Intermediary Can't Decide If Online Content Is Defamatory; Duty To Takedown Arises Only On Court Order Or Govt Notification: Kerala High Court

Justice Ziyad Rahman A.A., delivered the judgment in a writ petition filed by M/s Broadcasting Company Pvt. Ltd., a news and current affairs content broadcasting channel.

The petition was filed against “Marunadan Malayali”, a digital news platform who are the 6th and 7th respondents, and Google entities operating YouTube. The petitioners alleged that several videos published on the platform were defamatory and violated their right to reputation under Article 21 of the Constitution.

The petitioners, initially issued a legal notice to Google LLC and other intermediaries highlighting the contents published by the 6th and 7th respondents where, the petitioners required the said respondents to remove the video contents from the links mentioned in the said notice within seven days and also to pay an amount of Rs. 10 crores each as compensation to the petitioners.

In reply to the legal notice, the respondents stated that they do not remove video posting based on allegations of defamation. The petitioners thus sent another legal notice through their lawyer, requiring them to issue an order to pay an amount Rs. 10 crores which has to be recovered from M/s Google LLC and Google India Pvt. Ltd.

Since the above communication did not evoke any response from the authorities, the writ was filed before the High Court. They sought directions to remove the content and compel authorities to take action against intermediaries and digital publishers.

It was also contended that the inaction of the authorities violates various provisions of the Cable Television Network (Regulation) Act, 1955, Information Technology Act, 2000 and the various Rules framed under the said enactment.

The respondents contended that, 'Youtube' is merely a platform, where any person, who is creating an account in the platform, can upload videos, through such account and the same can be accessed on the internet by any users of the said platform. They added that they are not the “originator” of the content under Section 2 (za) of the Information Technology Act, 2000, but they are only an “intermediary” under Section 2(w) of the IT Act.

With regard to blocking or removal of the contents on the allegation of defamatory nature, the respondents submitted that blocking or removal can be affected by an intermediary, only when, a competent Court of law, or a Government agency competent in this regard, issues an order directing them to do so.

The Court thus examined whether an intermediary is obligated to independently assess and remove allegedly defamatory content uploaded by third parties merely upon receiving a private complaint.

The Court examined the relevant statutory provision applicable to the case including Section 2(w), Section 2(za) which defines “Intermediary” and “originator”. The Court also examined the Ethics Code Rules, 2021, which was enacted invoking the powers of the IT Act. The Court noted that Rule 4 of the Ethics Code Rules, 2021, provides for additional due diligence to be observed by the significant social media intermediary.

The Court noted that the sole ground on which the petitioners are seeking removal of the contents published by the respondents 6 and 7 is that those contain certain false information regarding the petitioners and their establishment, which are defaming them before the general public at large.

“Thus, it is a fact that the objection of the petitioners against the publication of the 6th and 7th respondents is on the ground of defamatory nature of the contents. As far as the said ground is concerned, it is subjective, as it varies from person to person. Besides, it depends upon various aspects, truth behind the said content, circumstances under which the same were published, etc.” Court noted.

The Court noted that the 6th respondent are publishing content in their social media platform as news items and information of current affairs, which according to them, is falling within their fundamental right. It further noted that the nature of the social media platform and its functioning, the 4th respondent Google, does not have any role in generating or uploading the contents.

“Therefore, there cannot be any dispute that, the role that is played by the 4th respondent and its subsidiaries, is that of an intermediary, as defined under Sec.2(w) of the IT Act.” Court said.

The Court further noted that Section 79 of the IT Act, contemplated an obligation upon the intermediary to remove the content on happening of two events; firstly, upon receiving actual knowledge, and secondly, on being notified by appropriate government or its agency, as to the unlawful nature of the content.

Relying on Shreya Singhal v. Union of India [(2015) 5 SCC 1], the Court reiterated that the expression “actual knowledge” under Section 79(3)(b) of the IT Act has already been read down by the Supreme Court to mean knowledge arising only through an order of a competent authority; or a notification by the appropriate government or its authorised agency.

The Court, however added that it would not mean that, in all circumstances the intermediary should wait for an order of the Court or notification from the appropriate Government or its agency. It noted that Rule 3 of Ethics Code, 2021 provides the guidelines in this regard.

The Court examined Rule 3 and pointed out that while the original version of Rule 3(1)(b)(ii) included the term “defamatory,” the expression was consciously deleted through the 2022 amendment to the Rules. According to the Court, this legislative change demonstrates that intermediaries are no longer expected to proactively police defamatory content as part of their due diligence obligations.

“The expression “defamatory” was removed from the said provision as per the amendment subsequently brought in, vide G.S.R 794(E) dated 28.10.2022. Thus, the legislature consciously removed “defamation”, from among the matters pertaining to which due diligence is to be observed by the intermediary. From the above it is clear that, the defamation is not something, which needs to be taken note of by the intermediary, while observing due diligence.” Court added.

The Court further added that the removal of 'defamation' from the rules is because, intermediaries are essentially private entities and it may not be possible or proper for them to decide the question whether a content is defamatory or not, since such adjudication requires, consideration of various legal aspects which can only be adjudicated by a court or an authority having competence in this regard.

The Court therefore concluded that defamatory content cannot automatically be treated as unlawful under Rule 3(1)(b)(xi) unless a competent authority first declares it so.

It also noted that under Rule 3(1)(d) of the Ethics Code, it is stipulated that intermediary has to act upon the receipt of actual knowledge in the form of an order by a Court of competent jurisdiction.

“Thus the only conclusion possible in this case is that, apart from the allegations of the petitioners that the contents published by the respondents 6 and 7 are defamatory in nature, there is nothing to show that the petitioners have invoked their remedies available before them, to get the issue as to whether it is defamatory or not, adjudicated, before any competent Court.” the Court held.

The Court also noted that some of the reliefs sought include certain general direction to the Union of India in the matter of regulating the public media platforms. The Court noted that the petitioners have never moved before competent authorities highlighting these aspects and hence they cannot agitate the same before the High Court.

With regard to the relief of compensation, the Court relied on Nilabati Behera v State of Orissa [(1993) 2 SCC 746], where it was held that the compensation is in nature of 'exemplary damages' awarded against the wrongdoers for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation.

“I am of the view that, the petitioners have miserably failed to make out of a case for issuance of writ of mandamus in respect of such directions. Thus, after considering all relevant aspects, I do not find any justifiable grounds to grant the reliefs sought in the writ petition and accordingly, this writ petition is dismissed.” Court held.

The Court while dismissing the writ held that it will not stand in the way of the petitioners invoking civil and criminal remedies against the 6th and 7th respondents.

Case Title: Anto Augustine and Ors v Union of India

Case No: WP(C) 9839/ 2024

Citation: 2026 LiveLaw (Ker) 285

Counsel for Petitioner: A. Kumar (Sr.), Muhammed Firdouz A.V. Libin Varghese, A.H. Sincey, Akhil Philip Manithottiyil, M.P. Shameem Ahamed

Counsel for Respondents: O.M. Shalina (DSGI), Snathosh Mathew (Sr.), Riji Rajendran, Arun V.G. Mitha Sudhindran, Souradh C. Valson, Thejus Thomas Kattady, Anushree, R.S. Diwaagar, Bharadwajaramasubramaniam R., K.R. Syam Sekhar, Neeraj Naryan, Sreekumar. G