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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 29th May, 2019
Date of decision : 23rd October, 2019

+

CS (OS) 27/2019
…...Plaintiffs

SWAMI RAMDEV & ANR.
Through:

Mr. Darpan Wadhwa, Sr. Advocate
with Mr. Simranjeet Singh, Mr.
Rohan Ahuja, Ms. Sonali Dhir, Mr.
Aadhar Nautiyal and Ms. Cauveri
Birbal, Advocates (M: 9205109664).

versus
FACEBOOK, INC. & ORS.
Through:

.... Defendants
Mr. Parag P. Tripathi, Sr. Advocate
with Ms. Richa Srivastava, Mr.
Aditya Nayar, Ms. Mishika Bajpai &
Ms. Nayantara Narayan, Advocates,
for D-1.
Mr. Arvind Nigam, Sr. Advocate with
Mr. Mehtaab Singh, Mr. Prathishth
Kaushal, Ms. Shruttima Ehersa & Ms.
Sakshi Jhalani, Advocates for D-2&3
(M-8814048526)
Mr. Sanjeev Sindhwani, Sr. Advocate
with Mr. Deepak Gogia & Mr. Jithin
M. George, Advocates for D-5 (M9971766556)

CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
I.A. 855/2019
1.

The Plaintiffs – Swami Ramdev and Patanjali Ayurved Ltd. have filed

the present suit against the Defendants- Facebook Inc., (Defendant No. 1)
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 Google Inc., (Defendant No. 2) YouTube LLC, (Defendant No. 3) Google
Plus, (Defendant No. 4) Twitter International Company, (Defendant No. 5)
and Ashok Kumar (`John Does‟), (Defendant No. 6) seeking a permanent
and mandatory injunction, as also damages. For the sake of convenience, the
Defendants and their various websites, social media platforms, URLs,
weblinks etc., are collectively referred to as ―Platforms‖.
2.

The allegation of the Plaintiffs is that various defamatory remarks and

information including videos, based on a book titled ‗Godman to Tycoon –
the Untold Story of Baba Ramdev‘ are being disseminated over the
Defendants‟ platforms. The Plaintiffs submit that the defamatory content
contained in the said book was subject matter of a judgment passed in CM
(M) 556/2018, wherein a ld. Single Judge of this Court had restrained the
publisher and author from publishing, distributing and selling the book
without deleting the offending portions. The allegations contained in the
videos, which have been uploaded on the Defendants‟ platforms are in fact
the defamatory allegations contained in the book which have already been
directed to be removed. The said judgment was challenged by the publisher
before the Supreme Court and the same is pending. It is however submitted
that there is no stay of the order/judgement.
3.

The suit was listed on 21st January, 2019, on which date, notice was

directed to be served on the Defendants. On 24th January, 2019, after hearing
ld. Counsels for the parties, the following order was passed:
“6.
A perusal of the transcript of the video shows
that similar allegations as contained in the offending
portions of the book which were directed to be deleted,
are also contained in the video. The said judgment has
been appealed against in the Supreme Court. However,
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 there is no stay as per the Ld. Counsels for the
Plaintiffs. Considering that the allegations made are
similar to the allegations which were directed to be
deleted by the said order, a prima facie case is made
out for grant of injunction. Balance of convenience is
in favour of the Plaintiff and irreparable injury would
be caused if the interim order as prayed for is not
granted. The Ld. Senior Counsel for the Defendants 13, submit that the Defendants are willing to block the
said URLs/disable them from the India domain. Till the
next date, the Defendants are directed to
remove/block/disable the URLs and weblinks
connected to the offending video for the India domain.
The URLs are mentioned at pages 19 to 24 of the
documents filed by the Plaintiff. The blocking/disabling
be given effect forthwith and, in any event, no later
than 72 hours.
7. The question as to whether the said URLs also
deserve to be blocked globally, would be heard on the
next date. A short reply on this issue be filed by the
Defendants within two weeks.
8. The basic subscriber information for the
entity/person/s, which/who has uploaded the said video
be placed in a sealed cover.‖
Thus, an interim order was granted directing removal of the offending URL
and weblinks for the India domain. The platforms submitted that insofar as
global blocking of the videos is concerned, they wish to make submissions
on this issue. The above order of injunction continues to operate and parties
have been heard on the issue of global blocking.
4.

Thereafter, the platforms have placed on record the Basic Subscriber

Information (hereinafter ‗BSI‘) relating to the uploading of the videos.
Pleadings have also been completed by the parties. On 23rd May, 2019,
while the matter was part heard, the Court had directed the platforms to seek

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 instructions in respect of the following:
―(i) Whether the identity of a person uploading the
video is shown on YouTube at the beginning or end of
the video and if not —for what reason?
(a) Can any video which is uploaded on YouTube be
edited by YouTube?‖
On 5th April, 2019, in view of the technical submissions made, the parties
were directed to keep one technically qualified person to be present in Court
during the arguments. On 28th, May, 2019, ld. Counsel appearing for
Defendant No. 2- Google Inc. was also directed to clarify as to in what
manner geo-blocking is effected on the YouTube platform.
5.

Pursuant to the orders passed by the Court, some written notes have

been placed on record by Facebook, Google LLC and Twitter in respect of
geo-blocking. The note filed by Facebook was referred to during oral
submissions. The remaining defendants have however filed the same only
along with their written submissions and no reference was made during
arguments to the same. For the sake of completeness, the same are however
being considered.
6.

