The Delhi High court vide order dated August 10, 2018 passed an ex-parte interim injunction against Facebook, Google and Youtube, directing them to take down/block videos and other content that allegedly contain “slanderous, defamatory and absolutely false statements” about Patanjali Ayurved founder Baba Ramdev.
The order was passed in a suit filed by Patanjali Ayurved and Baba Ramdev against Meera Singh, an ex-employee of Patanjali Ayurved who had been using social media to upload, disseminate and share videos in an allegedly ‘nefarious campaign’ to malign the Plaintiffs’ reputation.
The Plaintiffs moved the High Court after the request to take down the objectionable video was rejected by the Facebook and YouTube in the absence of a court order.
Senior Advocate Rajiv Nayyar appearing for the Plaintiffs submitted before the Court that Facebook, YouTube and Google should have a fair mechanism to take down slanderous and malicious content from their platform upon receipt of a complaint rather than to wait for a direction from a Court in this regard. He further submitted that slanderous, malicious and defamatory videos should not be permitted to be uploaded on the website. He further submitted that by the time an aggrieved party approaches the court for relief, enough irreversible damage is already done by the objectionable content. In case such a mechanism cannot be evolved by the platform providers, they should be barred from uploading videos, it was further argued. He further submitted that in view of the stand taken by these platforms, they should bear the litigation costs of the Plaintiff.
The Court has directed the former employee to refrain from giving interviews on the subject to print, electronic, social media or any other mode of circulation till the next date of hearing. The Court has also summoned the competent officers of Defendants No. 2 to 4 to remain present in the next date of hearing. The matter is next listed on August 23, 2018.
Patanjali Ayurved had earlier in March, 2018 obtained a similar ex-parte interim injunction order against these platforms in relation to a video in Tamil language disparaging of the Atta manufactured and sold by Patanjali under its mark ‘Patanjali.
The submissions made by Mr. Rajiv Nayar goes against the principles laid down in the Shreya Singhal judgement. The Supreme Court in Shreya Singhal v/s Union of India had construed Section 79 of the Information Technology Act, 2000 in such a manner that removal of content online may only occur if an adjudicatory body issues an order compelling intermediaries to remove the content. The said decision shields intermediaries from liability unless they fail to comply with an order directing them to remove the illegal content, rather than merely a private party request. Section 79 of the IT Act provides that safe harbors from liability for online intermediaries could be suspended if the intermediary fails to take down content upon “receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit [an] unlawful act”.
While there may be merit in the argument that platforms should have a fair mechanism to take down defamatory content on receiving complaint rather than wait for a court order, the SC’s decision was passed for this very reason to protect the intermediaries from acting upon millions of such take down requests and to judge which requests are legitimate and which are not.
Having said that, it is indeed a cumbersome and expensive process for individual litigants to knock the doors of the court to have such defamatory content pulled down. However without the Shreya Singhal judgement shielding intermediaries, they would be in a catch 22 situation having to deal either with allegations of over censorship if they remove content without court orders or deal with cases such as these where they choose to remove content only on receiving court orders.
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