SWAMI RAMDEV &ORS.versus FACEBOOK, INC. &ORS. – CASE OF GLOBAL INJUNCTION UNDER THE LENS

With social platforms becoming as quintessential to one’s daily life as a routine course of a meal, these platforms have morphed from mere modus of social interactions to an indispensable source of information, discussion and, more significantly for corporations/public figures, advertising and promotion. The expanse of technology has blurred the confines of geographical boundaries. This, in turn, brings forth new issues for the laws to address. In Swami Ramdev & Ors. Vs Facebook,  Inc. & Ors [1]., the Delhi High Court took to examine the characteristics and viability of a global injunction, particularly with respect to the role of intermediaries under Section 79 of the Information Technology Act, 2000

Background
The main cause of the Plaintiff’s grievance stemmed from the book titled ‘Godman to Tycoon the Untold Story of Baba Ramdev’, published by M/s. JuggernautBooks Private Limited. Alleging that the contents of the book were defamatory, derogatory and affected the character of the plaintiff by tarnishing/maligning the reputation/image of Swami Ramdev, the Plaintiff sought to restrain the publishers and the author from publishing and selling the book. The dispute came before the Delhi High Court in Swami Ramdev Vs Juggernaut Books Pvt. Ltd. &Ors.[2] (‘the Juggernaut Decision’). The Ld. Single Judge, vide judgment dated 29.09.2018, restrained the publisher and the author from publishing, distributing and selling the book without deleting the offending portions.

The findings of the Juggernaut decision were challenged before the Supreme Court of India, which is currently pending without any stay on the order. The present dispute under review had arisen due to the dissemination of various remarks and information, including videos, over the Defendants’ platforms, which the Plaintiff alleged were actually contained or based on the said book and had already been held to be defamatory by the Delhi High Court in the Juggernaut decision. The Defendants, which included various social media platforms, namely Twitter International Company, YouTube LLC, Google Inc. and Facebook Inc., complied with the Ld. Judge’s interim order[3] and removed the concerned URL and web-links for the India domain. However, the Defendants opposed the imposition of any order of global blocking of the videos/content.

The Plaintiffs placed reliance on the Supreme Court decision in Shreya Singhal vs Union of India[4], to argue that the Defendants by virtue of the Juggernaut decision, as intermediaries, were bound to comply with the directions and remove the content globally. Identifying the relevant provisions under the Information Technology Act, 2000[5] (hereinafter referred to as ‘the Act), the Plaintiffs argued that the Court could, in such cases, exercise extraterritorial jurisdiction and impose a global injunction. The Defendants’ submissions in response can be summed up as follows:

1. Laws with respect to defamation and interpretation of public interest vary across jurisdictions and a global disabling order would be contrary to the principle of comity of Courts and would result in a conflict of laws.
2. Relying on the preservation of freedom of speech and expression on the internet, the Defendants argued that the facts do not merit an extreme measure of a global injunction, inasmuch as the imposition of a global ban would result in muzzling dissent.
3. The Court should impose measures, commensurate to the danger or damage alleged and should resort to global injunction only in exceptional cases. Moreso since the interests of the Plaintiff, in the present case, was preserved by removal of the alleged content on a national level, where the Plaintiff enjoys a significant reputation, a global injunction was unwarranted. It was also contended that the Plaintiff being a public figure, should be open to criticism.
4. Further, not having impleaded, either the publisher or the persons who have uploaded the video, the Plaintiff was guilty of misjoinder/non-joinder of necessary and proper parties.

Misjoinder/ Non-Joinder of parties
The Court addressed the arguments on non-joinder of the parties in two categories, firstly, non-impleadment of the publisher and author of the book; secondly, non-impleadment of the persons who have uploaded the impugned videos, on the basis of Basic Subscriber Information(hereinafter ‘BSI’) relating to the uploading of the videos.
The Court dismissed the objection in respect of the first category, holding that, insofar as the present case was concerned, the book or contents thereof, were not directly in issue. Rather the issue, with respect to the book, had been adjudicated by the High Court in the Juggernaut decision. The bone of contention in the present case was with respect to the offending video and other related content, which, admittedly, were derived from the book and had been uploaded on various links on the Defendants’ platforms. On the second category, the Ld. Judge held that the information, as available through the subscriber information, was cryptic and the Plaintiffs had no way of ascertaining the details or identity of the concerned individual. On the basis of the BSIs, the Plaintiffs would have to make detailed enquiries and investigations to trace the details of the subscribers, therefore, at the initial stages, the challenge cannot undermine the maintainability of the suit.