None of the Defendants have any objection to blocking the URLs and

disabling the same, insofar as access in India is concerned. However, all the
Defendant platforms have raised objections to removal/blocking/disabling
the impugned content on a global basis. On the other hand, the Plaintiffs
argued that blocking merely for the Indian territory alone is not sufficient as
the content would be accessible through international websites, which can be
accessed in India. Thus, according to the Plaintiffs, for the remedy to be
effective, a global blocking order ought to be passed.
7.

It is on the question or whether geo-blocking is sufficient, under these

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 circumstances, that counsels have primarily addressed the Court. Further,
none of the Defendants have any objection for blocking the URLs for the
territory of India i.e., the India domain.
Submissions on behalf of the Plaintiff
8.

On behalf of the Plaintiffs, Mr. Darpan Wadhwa, ld. Senior Counsel

submits that if a defamatory article, book or any other content is printed or
published, then the publisher of the same is liable for defamation. The
Defendants are seeking protection under Section 79 of the Information
Technology Act, 2000 (hereinafter ‗the Act‘) on the ground that they are
intermediaries. Since they claim that their role is that of passive
intermediaries, they are bound to follow the due diligence required under
law. As per the judgment in Shreya Singhal v Union of India AIR 2015 SC
1523, the phrase “actual knowledge” in Section 79 is a Court order, thus,
once the Court passes an order, they are bound to disable the content
globally and cannot raise objections to the geographical extent of
implementation of the injunction. It is Mr. Wadhwa‟s submission that if the
Defendants claim that they do not have an obligation to comply with the
orders of the Court, then they are no longer entitled to safe harbour under
Section 79 of the Act. He relies on the definitions of “computer resource”,
“computer system”, “computer network” and “data” in Sections 2(1)(k),
2(1)(l), 2(1)(j) and 2(1)(o) respectively to submit that the Act does not
provide that the blocking has to be restricted to the territory of India. Thus, a
Court of competent jurisdiction can pass effective orders directing global
blocking. He further submits that an intermediary‟s role cannot be to
adjudicate as to whether the content is defamatory or not, but to remain

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 passive and obey the orders of the Court. An intermediary cannot argue on
behalf of the person who has uploaded the content. It is submitted that the
harm that is being caused by continued accessibility to the content is
irreparable to the Plaintiffs, whereas there is neither any inconvenience nor
harm caused to the Defendants if they are to effect global blocking. The
platforms have the technical capability to carry out such blocking.
9.

Mr. Wadhwa further submits that under the Information Technology

(Intermediaries Guidelines) Rules, 2011 (`2011 Rules‘) it is not for the
intermediaries to decide what is defamatory. They are to merely follow the
law, including orders of the Court. They have to appoint a grievance officer
to take care of the users‟ grievances. The Plaintiffs cannot be forced to avail
of legal remedies in every country to ensure that content is taken down. That
would be a very high order, inasmuch as it would make the remedy granted
by this Court completely ineffective.
Defendants’ submissions
10.

On the other hand, it is submitted by Mr. Parag Tripathi, ld. Senior

Counsel appearing for Facebook – Defendant No. 1, that no effort has been
made by the Plaintiffs to implead the persons whose details have been
provided in the BSI. He relies upon the judgments in Google Inc. v
Equustek Solutions, Robert Angus and Clarma Enterprises Inc1
(hereinafter, “Equustek-I”) and Google LLC v Equustek Solutions Inc., et
al. (hereinafter, “Equustek-II”)2 and submits that the question as to what
1

Google Inc. v Equustek Solutions, Robert Angus and Clarma Enterprises Inc 2017 SCC 34 (Supreme
Court of Canada)
2
Google LLC v Equustek Solutions Inc., et al, United States District Court, Northern District of
California, San Jose Division, case No. 5:17-cv-04207-EJD, December 14, 2017

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 constitutes defamation differs from country to country. For example, in the
U.K., the onus is upon the Defendants to show that the content is not
defamatory. However, in the U.S., the onus on the Plaintiff in a defamation
action is very high. Defamation laws differs from jurisdiction to jurisdiction,
and therefore, passing of a global disabling order would be contrary to the
principle of comity of Courts and would result in conflict of laws.
11.

Mr. Tripathi further submits that the issues raised could have far

reaching impact, and Section 79 of the Act is a work in progress.
Dissemination of views on the internet is an essential ingredient of freedom
of speech and expression and the integrity of national judicial systems has to
be maintained. In fact, the injuncted book is itself available on various
platforms internationally, which itself shows that the injunction has to be
restricted to India alone. Plaintiff No.1, being a public figure, should be
open to criticism. He submits that an injunction would not be liable to be
granted inter alia on the following grounds:
i) The main Defendants i.e. the persons who have uploaded the video
have not been impleaded;
ii) Though the Court has jurisdiction to pass a global injunction order,
which is clear from a reading of Articles 244 and 246 of the
Constitution, which provide for implicit long arm jurisdiction, the
Court ought to be reluctant to pass a global blocking order;
iii) In order to ensure that access is disabled, the platforms have
resorted to geo-blocking which is more than sufficient to take care of
the Plaintiffs‟ interests;
iv) The Plaintiffs have not brought on record any evidence to show as
to whether anyone has viewed the content globally;
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 v) There are no extreme circumstances, that require a global
injunction order to be passed;
vi) The order to be passed by the Court has to be proportionate to the
danger or harm that is alleged. There is greater harm in passing a
global injunction order in such circumstances;
vii) The publisher of the book has also not been impleaded in the
present case and no effective order can be passed in the absence of the
publisher;
viii) The Defendants are intermediaries and cannot be compelled to
run foul of the law in jurisdictions such as the U.S. where they are
headquartered.
12.

