In a case filed by Amul for removal of the "defamatory content" targeting it on social media and video-sharing site Youtube, Google LLC has told the Delhi High Court that it cannot disclose the Basic Subscriber Information (BSI) of a Youtube user whose details are stored with Google Ireland.
With Google Ireland also refusing to disclose the information without following "of a legal process through Irish Courts or by way of a Letters Rogatory through the Government", the high court has sought a response from the union government on the issue.
Justice Prathiba M. Singh in the order dated November 21 asked a counsel representing the Centre to obtain instructions regarding existence of any 'Mutual Legal Assistance Treaty' between India and Ireland, and also regarding any recent developments on data protection laws in India.
In its suit seeking deletion of the online defamatory content, Gujarat Cooperative Milk Marketing Federation Limited - the owner of the Amul brand, in April filed an application seeking impleadment of a Facebook user and Google LLC. The application alleged that the original video has been re-shared on Facebook and Youtube.
While Facebook agreed to share the BSI relating to the Facebook profile of one Pratul Hora, Google LLC told the court that details of the uploader 'WIDEOPEN' are available with Google Ireland. The court in its May 13 order directed Google Ireland to submit a response and also clarify regarding its exact legal status whether it is a subsidiary of Google LLC.
On November 21, Google LLC told the court that access to the Youtube video has been blocked in India but since the person uploading the video was not based in India, the BSI details are not available with it.
"Hence, Google LLC is unable to disclose the required BSI details of M/s. WIDEOPEN as the same are stored with and are under the control of Google Ireland, which is subject to the laws of Ireland, as also, the General Data Protection Regulation (GDPR)," the court recorded in the order.
Senior Advocate Arvind Nigam, representing Google Ireland, argued that it is bound by Article 48 ofGDPR which states that any court or administrative order of a third country for access to personal data "may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter."
Nigam also referred to the Foreign Tribunals Evidence Act, 1856 (Ireland) and Order 39 Rule V of the Superior Court Rules (Ireland).
"A conjoint reading of Article 48 of GDPR, the Foreign Tribunals Evidence Act, 1856, and the Superior Court Rules (Ireland), shows that the only manner in which the BSI details of M/s. WIDEOPEN can be obtained currently, pursuant to the orders of an Indian Court, would be either by means of a legal process through Irish Courts or by way of a Letters Rogatory through the Government," the senior counsel submitted, adding that in the absence of a 'Mutual Legal Assistance Treaty' between India and Ireland, there is no other procedure to obtain the said data.
However, the counsel representing Amul referred to Neetu Singh & Anr. v. Telegram FZ LLC & Ors to argue that since the video is admittedly controlled and managed by Google LLC, the relevant data ought to be disclosed by Google LLC.
The court will consider the Centre's response on February 09, which is the next date of hearing in the matter.