Whether a case of defamation was made out
The Ld. Judge observed that it was common ground that the contents of the video were based on the book or were summary of the book itself. Accordingly the Ld. The judge held that being bound by the order of the Court in the Juggernaut decision, the publication of the impugned material was in violation of the said judgment. Therefore, whether or not the content of the video was defamatory in nature was not an issue in the present case.

Global Injunction
While the Defendants complied with the imposition of a national level injunction or ‘Geo-blocking’, the Defendants’ opposition required the Court to delve into a subject of significant import in assessing the grant of a global injunction. Geo-blocking or geographical blocking refers to the blocking of content from country to country or region to region. The grievance, therein, lies on the basis that the content would as such be available on the platforms of other countries, accessible in other countries, perhaps even in the regions under injunction by use of various applications. Comparing the laws of various jurisdictions, the Ld. The judge examined the leading decisions on the issue:

Equustek Solutions Inc.[6]
The Supreme Court of British Columbia (Canada) addressed a similar issue when Google Inc. sought to challenge the order of the Court of Appeal for British Colombia (‘Equustek Solutions case’). Similar to the present case, Google had indicated that the injunction if it were to be granted, should be nationally restricted and limited to Canada. The Court discussed that by not de-indexing the impugned websites, globally, the manner in which the Google’s search engine operates, would still allow users to access different Google websites directed at other countries by using the specific Uniform Resource Locator or URL, for those sites.

Thus, potential Canadian customers could find the impugned content despite the restriction imposed and the proposed national de-indexing did not have the necessary protective effect. Based on the foregoing, the Court rejected Google’s contention that a global injunction would result in the violation of international comity or that Google’s compliance with such an order would cause them to violate the laws of other jurisdictions, holding that the contentions were only theoretical. It was further added that it was open for Google to approach the Court should the latter situation arise. Therefore, the Court held that the only way to ensure that the interlocutory injunction attained its objective was to impose such a restriction in forums where Google was operational, thus, by way of a global injunction.

European Union
In Google LLC vs Commission Nationale de l’informatique et des Libertés (CNIL)[7]the European Court of Justice addressed CNIL’s challenge that Google’s geo-blocking was insufficient to curb the concerning violations. Reiterating the same concerns as were posed in Equustek Solutions’ case, the Court observed as follows:
…In a globalised world, internet users’ access — including those outside the Union — to the referencing of a link referring to information regarding a person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself.

58. Such considerations are such as to justify the existence of competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out when granting a request for dereferencing made by such a person, a de-referencing on all the versions of its search engine[8].

With the aforesaid observations, the ECJ noted that EU laws did not direct for de-referencing to be granted towards all versions of the search engine in question, in other words, the grant of a global injunction was neither specified nor condoned. However, it was left open for the Member States to weigh the considerations in the light of national standards of protection of fundamental rights and direct the concerned operators for such global de-referencing, where it deemed appropriate.
Information Technology Act, 2000 and the Indian scenario
Identifying the findings of the Supreme Court in the case of Shreya Singhal, the Ld. The judge noted that the intermediaries were not required to apply their own minds and upon a Court order, the intermediaries had an obligation to remove the content. The Ld. Judge further notes that the Indian position in respect of global injunction was not settled. However, the provisions of the Act are instructive in this regard, inasmuch as they allow the Courts to exercise extra territorial jurisdiction. The Ld. Judge identifies the concerned provisions to uphold the validity of global injunction and the findings can be briefed as follows:

1. The intermediaries are duty-bound to expeditiously remove or disable access, upon receiving a Court order, to content or information that falls afoul of the categories as encompassed under Rule 3(2) of the Information Technology (Intermediaries guidelines) Rules, 2011, failing which the intermediaries will be ousted from taking the safe harbor exemption[9].
2. Taking note of the definition of computer resource and reading it with section 79 of the Act, the Court held that the definition encompasses a global computer network and that the removal and disablement were connected to the information that is uploaded and the system upon which it is uploaded, where it resides.
3. On the basis of the said observations, the Court holds that the act of uploading vests jurisdiction in the Courts where the uploading takes place. Thus, the act of uploading, if within the territorial jurisdiction of the Courts, which leads the material or data to reside on a network and, consequently, on the global platform, would equally render the concerned platforms liable for the removal or disabling of the concerned content.
4. The Court further ruled that the terms access[10] and removal and disabling of access[11] were not restricted only with respect to users in India. Therefore the Court concluded, by virtue of the long-arm statute as under the Act, that so long as either the uploading takes place from India or the information/data is located in India on a computer resource, Indian courts will have the jurisdiction to order for the global injunction.