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. He relies upon the
judgment of the Supreme Court of New York County in Ajitabh Bachchan
v India Publications 154 Misc. 2d 228 (N.Y. Misc 1992) decided on 13th
April, 1992 to support this argument. Further reliance is placed on the
judgment of the Supreme Court of New South Wales in Macquarie Bank
Ltd. & Anr. v. Berg [1999] NSWSC 526. Reliance is also placed on the
opinion of the Attorney General of the Court of Justice of the EU given in
the case of Google Inc. v. CNIL Case C-507/17. Since public interest differs
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 from one country to another, an Indian court‟s perception of public interest
ought not to bind other jurisdictions. He further submits that the right of
freedom of speech and expression in India ought to be at least as much as in
the U.S., and the principles of territoriality ought to be applicable in these
cases. A decision of the Sao Paulo State Court of Appeal, Brazil in Twitter
Brasil Rede de Infromacao Ltda v. Tim Cellular S/A, Interlocutory Appeal
No. 2055830-58.2016.8.26.0000 is relied upon in support of the principle of
territoriality. Reliance is also placed on an article written by Marc P. Epstein
published in the Fordham Law Review titled Comity Concerns Are No Joke:
Recognition of Foreign Judgments Under Dormant Foreign Affairs
Preemption3 which severely criticized what was termed as “libel tourism.”
Further reliance is also placed on a publication by Alex Mills titled “The
Law Applicable to Cross-Border Defamation on Social Media: Whose law
governs free speech in ‗Facebookistan4‘ published in the Journal of Media
Law, wherein the author raises the question as to whose laws govern free
speech on social media platforms. It is argued that if orders can be passed by
national Courts which would result in global removal of content, then law of
free speech on internet would be reduced to the lowest common
denominator.
13.

Mr. Tripathi also cites the order of this Court dated 14th January, 2019

in Sasikala Pushpa v. Facebook & Ors. CS (OS) 510/2016 and order dated
25th April, 2019 passed by this Court in Patanjali Ayurved Ltd. v Facebook
Inc. & Ors. CS (OS)449/2018.
3

Marc P. Epstein, Comity Concerns Are No Joke: Recognition of Foreign Judgments Under Dormant
Foreign Affairs Preemption, 82 Fordham Law Review 2317 (2014)
4
Alex Mills, The Law Applicable to Cross-Border Defamation on Social Media: Whose law governs free
speech in ‗Facebookistan‘, Journal of Media Law 7 (2015) 1-35
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 14.

Mr. Arvind Nigam, ld. Senior Counsel appearing for Google Inc. and

YouTube LLC takes the following preliminary objections:
i) That the suit has been filed by a Power of Attorney – Mr. Gyandeep
Sharma. Since an action for defamation is an action in personam, the
Plaintiff ought to have personally verified and filed the plaint.
ii) That the suit lacks cause of action as there is nothing offensive
contained in the video.
iii) That the plaint does not refer to the judgment of the ld. Single
Judge in CM(M) 556/2018, which has only been placed before the
Court during the course of arguments, and only the closure report of
the CBI was relied on.
(iv) That the plaint relies upon four pages of URLs, however, there is
no mention as to which is the one which is extracted in the Plaint.
(v) That none of the persons who have uploaded the video have been
impleaded.
(vi) That there is no mention as to which is the offensive part in the
video. It is the settled position that the specific words which are
defamatory have to be pointed out, as held in the judgment of the
Supreme Court in R. Rajagopal v. State of Tamil Nadu 1994 SCC (6)
632. Since the entire plaint is mere paraphrasing and is only alleging
innuendo, the plaint ought to be rejected.
(vii) That the necessary party i.e. the uploader of the video having not
been impleaded, the suit would be liable to be dismissed. He relies
upon the judgments in ABC Laminart v AP Agencies, Salem (1989) 2
SCC 163 and Ramesh Hirachand Kundanmal v Municipal
Corporation of Greater Bombay and Others (1992) 2 SCC 524 to
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 argue that if a necessary party is not impleaded, the suit would be
liable to be dismissed.
15.

It is further submitted by Mr. Nigam that the order of ld. Single Judge

in CM(M) 556/2018, which is in the public domain, itself contains the
offending parts, and thus firstly, as Courts have to consider as to whether the
content is vexatious or scandalous, the judicial record itself becomes
defamatory. He relies on a judgment passed in the case of HPS Chawla v
NPS Chawla and Ors. FAO (OS) No. 55/2005 (Decided on 22nd
September, 2005) to submit that redaction was directed in the judicial order
to ensure that offensive content is not made public. Since the Plaintiff is in
public life and runs a business organization for crores worth of business, the
Plaintiff ought to be open to criticism.
16.

Insofar as the Act is concerned, it is submitted that under Section 1(2),

it applies to only to the territory of India. Though under Section 75 it is clear
that the Act applies to any offence or contravention committed outside of
India if the same is committed through a computer, computer system or
computer network located in India, the contraventions as contemplated
under the Act are provided for in Sections 43, 43A, 66A, 66B, 66 66E and
Section 66F. However, defamation is not covered in these provisions.
Reliance is also placed on the decision in Playboy v. Chuckleberry 939 F.
Supp. 1032 (S.D.N.Y. 1996) to argue that a U.S. court in the said case had
held that there could not be an injunction by a U.S. Court against publication
of a magazine titled „Playmen‟ in Italy. It is further argued that the grant of a
global injunction at the interim stage is like decreeing the suit. Since the
Plaintiff‟s reputation is restricted and localised in India, the Plaintiff is
adequately protected by geo-blocking. If the uploader himself removes the
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 offending material, then the removal takes effect globally.
17.

Mr. Sanjeev Sindhwani, ld. Senior Counsel appearing for Twitter

submits that the grant of a global injunction can have a regressive effect
even on India. He relies upon Section 13 CPC to submit that India also
prescribes various conditions to recognize judgments of foreign Courts. He
further relies upon the Sections 3 and 4 of the IPC to argue that if there are
extra territorial offences, an order of an Indian Court would not be
enforceable abroad. The principles of comity of courts and comity of nations
requires Courts to respect the territoriality of their jurisdiction. The
contraventions under the Act cannot be dealt with by a Civil Court as they
are criminal offences. The High Court of Justice in Northern Ireland, in
George Galloway v. William Frederick Frazer & Ors. [2016] NIQB 7 has
held that no global injunction can be granted. The Defendants have already
complied with the orders on a pan-India basis and geo-blocking has been
done. The Plaintiffs have not complained of any violations of the order that
has already been passed, and under the provisions of Order VI Rule 4 CPC,
pleadings are required to be specific and in the absence thereof, no
injunction can be granted. The mere apprehension of use of VPN and proxy
servers to access global websites cannot be sufficient to presume that the
data is likely to be transmitted and accessed in India. In Suresh Jindal v.
Rizosli Corriere Della Sera Prodzioni T.V. S.p.a. and Ors [1991] Suppl. (2)
SCC 3, the Supreme Court, being conscious of the limitations, granted an
injunction against dissemination only in India. In view of the fact that the
global standard to protect free speech could be very low in various
jurisdictions, Indian Courts, which have a higher standard for free speech,
should not impose the said standards internationally. In Shreya Singhal
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 (supra), it has been held by the Court that the injunction, if any, has to be in
the narrowest terms.
Rejoinder submissions by the Plaintiffs
18.

In rejoinder submissions, Mr. Darpan Wadhwa, ld. Senior Counsel

submits that the plaint is not lacking in material particulars. In various
paragraphs, the manner in which the content uploaded in the video is
defamatory has been set out. Specific reliance is placed on pages 31, 33, 38,
39 and 53 of the plaint. Reliance is also placed on the judgment of the ld.
Single Judge, specifically, pages 91, 118, 119, 121, 178, 179 and 201 where
the very same content, as contained in the video, has been dealt with as part
of the book. It is further submitted by Mr. Wadhwa that the right of
reputation is a Right under Article 21 of the Constitution. Thus, the Court
has to balance the Plaintiff‟s rights enshrined in Article 21 as against the
rights under Article 19, which are being claimed by the platforms
19.

Insofar as the argument of mis-joinder and non-joinder is concerned,

he submits that the BSI does not give any details except the IP addresses.
Only in some cases, mobile numbers and e-mail addresses have been given.
It is not clear if those individuals are even identifiable.
20.

He relies upon the pleadings i.e. written statements filed by the

platforms wherein the platforms are attempting to justify as to why global
blocking orders ought not to be granted. He submits that the apprehensions
of conflict of laws and violation of the principle of comity of courts are all
theoretical. He relies upon the judgment in Equustek-I (supra), especially
paragraphs 20 and 27, to argue that Google Inc. is subject to personal
jurisdiction before this Court and hence any injunction order granted by the

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 Court has to have full effect. Plaintiffs, citizens and individuals cannot be
forced to go courts in each country to protect their reputation.
21.

He submits that Section 79 of the Act is the exception to the rule that

every publisher is liable. The platforms are publishers and since they intend
to seek protection and safe harbour under Section 79 upon being served with
a Court order, they have a duty to implement the same. Rule 3(2) of the
Rules has to be part of the user agreement, and if any content is defamatory,
the same has to be taken down. Intermediaries cannot be judges in their own
cause and cannot attempt to police content on their own. Since they do not
claim any responsibility at the stage of uploading, the removal of content has
to be without hesitation. If they question the orders of the Court, they no
longer remain neutral intermediaries and are liable as publishers. He
distinguishes the judgment in Ajitabh Bachan (supra). He relies upon the
judgment in Niemela (supra) to argue that global blocking was sought. He
submits that on a VPN network, the video on global platforms is easily
available in India. While the platforms are willing to protecting trademarks
and copyrights on a global basis, they are refusing to protect a person‟s
reputation. The platforms have not included defamation as part of their
policies and hence where defamatory content is concerned, Court orders are
required. While the platforms, based on their own policies, do remove
content on a global basis, they refuse to do so on the basis of Court orders.
The reason for such resistance by the platforms is because the advertising
revenue of the platforms depends on the number of hits they get on the
shared content. Controversial content gets more hits, and thus if the said
content remains, the platforms earn greater revenues. He submits that the
publication in the Journal of Media Law in fact states that intermediaries
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 ought to stay out of judging and leave the same to the Courts.
Analysis and findings
22.

