Delhi High Court Orders Takedown Of Videos From Justice SK Sharma's Recusal Hearing, Issues Notice To Arvind Kejriwal On Contempt Plea

The Delhi High Court on Thursday (April 23) directed taken down of social media posts containing videos of court proceedings wherein AAP Supremo Arvind Kejriwal and others had sought recusal of Justice Swarana Kanta Sharma. 

The court passed the order in a PIL which also sought contempt action against Kejriwal, other leaders of the party as well as journalist Ravish Kumar for “unauthorizedly” recording and circulating videos of proceedings before Justice Swarana Kanta Sharma on social media.

A division bench comprising Justice V Kameswar Rao and Justice Manmeet Pritam Singh Arora in its order noted Meta's submission that it had taken down some URLs communicated to it by High Court's Registrar General. 

It further noted Google's submission that posts against links from YouTube have not been removed as they don't have recording of court proceedings. This was contested by the petitioner Vaibhav Singh's counsel who said that even those links have proceedings.

The court thus directed:

"We direct Google to take down proceedings at pages 25, 26 of paperbook. It shall also file an affidavit in respect of its stand. Though there is no appearance for X, we note that petitioner has at pages 26 and 27 shown certain links which as per him has recording of proceedings. If that be so, X shall take down proceedings against those links".

Issuing notice to respondent 4 (X formerly Twitter) and other respondents including Kejriwal, the court granted liberty to petitioner to inform respondents 2-4 (Meta, Google, X) that if he finds proceedings on social media, the same be given to them and they will take it down.

Issuing notice to Union Ministry of Electronics and Information Technology the court further noted that Rule 3(1)(b) IT Rules 2021 states that intermediary has as an obligation to take reasonable efforts by itself or to cause users of its computer resource to not host, display, upload, publish, transmit, store or share any information that violates law. 

The Court listed matter for hearing next on July 6.

During the hearing the counsel appearing for the petitioner Vaibhav Singh said that there were Video Conferencing rules governing the court proceedings, which states that unless there is express permission of the court, there cannot be any recording or any publication of court proceedings. 

"There was proceeding on April 13 with respect to recusal application which was recorded without any authority given by concerned court. Not only recorded but published on social media," he said. 

He further submitted that reposting of the proceedings on social media is equivalent to posting and these posts were primarily posted to "scandalise court proceedings". 

The counsel further submitted that the petitioner had also sought to initiate contempt proceedings. He said that only those parts were shared which serve a political agenda, adding there was a larger conspiracy to "share a specific part of proceedings".

Meanwhile the court asked the counsel appearing for Meta which controls both Facebook and Instagram and Google LLC which operates YouTube whether it is  possible to identify who had uploaded the videos for first time. 

To this Meta's counsel submitted there was no mechanism, however the URLs were already available and people were already identified.

The court again asked if the intermediaries can inform as to who are the persons who had uploaded the videos first. To which Meta's counsel responded in the negative. On the other hand Google's counsel said that recording takes place outside its platform.

Meta's counsel said that it had Basic Subscriber Information and Internet Protocol Log and that information can be provided. 

"You either give email or mobile no. We keep that information. Whatever system they would have used, it would have come on IP details. That information can come. That we can give," the counsel added. 

Google's counsel said that High Court's Registrar General had intimated 13 URLs to the intermediary to be taken down. Meanwhile Meta submitted that every time there is publication of "illegal content" the concerned agency communicates to the intermediaries for taking action on the same. 

The court said, "His (petitioner) prayer is to remove all videos, that you can do? He has given details of URL". The court further asked if such direction is issued, will it apply to other similar links as well available on social media platforms. Google's counsel said that it can be removed as and when links are provided. 

To this the court orally asked, "Why there has to be notified? Why cant you do it yourself? We are concerned with the larger interest of the institution. If we don't control this then…"

However Google's counsel said that the moment it gets a URL from the Union of India it takes it down. 

As the court sought to inquire from the Union of India, Additional Solicitor General of India Chetan Sharma said, "Union of India is not a party. Proceedings of High Court can be used in this manner, this brings institution to disrepute". 

Referring to the Information Technology Rules, Meta's counsel submitted that there were are different types of content, wherein there is an obligation under the Rules which the intermediary had performed.

He however submitted that difficulty arises when every a video is circulated, a snippet of the same cannot be captured in DNA technology by the intermediary, thus requiring the law enforcement agencies to inform them of the content. 

"The mechanism is the law enforcement officer or petitioner can tell us and we can take it down immediately. There are multiple videos, we as intermediaries cannot judge that content," Meta said. 

The court however orally said that it was only asking the intermediaries to come back with instructions as to who has uploaded the content for the first time. Pointing to Rule 3(b) of IT Rules, the court further said that "anything that violates law cannot be permitted to be circulated". 

Meanwhile Meta's counsel said, "Today proceedings are broadcasted on Webex. Today we don't have technology which can differentiate the content. How does technology take into consideration whether this video which is showing a hearing is of HC or SC. Because it cannot differentiate, i cannot till it is brought to my notice. There are multiple level mechanisms which look at this. The language is “endeavour.” Because it (technology) is not perfect, we can't do it. We can file a response". 

As ASG Sharma said that there were specific Rules governing High Court proceedings, the court orally said, "Thats what is bothering us. Whoever access to our system, has to give an undertaking that it will not be misused unauthorizedly". 

The court also asked Senior Advocate Arvind Datar appearing for Meta, whether it is technically feasible that every time a video resurfaces on social media, that person has to inform social media platforms to remove it. It asked if there was any feature feasible that whenever such videos are uploaded, they are removed.

Datar however said that as per Supreme Court's decision in Shreya Singhal v UOI, the video has to be through judicial order and the social media platform cannot adopt role of a sensor and say it violates VC Rules.

"It is not feasible to identify that this particular image violates Delhi High Court VC Rules," Datar added. 

The court at this stage asked that when the Rules bar unauthorized recording of proceedings, will anything uploaded and transmitted be termed as unauthorized. 

Responding in the affirmative Datar said, "It will be unauthorized. Which is why we took it down when Registrar General told us". 

The court also orally remarked that when a person joins court proceedings through VC, they have to click on accept button which contains an undertaking that they will not use the proceedings on VC unauthorizedly.

Datar however said that the petitioner's prayer to take down has been complied with by the intermediaries. Noting that the petitioner had also asked for contempt action against several persons, Datar said that Facebook cannot be punished for contempt as it had taken down content the day when the High Court's Registrar General had asked it to. 

He further submitted that the larger issue can be taken up any time by the court, but as of today the content in question had been taken down by the intermediary. 

Datar further submitted that the concern expressed by the bench had been expressed by many judges that can the intermediary pro actively monitor such content. 

Meanwhile the petitioner's counsel said that difficulty is that even if the video from the proceedings are directed to be taken down, the video can resurface and again an order will be required for its take down. 

"We will call for counter affidavit. You (petitioner) will communicate urls to them. If anything is there, you will communicate to them and they will take it down. We will say that these urls of proceedings of April 13 will be taken off" the court said.