Remarks

The Ld. Judge distinguished the referred cases in terms of different facts; however, it is worth mentioning that the Court was conscious that there are reasonable concerns with respect to the enforceability of such global injunction orders in parallel jurisdictions. The Ld. Judge did take note that the order of the Canadian Court of Appeals, which was the subject of the Equustek Solutions case before the Supreme Court of Canada, was also agitated before the United States District Court in the northern district of California[12]. Google had sought a declaratory judgment that the order was not enforceable against them in the United States. The US District Court, while granting preliminary relief in favour of Google, held that the findings of Canadian Court of Appeals would result in Google being deprived of the benefits of the US Federal Laws that protect free speech on the internet.

Being mindful of the order, the Supreme Court of Canada in Equustek Solutions case, validated a global injunction on the ground that while the findings of the US Court had the effect that the order could not be enforced before the US Courts, the Canadian courts still had the ability to protect the integrity of its own process through orders directed to parties over whom (the Canadian courts) had personal jurisdiction.

While the observations leave the question of enforceability open and subject to the appreciation of Courts in parallel jurisdictions, it can be drawn that an order of such nature may be enforced in India through such entities over whom the Indian Courts may exercise jurisdiction. In cases of conflicts, as was offered by the Supreme Court of Canada in Equustek Solutions case, the intermediary may set out as to how the injunction order may render it to violate laws of another jurisdiction and, accordingly, seek variation of the order. This, again, would be a factual analysis which leaves the larger findings undisturbed. Nevertheless, the possibility of conflict and the manner in which the orders will be enforced still depends on an appreciation of principles by parallel courts.

The Ld. Judge’s findings drew strength from the decision in YouTube v. Geeta Shroff [13]wherein the Single Judge of Delhi High Court had granted a global injunction,again, in respect of offensive posts. The imposition of global injunction, with the growth of technology, needs a delicate approach lest it tramples the very principle upon which the internet was conceived with, i.e. freedom of speech and expression. While a global injunction would appear to be the ultimate remedy to ensure the effectiveness of injunction orders, the imposition must be weighed with the subject matter. Subjects like intellectual property laws, being territorial in nature, must merit a higher scrutiny to draw injunctions of global nature and the discussed decisions may in fact serve as an impetus to the use of this principle in other subject areas.

1.  CS (OS) 27/2019; Reported in 263(2019)DLT689
2. Swami Ramdev Vs Juggernaut Books Pvt. Ltd. &Ors.andSwami Ramdev Vs Priyanka Pathak Narain&Ors. CM(M) 556/2018 & CM APPL. 19354/2018 and CM(M) 557/2018 & CM APPL. 19356/2018; Collectively reported in MANU/DE/3565/2018
3. CS (OS) 27/2019 order dated 21.01.2019
4. 218(2015)DLT370(SC)
5. Section 2(1) and Section 75 of the Information Technology Act, 2000 (“I.T. Act”)
6. Google Inc. vs Equustek Solutions Inc. &Ors. [2017] 1 S.C.R. 824
7. Case C507/17Google LLC vs Commission Nationale de l’informatique et des Libertés (CNIL) Para 57, 58
8. ibid
9. Section 79 of the I.T. Act
10. Section 2(a) of the I.T. Act
11. Section 79(3) of the I.T. Act
12. Google LLC v. Equustek Solutions Inc., et al, United States District Court, Northern District of California, San Jose Division, case No. 5:17-cv-04207-EJD, December 14, 2017
13. FAO 93/2018; Delhi High Court

Afzal B. Khan

Mr. Khan is an integral part of the litigation team. He also handles matters before the IPAB (Intellectual Property Appellate Board) and the Trade Marks Office. He is involved in enforcement actions before the Customs Office. He also takes interest in spreading IP awareness amongst the younger audience.

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