The following issues, which have been raised by the parties, are being

decided at the prima facie stage:
1)

Mis-joinder / non-joinder of parties;

2)

Whether the content is defamatory;

3)

Whether the Defendants are intermediaries and if so, what
should be the form of injunction order that is to be passed?

1)

Mis-joinder / non-joinder of parties

23.

This objection has two dimensions. The first is the non-impleadment

of the publisher and the author of the book. The second is the nonimpleadment of the persons disclosed in the BSI.
24.

Insofar as the first objection is concerned, the book is not directly in

issue in the present case, though the offending videos is claimed to be
derived from the book. Insofar as the publisher / author of the book is
concerned, the Plaintiffs have already availed of their legal remedies against
them and a detailed judgment has already been passed by the ld. Single
Judge in CM(M) 556/2018. The subject matter of the present suit is the
offending video and other related content, which is derived from the book
and has been uploaded on various links on the Defendants‟ platforms. The
details of the said links have been annexed to the plaint and run into four
pages.
25.

Insofar as non-impleadment of the individuals who have uploaded

these videos and other allegedly offending content is concerned, a perusal of
the BSI which has been filed by the platforms shows that the information is
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 in the form of account IDs along with IP addresses. Each of the platforms
has disclosed the BSI-for example, the Twitter BSI runs into 145 pages, and
shows details of from which IP address the user has logged in, and at what
time date. There are no other details of the said user. In respect of some
users, e-mail addresses have been given. However, no further details are
available. The Plaintiffs having received these BSI details, would have to
make detailed enquiries and investigations in order to identify the complete
contact details of the individuals whose IP addresses or e-mail addresses, or
in some cases, mobile numbers have been disclosed. The Plaintiffs may,
after proper enquiries take proper steps to implead such uploaders as they
deem appropriate, based on the BSI disclosed by the platforms. The suit is at
the initial stage and it cannot be said that without impleadment of these
subscribers, the suit is not maintainable. At the time when the suit was filed,
the Plaintiffs had no way of ascertaining the details of these persons and
even now, the subscriber information which the Court has glanced through,
appears to be quite cryptic. This is owing to the nature of internet itself
wherein users can upload information without disclosing their complete
identities. In X Vs. Twitter Inc.,5 the Supreme Court of New South Wales
has held that such circumstances would in fact justify granting of a Norwich
Pharmacal order directing discovery of further details. However, the same
could be done at a later stage. Thus, the objection that due to non-joinder of
these parties, the suit is not liable to be entertained is not tenable at this
stage. At the time of framing of issues, the question of mis-joinder or nonjoinder can be considered by the Court. However, since these platforms are
5

[2017] NSWSC 1300

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 being used for directly disseminating the impugned content, they are
undoubtedly necessary and proper parties in the present suit. In Ramesh
Hirachand Kundanmal v Municipal Corporation of Greater Bombay and
Others (supra), the Supreme Court has laid down the law as to who
necessary and proper parties are. This is a settled legal position, and does not
require any repetition or reiteration, At the prima facie stage, this Court is of
the opinion that the suit is not liable to be dismissed for non-joinder of the
alleged uploaders of the information or the publishers / author of the book.
2)

Whether the content is defamatory?

26.

The status of the Plaintiffs is well known and has already been subject

matter of the earlier litigation. A perusal of paragraph 18 of the plaint shows
that the Plaintiff has transcribed one of the videos, which it finds to be
offending, defamatory and malicious. 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. The relevant
portion of the transcription is given below:
“Hello Friends! Today I am going to tell you the
summary of the book ―Godman to tycoon: The Untold
Story of Baba Ramdev.‖ This book has been authored
by Priyanka Pathak Narain who is a journalist and
before publishing this book she used to cover
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 spirituality and religion for a newspaper called The
Mint. She got the inspiration for this book from her
work there. Priyanka interviewed more than 52 people
while researching this book, which included Acharya
Balkrishna, who is the Managing Director of Patanjali
and owns 94% of the company‘s shares. You might
know that this book has been banned with effect from
11th August 2017 and so the book is not available
anywhere. A District Court in Delhi heard a petition
from Baba Ramdev‘s legal team and issued a notice to
the book‘s publisher Juggernaut Books ordering them
to immediately cease the publication of the book.
Baba Ramdev undertook this action because he
believes the book is defamatory to him. Before
watching this video please understand that the views
expressed in it are of the book‘s author and our
channel has no relation with the said views. Come, let
us understand the summary of the book. Baba Ramdev
was born Ramakrishna Yadav in a village called
Saiyad Alipur in the state of Haryana. His family was
very poor and his father was a farmer…‖
27.

The video does give a history of Plaintiff No. 1, as paraphrased from

the book. There are various insinuations and allegations made against the
Plaintiffs including the business of Plaintiff No.2. Various unverified
allegations are also contained in the video. Allegations have also been made
against the Plaintiffs in respect of monetary irregularities. There are
insinuations that the Plaintiff is connected with the three deaths. The video
concludes by saying:
“So friends this was a summary of Baba Ramdev‘s
biography ―Godman to Tycoon.‖ I will reiterate that
our channel does not have any relation to the views
expressed in the book and the contents of the video are
entirely based on the research and views of the book‘s
Author.‖
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 Thus, the ultimate credit is being given to the author of the book – who may
or may not be connected with the preparation of the video and uploading of
the same.
28.

The contents of the video are not being repeated in this judgment, in

order to ensure that the same is not further published, as rightly contented by
Mr. Nigam. There is no doubt that reading of the transcript, or a viewing of
the video clearly attempts to give an impression to the viewers that the
Plaintiffs have been involved in various murders, financial irregularities,
misuse of animal parts, etc. However, all this information, as per the video,
has been derived not independently, but as a summary of the book itself.
Thus, the judgment in CM (M) 556/2018 dated 29th September, 2018 clearly
becomes relevant. A perusal of the said judgment shows that the ld. Single
Judge, after considering the law of defamation, including the balance
between the Article 21 and Article 19(1)(a) has concluded that the content of
the book is not justified. The implicit allegations have been held to be prima
facie untrue. The ld. Single Judge has arrived at the following findings:
―139. In the instant case the avowed contentions of
the petitioner have been that as regards the
publication in ―Chapter 16 Mystery 2 : The Guru‘s
Disappearance‖ in the BOOK to implicitly state that
the petitioner was somehow involved or complicit in
the disappearance of his Guru Shanker Dev Ji and that
further he, the petitioner having used his influence
with the Government was able to scuttle the
investigation which was not handled in a fair and
transparent manner, coupled with the factum that the
said publication came to the knowledge of the
petitioner on 29.07.2017 after the Special Judicial
Magistrate (CBI)/ACJM(I) Dehradun vide order dated
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 13.02.2015 accepted the closure report filed by the
CBI in this matter, which aspect was not adverted to
by the author and thus in view of the order dated
13.02.2015 of the Special Judicial Magistrate
(CBI)/ACJM(I) Dehradun in case No. 1428/14 vide
which the closure report submitted by the CBI in
relation to the missing report for Guru Shanker Devi Ji
at PS Khankhan, Haridwar, which was registered on
16.07.2007 was closed, the publication in relation to
this aspect in 2017 prima facie cannot be held to be
justified.
…
140.
As regards ―Chapter 9 Mystery 1: The Ally‘s
Murder‖ which relates to the death of Swami
Yoganand, the key associate of the petitioner, it is
contended by the petitioner that through the said
chapter which reads to the effect …
it has been insinuated against the petitioner that he
had something to do with the murder of Swami
Yogananda on account of a falling out between the
petitioner and Swami Yogananda on account of a
falling out between the petitioner and Swami
Yogananda and the petitioner contends that it is been
further represented as if the Investigating Officer had
filed an extraordinary report by stating that the
perpetrators were unknown and that the respondents
had not clarified that such reports are called ―Untrace
Reports‖ and are common place and that the same had
been done with the sole intention of creating an aura
of suspicion so as to defame the petitioner and that in
the light of the ―Untraced Report‖ which has also
been admitted by the author, it is contended on behalf
of the petitioner that it is clear that there was no way
for the respondents to prove that the allegations were
true and accordingly no defence would succeed in
relation to the same. Prima facie the factum that there
was an ―Untrace Report‖ in existence, there exists no
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 justification for creation of an aura of suspicion
against the petitioner in relation to the murder of the
Swami Yogananda rightly contended on behalf of the
petitioner.
141…In this context, thus the contention of the
petitioner seeking to contend that there were
deliberate insinuations against him made by the author
that he was not willing to get the post mortem
conducted on the body of Rajeev Dixit to cover up a
foul play, prima facie cannot be accepted.‖
29.

It was held that the fact that Plaintiff No. 1 is a public figure could not

ipso facto constitute a license to defame him. Insofar as the interlocutory
injunction is concerned, the Court in paragraphs 180 concludes as under:
“180. Thus as the petitioner about whom the BOOK
is written about is living human being and thus entitled
to be treated with dignity and has a right of social
reputation as an ordinary citizen even if he be a public
figure, and as reputation as a cherished value and an
element of personal security, portions of the BOOK
which make readers think that he is an ambitious
villain, until so proved in the Court of Law are
necessarily to be restrained form being published and
distributed for sale till disposal of the suit bearing no.
619/2017 pending before the learned ACJ-CCJARC(E), Karkardooma Courts, Delhi. This is so as the
right to reputation of a living individual under Article
21 of the Constitution of India cannot be sacrificed and
crucified at the altar of the right to freedom of speech
and expression of another and both have to be
harmonized and balanced in as much as no amount of
damages can redeem the damage to reputation of any
person and merely because there have been previous
publications on the same issue, the same does not
permit any repetitions of prima facie defamatory
insinuations against him.

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 After holding as extracted above, the Court directed deletion of various
portions in Chapter 9 – „Mystery 1‟, Chapter 16 – „Mystery 2‟, and Chapter
25 in the following terms:
―181. In view thereof, all the respondents in C.M.(M)
556/18 & C.M.(M) 557/18 are restrained from
publishing, distributing and selling the BOOK i.e.
―Godman to Tycoon‖ The Untold Story of Baba
Ramdev, ISBN No. 9789386228383 in any manner,until they delete the following : (a) At Pages 69 to 70, Chapter 9 Mystery 1 : The Ally‘s
Murder (Entire Chapter 9).
"A day after the Asian tsunami swept up the
shorelines of fourteen countries', killing nearly a
quarter of a million people, an intriguing event
occurred in Kankhal. In the darkening winter evening
of 27 December 2004, a scuffle broke out in the singlestorey Yogananda Ashram, home to Swami
Yogananda, the man whose licence had enabled Divya
Pharmacy to function and grow for eight years since
its inception in 1995 till 2003.
Yogananda's neighbours are cagey about
discussing it even today but they say they heard raised
voices coming from his house that eventful evening. No
one imagined, though,, that Yogananda — the lonely
man who lived without a telephone or even electricity
— was being knifed to death. One Vasant Kumar Singh
discovered his lifeless body shortly after and called the
police. Along his lifeless body shortly after and called
the police. Along with other neighbours, the young
Tarun Kumar went in with the police. 'I remember it
still. He was there in that dark room when I went in …
• lying in a pool of his own blood.
As mentioned earlier, in 2003 Divya Pharmacy
had abruptly changed the vaidya on its registration
from Swami Yogananda to Sri Saty Pal Singh,
Yogananda is said to have had a falling out with
Ramdev‗s increasingly powerful enterprise but the
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 reasons for this are still unknown.
With Yogananda‗s death, a key associate who
had provided critical help to Ramdev in his early days
was gone. The murder remains unsolved till date. Ten
months later, on 25 October 2005, investigating officer
B.B. Juyal filed his final report in the case - Case
unsolved. Perpetrators unknown."
(b) At Page 105 to 114, Chapter 16 Mystery 2 :
The Guru‟s Disappearance (Entire Chapter 16).
"A year after Ramdev had a successful run in the
United Kingdom and delivered a speech at the United
Nations in New York came plans for a yoga tour of the
United States. India's foremost yoga guru was
scheduled to start his tour in New York on 30 June
2007 and wind it up in Coventry in the UK on 8
August, rumbling through New Jersey, Chicago,
Glasgow and London in between.
Animesh Goenka, then president of Heritage
India, a small charitable organization that was
involved with the planning of Ramdev's tour, had told
the media that the US leg of the tour, estimated to cost
$350,000, was to be funded exclusively through
charitable donations from private individuals and
corporations. The sale of tickets to the yoga camps,
priced between $100 and $500, was expected to raise
half a million dollars. This money, Goenka had
asserted, would be funnelled into research on amla and
developing a product for which a patent could he
sought.
While Ramdev prepared for his international
tour, Balkrishna was making certain critical and farreaching changes. On 18 May 2007, fifteen months
after its formation, Patanjali Ayurveda Pvt. Ltd
dropped the word 'private' from its name. This was a
critical move if the company wanted to list itself on the
stock market. Patanjali's shareholding also changed
around this time, as would happen frequently over the
years, with several of Ramdev's key associates coming
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 on board as shareholders, albeit minor ones, at this
point. As before, and as with Vedic Broadcasting Pvt.
Ltd, Ramdev's pliant and trustworthy Balkrishna
remained the largest shareholder by far.
Notable among these new shareholders were
Krishan Kumar Pittie and Sarvan Poddar Pittie would
eventually play a major role in Ramdev's quest for
media domination and Poddar would buy a Scottish
island, Little Cumbrae, for GBP 2.1 million in
September 2009 and donate it to Patanjali Yogpeeth's
UK trust.
Balkrishna also converted Vedic Broadcasting
Pvt. Ltd into a public limited company.
Kirit Mehta and his partners at Aastha were too
busy struggling to survive to notice the dramatic
changes that were taking place in Vedic Broadcasting's
story. Had they been a little more alert they would
have sensed that something wasn't quite sitting right.
Ramdev was preparing to take over Aastha.
But Ramdev himself missed something brewing
in his own backyard. Amid his heady successes, and
hectic travel, he failed to see that his guru Shankar
Dev was ailing, increasingly unhappy and isolated in
his own home, Kripalu Bagh Ashram. For instance,
Shankar Dev, who was the convener of the Divya Yog
Mandir Trust, was not on the boards of any of the new
companies that were set up by Ramdev.
But what Ramdev could not see, though it was in
plain sight, many in Haridwar saw. Several remember
the swiftly ageing Shankar Dev, ravaged by spinal
tuberculosis, becoming increasingly frail and forlorn.
Spinal tuberculosis causes the patient to cough blood,
lose weight, get night sweats and chills, and experience
a loss of appetite, fatigue and fever, and it can
sometimes impair mobility as a result of pain in the
spine and damage to the joints.
Like in many small towns, friendships and
kinship survive long years in Kankhal Sushant
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 Mahendru‗s family, friends of Shankar Dev, continued
looking out for him even after he stopped coming to
their house when his old friend died. 'I have seen him
several times during those months when he had TB, He
was alone and ignored in a little room in Kripalu Bagh
Ashram…. cooking for himself, washing his own
clothes and utensils. The only difference was that he
