of geographical location. Google ads are local in nature depending on the geographical location of the user.

Senior Counsel Madhavi Divan appeared for the Union of India. She submitted that the role of intermediaries has changed over time. Intermediary is not the publisher of information was the view 2-3 years ago. They were regarded as neutral highways, but this has changed. Now they are curating content on the basis of user behaviour and therefore cannot be regarded ‘neutral’, Ms. Divan remarked. She stated that governments all across the world are grappling with the issue of moderating illegal content on the Internet and gave the example of the Christ Church shooting in New Zealand where the perpetrator live streamed the act on Facebook. Citing Shreya Singhal, Ms. Divan maintained that it cannot be left to the subjective judgment of intermediaries to determine the legality of particular content.

The matter is reserved for judgment and all the parties are requested to submit their written submissions within a week.

All Posts | Apr 12,2019

Blue Paper – Conference on Future of Tech Policy in India

We organised a Conference on 'Future of Tech Policy in India' on 15 March 2019 in Delhi. Over 150 people participated in the conference. Our report on Intermediary Liability 2.0 - A shifting Paradigm was launched during this conference.

 

A Blue Paper containing inputs received during this conference is available below. This document does not reflect the views of SFLC.in.

 

Brief agenda:

  • 09:30 AM to 10:00 AM: Registration

  • 10:00 AM to 11:30 AM: Session 1 - Misinformation and Intermediary Liability

  • 11:30 AM to 11:40 AM: Overview of the Report on ‘Intermediary Liability 2.0: A Shifting Paradigm’

  • 11:40 AM to 11:50 AM: Tea Break

  • 11:50 AM to 01:15 PM: Session 2 - The Role of Social Media in Elections

  • 01:15 PM to 02:00 PM: Lunch

  • 02:00 PM to 03:20 PM: Session 3 - Online Harassment

  • 03:20 PM to 03:30 PM: Tea Break

  • 03:30 PM to 03:50 PM: Lightning Talk on FreedomBox

  • 03:50 PM to 05:00 PM: Session 4 - The Future of Tech Policy

All Posts | Apr 08,2019

Madras High Court Bans Downloading of TikTok

On April 3, 2019, the Madurai Bench of the Madras High Court issued an order (the court order is attached below) prohibiting downloading the TikTok mobile app. The bench comprising Justices N Kirubakaran and SS Sundar has also restrained the media from telecasting videos made on the app and has asked the Central Government whether it will enact a statute similar to the United State’s Children’s Online Privacy Protection Act. The public interest litigation [Writ Petition (MD) no. 7855 of 2019] was filed by one S. Muthukumar against the Telecom Regulatory Authority of India, Ministry of Communications, District Collector (Madurai District), Commissioner of Police (Madurai) and the Business Head of TikTok.

Citing misuse of the app, the petitioner prayed (a copy of the petition is attached below) for issuance of a writ of mandamus and banning the TikTok mobile application. The petitioner highlighted widespread circulation of pornography, exposure of children to disturbing content and their susceptibility to paedophiles, degrading culture, social stigma and medical health issues between teens, as reasons for filing the petition. The petition sought to direct the attention of the court to Tamil Nadu State Information Technology Minister’s statement before the State Assembly, urging the Central Government to ban the TikTok app. To emphasize the instances of menace created by various apps, the petitioner cited 159 deaths in India due to incidents involving selfies. The petitioner also mentioned the steps taken by countries such as Indonesia which blocked the TikTok app for circulation of pornographic and blasphemous content as well as the USD 5.7 million fine imposed on the app by the United States under its Children’s Online Privacy Protection Act (COPPA). The petition doesn't quote any legal provision and it simply relies on conjecture for asking the court to ban the TikTok app.

