S.79 IT Act | YouTube Can't Be Directed To Remove Alleged Objectionable Video In Absence Of Court Order Declaring It 'Defamatory': Kerala HC

The Kerala High Court has held that YouTube, being an intermediary cannot be directed to remove an allegedly objectionable video without an order from the Court finding that the alleged video was defamatory in nature.The Court reached the above conclusion by relying upon the landmark judgment in Shreya Singhal v Union of India and perusing Section 79 of the Information Technology Act, 2000. It also observed that to make out a case for removal of content under Section 69A, there must be specific allegations that the video violates reasonable restrictions set out in Article 19 (2) that would justify its removal by the intermediary.Justice T R Ravi observed,“In view of the categoric pronouncement by the Hon'ble Supreme Court (Shreya Singhal v Union of India), the direction sought against respondents 6 and 7 (YouTube) cannot be granted for removal of the alleged objectionable video, so long as there are no orders of the Court finding that the material in question is defamatory. The content that has been uploaded also does not fall within the scope of Section 69A of the Act since it is not alleged to be something affecting the sovereignty and integrity of India, the defence of India, the security of the State, or friendly relations with foreign States. Apart from alleging that the material is defamatory, there is no specific allegation that it amounts to incitement to the commission of any cognizable offence relating to the earlier mentioned aspects like sovereignty and interest of India, etc.”The petitioner had approached the Court seeking aggrieved by a video posted on YouTube. It is alleged that the video was defamatory to the Marthoma community and their Bishop. It is also alleged that the video was scandalous and could create a rift between believers, causing breach of peace and law and order. The petitioner submitted that he had filed a complaint with the Resident Grievance Officer for YouTube Google under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and with the Principal Secretary of the IT Department. Aggrieved by the inaction of authorities in removing the video, the petitioner has approached the High Court seeking a direction to YouTube to consider his complaint. The petitioner alleged that YouTube being a social media intermediary has failed to regulate the contents that are uploaded. It was alleged that uploading of objectionable videos was also violative of user agreement and YouTube community guidelines. It was stated that the Central Government could have blocked the YouTube video as per Section 69A of the Information Technology Act, 2000. The YouTube informed the petitioner that videos cannot be removed based on allegations of defamation and that they were ready to comply with orders of the Court. Relying upon Shreya Singhal vs. Union of India (2015), it was argued that YouTube is only an intermediary and they cannot become an arbiter of the content made available on YouTube. Referring to Shreya Singhal case, the Court observed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. It stated that Section 69A can only be resorted to when the central government is satisfied that the video affects India's sovereignty and integrity, defence, security of State, friendly relations with foreign States, public order, or to incite the commission of any cognizable offense.Court stated, “Regarding Section 69A, the Court held that, unlike Section 66A, Section 69A is a narrowly drawn provision with several safeguards, that blocking can only be resorted to where the Central Government is satisfied that it is necessary to do, that such necessity is relatable only to some of the subjects set out in Article 19(2) of the Constitution of India and that reasons have to be recorded in writing in the blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution of India.”Section 79 exempts the liability of intermediaries in certain cases. The Court underlined that in Shreya Singhal, Section 79(3)(b) was also read down to mean that intermediaries are to take down third-party content upon receipt of either a court order or a notice by appropriate government authority and not otherwise.The Court stated that this was necessary because without it intermediaries like Google, Facebook, and others would face difficulty to assess the legitimacy of the numerous requests that they receive for the removal of videos. Court added, “This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”As such, the Court held that there was no order of the court finding that the video was defamatory. In such cases, the Court observed that YouTube cannot be directed to remove it. Accordingly, the writ petition was dismissed. ...

S.79 IT Act | YouTube Can't Be Directed To Remove Alleged Objectionable Video In Absence Of Court Order Declaring It 'Defamatory': Kerala HC

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