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

The Kerala High Court has held that social media intermediaries cannot be compelled to remove allegedly defamatory content unless a competent court or authorised government agency first determines the content to be unlawful.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...

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

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

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