A quick reading of the order indicates that the court has not relied on prevailing judicial or legal principles on free speech, censorship and intermediary liability in arriving at the said order. Based on one-sided averments, the court has taken recourse to social morality and endorsed the remarkably overbroad language of the petition which says that the app promotes “degrading culture and encourages pornography besides causing pedophiles and explicit disturbing content, social stigma and medical health issues between teens.” The bench goes on to assert that “nobody can be pranked or shocked or being made a subject of mockery by any third party and it would amount to violation of privacy”. The court further affirmed that addictive apps like TikTok spoil the future and the minds of youngsters.

TikTok, an online intermediary that provides a platform for users to create and share short videos, enjoys safe-harbour protection under Section 79 of the Information Technology Act, 2000 (Section 79 provides intermediary platforms like TikTok protection against third-party content on their platforms). The Madras High Court has completely disregarded the dictum of the Supreme Court in the case of Shreya Singhal v. Union of India, wherein the apex court had held that intermediaries enjoy a safe-harbour protection for  third-party user generated content on their platforms. The court had also stated that intermediaries are neutral platforms that cannot judge the legitimacy of the content posted on their website(s).

The order violates the fundamental right of free speech as enshrined under Article 19(1)(a) of the Constitution of India. Several judicial pronouncements such as Romesh Thapar v. State of Madras[fn][1950] S.C.R 594 at 602[/fn], Bennett Coleman & Co. v. Union of India[fn][1973] 2 S.C.R 757 at 829[/fn], and Shreya Singhal v. Union of India[fn]AIR 2015 SC 1523[/fn] have held that freedom of speech and expression is the bedrock of democracy. The grounds for prohibiting the use of the TikTok app does not fall within the purview of Article 19(2) (which provides for constitutional restrictions on free speech), but instead seems to be based on a skewed sense of morality, which cannot be a guiding principle for constitutional interpretation. In the case of Navtej Singh Johar v. Union of India, the Supreme Court had laid down that constitutional morality trumps social morality and ‘it is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism.’

The gag order on media is a classic example of judicial pre-censorship and is against the judgment of the Supreme Court on the issue. The position in common law, as espoused by William Blackstone has been that ‘the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications.’ In 2017, a bench of Justices Khehar and D.Y Chandrachud clarified that pre-broadcast or pre-publication regulation of content was not in the court’s domain.[fn]Common Cause v. Union of India[/fn], The court also said that the role of a court or a statutory authority will come in only after a complaint is levelled against a telecast or publication.

In the case of R. Rajagopal v. State of Tamil Nadu, the court had held that there is no law that authorizes prior restraint. Citing New York Times v. United States, the court observed that "any system of prior restraints of (freedom of) expression comes to this court bearing a heavy presumption against its constitutional validity.”

Though the Madras High court has urged the Government of India to enact a statute like the United State’s COPPA for protecting online privacy of children, it has ultimately banned further download of the application. The court’s order prohibiting the use of the app far exceeds a “proportionate regulatory response” to protect children’s data, as recommended by the Justice B.N.Srikrishna Committee.

TikTok has challenged the order of the Madras High Court before the Supreme Court of India.

The petition and a copy of the order are attached below:

All Posts | Apr 01,2019

Our Comments to DPIIT on the Draft National E-commerce Policy

On 23rd February, 2019, the Department for Promotion of Industry and Internal Trade (“the DPIIT”) released the Draft National E-Commerce Policy (“the Draft Policy”) with the objective to help stakeholders fully benefit from opportunities arising from the progressive digitization of the domestic digital economy and establish a level playing field for all stakeholders in the digital economy.

Though, titled as the ‘National E-Commerce Policy’ the document addresses a wide range of subjects, such as data protection and ownership, cross-border data flow, foreign investment, tax, competition issues, intellectual property and intermediary liability, among other things. These issues affect a number of stakeholders and industries in addition to e-commerce websites and their consumers.

Our comments, inter alia, address issues with the Draft Policy like - jurisdiction of the DPIIT, data ownership and sovereignty, data localisation, intermediary liability and law enforcement access to data. Our detailed comments are as follows: