from the jurisdiction-fight dept
I’ve mentioned in the past that, from Techdirt’s earliest posts, one key topic is how you handle “jurisdiction” on the internet, since the internet is global, and laws don’t always work that way. Indeed, allowing for global jurisdiction for any particular government’s laws would inevitably mean that the most draconian and the most limiting laws rule around the globe — and that should worry everyone. This is why we’ve been so concerned about rulings concerning “global” blocking of content in places like Canada and the EU. Thankfully, just recently, the Court of Justice in the EU stopped one global application of the EU’s right to be forgotten, and Canada’s attempt got effectively stopped by a US court.
And now we get to see how all this plays out in India, as a court has issued a global blocking order directed at Facebook, YouTube and Twitter. The content in question appears to be a video about a book, Godman to Tycoon that the courts have deemed to be defamatory towards Swami Ramdev, a somewhat controversial “yoga superstar.”
The companies pushed back arguing a variety of points including that the whole case made no sense since the person who uploaded the videos themselves wasn’t even targeted with any lawsuit — and if that person removed the videos, they would be gone worldwide. But, mostly they focused on just how wrong it is to think that an Indian court should be able to control content well outside its jurisdiction (and they point to the rulings in the Canadian and EU cases above, among others, to suggest that it will only lead to embarrassment for the Indian court to try to reach its power too far).
He further submits that a global ban on content ought to be the last resort of the Court. Such an order results in muzzling dissent. Reliance is placed on the Equustek litigation, wherein an order to remove content was passed by the Courts in Canada and when Google brought an action before a US District Court to prevent enforcement of the Canadian Court‟s order, the U.S. Court restricted the application of the Canadian court‟s order only to Canadian territory. Such judgments could severely undermine the dignity of Indian courts if global injunction orders are passed.
The companies also pointed out other problems with the case — including that since no one has determined if the videos themselves are defamatory (just the book the videos may be based on), they shouldn’t be responsible for the content of the videos — and that all of the supposedly defamatory content is public domain as it’s part of the records in the (separate) court case over the book. Another good point raised: the book in question is available globally, and no Indian court could ban the sale of the book outside of India so why is it able to do so regarding a video.
The court… doesn’t seem to care much about any of that. It says it doesn’t matter that the videos haven’t been carefully reviewed for defamation since they’re about the book that has already been deemed defamatory:
The said video clearly claims to be a summary of the book – ‘Godman to Tycoon – The Untold Story of Baba Ramdev’. The publishers of the book are mentioned. The video is also conscious of the fact that the book has been banned w.e.f. 11th August, 2017, which appears to be the date of one of the orders passed in the litigation between Plaintiff No.1 and the publisher. Interestingly, the video claims that the views in the video are of those of the author of the book and that the video channel itself has no relationship with the views expressed therein. Thereafter, the video proceeds to give a summary of the book
As for the issue of geoblocking… the court’s reasoning is… odd. It relies heavily on the fact that the content was uploaded from India. There’s a very legalistic attempt to interpret the current intermediary liability laws in India (around pages 66 to 68) in which it more or less concludes that because the law says that platforms are required to “expeditiously remove or disable access” to the content in question, that applies globally — because the issue is “the material” and not the location of the viewer of the material.
Thus, if any information or data has been uploaded or is residing in a computer resource i.e. a computer network, the information or data which has to be removed or disabled from that very computer resource or network. The computer resource in the initial part of the Section is the same computer resource as used in the later part of the Section. The latter resource cannot be a sub-set or a species of the former. It has to be the entire computer resource which was initially connected when the uploading of the information or data took place. Thus, if an information or data has been uploaded on a computer network, the platforms would be bound to remove it and disable it from that computer network completely. Any other interpretation of Section 79(3)(b) would not give proper meaning to the use of the words “that material” and “that resource”.
From there, it highlights the fact that the content was uploaded from India as giving the court jurisdiction beyond India.
The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.
Thus, if uploading of data which the Court considers defamatory or offensive has taken place from IP addresses located in India, then Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material, from the computer network of these platforms on to which the said information and data has been replicated. The material/information having originated from India, courts in India would have jurisdiction to direct removal of the same. After uploading of the data or information if the same has been replicated or disseminated or stored in different servers/computers in different geographical locations, the same would not mean that Courts would lose jurisdiction on the same, as the data/material/information was uploaded from India, in the first place. So long as the uploading from India led to the data or information ‘residing in’ the network or being ‘connected to’ the network, the same ought to be disabled or blocked globally. Any other interpretation of Section 79 would result in reducing the efficacy of the provision which equates the computer resource which initially created the information and the resource from where it is to be disabled or removed.
If you squint, you can kinda maybe see the logic there if you ignore basically all of the problems it would then create. But, alas, the court says if the videos are uploaded from India and made available globally, they can be taken down globally from India as well:
Removal or disabling of access under Section 79(3)(b) of information or data uploaded from India is not restricted as meaning removal or disabling or access only to users located in India. The removal or disabling is linked with “that resource” and not with the location of the user or viewer. Thus, geo-blocking as is being suggested by the platforms would not be in consonance with Section 79 or with the purport and intent of the Supreme Court….
There’s also a weird bit in which the court says that because all of these platforms have terms of service that let them takedown content, there’s no real problem with requiring them to take it down globally. How would that play out if platforms didn’t put that in their terms of service? Or if someone uploaded the same content from outside of India? It’s not at all clear.
Thus, the policies of these platforms permit them to block and disable access in terms thereof. It is not disputed that blocking and disabling access when the platforms do it voluntarily is on a global basis.
As Stanford intermediary liability expert Daphne Keller notes on Twitter, don’t be surprised when more countries start demanding global blockages of content. She also points a finger at everyone (*cough* Hollywood lobbyists *cough*) who insisted that the EU and Canada should be able to block globally because those places “have the rule of law,” so such processes wouldn’t be abused (don’t laugh — this was argued). But, of course, China, Iran, Russia, Turkey and lots of other countries who sure would like to censor critics would insist that they, too, “have the rule of law.”
I’ve often been told that it is OK for EU countries to require filtering, global takedowns, etc. because they “have the rule of law” & won’t abuse their power. It would be nice to have a list of which countries count as “rule of law” countries for purposes of that logic.
— Daphne Keller (@daphnehk) October 23, 2019
As Keller notes, this is almost certainly just the beginning of US companies having to deal with these kinds of blockade demands around the world. And, don’t be at all surprised when China, Iran, Russia, Turkey and the like all point to the courts in Canada, the EU and now India as evidence for why the US companies need to obey.