took rickshaws to commute because he could no longer
cycle because of the TB. But even that was difficult for
him ….
These people [Ramdev and Balkrishna] had a
Nissan Terrano at the time, but not one person in
Kankhal has any memory of Shankar Dev sitting in any
of their cars. He was always on a cycle or in a
rickshaw,' says Mahendru. \
The anguish of watching Shankar Dev
deteriorate is etched on Mahendru's face. From being
the master of his ashram, Shankar Dev was reduced to
a sidestepped hasbeen in Kripalu Bagh.
ShankarDev is still the subject of hushed
conversations in Kankhal today. Those who remember
tell of his trials and speak of his tribulations in lowered
voices — no one wants to cross the now all-powerful
Ramdev. In a small place like Kankhal, word can get
around. They are right to be worried. For instance,
when I asked about Shankar Dev's deteriorating
standard of living Balkrishna became positively
belligerent and furious at me.
Ramdev's tour began successfully in New York
when a thousand people, mostly Indian Americans
already familiar with his yoga through Aastha USA,
attended his inaugural camp at Nassau Community
College — some from as far as California.
At the Garden State Exhibit Center in Somerset,
New Jersey, there was a groundswell of fan support —
3000 people attended. The state Senate and the
General Assembly passed a resolution that this
Legislature honors Swami Ramdev for his firm belief
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 that good health is the birthright of all human beings,
and extends best wishes for a successful yoga camp in
the US'.
It was when Ramdev was in Chicago that news
came from Kankhal. On 14 July 2007, Shankar Dev
disappeared. Vanished without a trace. He left that
morning for his usual walk and simply did not return.
It may have been devastating news for Ramdev.
Or maybe it was just inconvenient timing. With the
Chicago schedule drawing to a close, Ramdev had to
choose: Should he go on'to London, where the House
of Commons planned to receive and honour him, or
should he send his regrets and rush back to Kankhal to
lead the search for his missing guru?
Usually once a disciple takes deeksha, or
initiation into the sacred, from his guru, he establishes
a bond with him. Ramdev had not just taken deeksha
from Shankar Dev but also accepted saffron robes
from him — that is, he renounced the world. From the
moment he took the saffron robes from Shankar Dev,
that gurushishya relationship was meant to become the
central fulcrum of his life. From that moment onward,
Ramdev was supposed to consider his guru as his
spiritual and temporal father and mother.
There is no way of knowing what Ramdev truly
felt when he heard of the disappearance or if he
struggled with the decision or for how long, but in the
end he decided to carry on with his tour. The day after
his aides filed a missing person's report at Kankhal
pohce station, on 18 July 2007, Ramdev attended a
ceremony at the British House of Commons in his
honour.
An investigation began in India, but clues were
scarce. A cryptic note was found in Shankar Dev's
room: ‗I have taken some loan from you for this trust
but I cannot repay it. Please forgive me. I am leaving.'
He was seventy-seven years old.
The note raised more questions than it
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 answered: Exactly how much did this old man who
continued to live as simply as before Ramdev's
meteoric rise borrow that he could not repay the sum?
Why did he borrow it? When had he taken the loan?
And from whom? More importantly - why did Ramdev,
sitting atop an empire worth at least Rs 100 crore, not
repay the loan on his behalf? Why did Shankar Dev not
ask him for help? Or had he?
Even though Karamveer had left the
organization, Shankar Dev, who missed him dearly,
often called him - sometimes for financial help. ‗I used
to send whatever little I could so he could get by,' says
Karamveer. Vipin Pradhan, a former aide and
Karamveer's nephew, says, 'By then, the trust was
being run by ... relatives of Ramdev who had come in
from outside and had no intention, of serving any
interest other than their own. They treated Shankar
Dev badly and he was very unhappy.''
Kararhveer says that once when he was visiting
Haridwar and staying with an old friend in Tripura
Ashram, 'Shankar Dev came to meet me. They had sent
two people after him to do his CID {that is, to spy on
him]. They waited at the gates while we met. I'm not
sure why... they [Ramdev and Balkrishna] had doubts
[about Shankar Dev] in their minds at the time... who
knows what doubt… what they were thinking at the
time. It must have been a very difficult situation for
Shankar Dev.'
But it is Radhika Nagrath's appraisal of the
situation that is most damning. Remember, Nagrath is
the one who designed Divya Pharmacy's website in its
early days. She is still associated with Patanjali and
has an obvious soft spot for Ramdev, whom she speaks
of with affection, though she is unhesitatingly honest.
She says, 'Shankar Dev was a real saint - a very gentle
guy. He felt ousted in his own home. He did not get any
compassion because these people were in a race for
something else. It was once his home, his shelter. He
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 used to sign all the expense cheques for the trust at
first [but] now the authority was taken away from him
and he was not happy with the way things had shaped
out. He had given these people shelter and now they
had no time for him ... they had no use for an old man
any more.'
An uneasy silence always follows questions
about Shankar Dev among Kankhal residents. People
always ask, 'Can I trust you? Are you writing for him
or against him? You see, Ramdev has become too
powerful. And look whathappened to his guru ...'
After his pit stop at the House of Commons,
Ramdev continued his tour, travelling to Glasgow then
back to London, and finally ending his tour in
Coventry on 8 August 2007. When he returned to India,
more than three weeks had passed since Shankar Dev's
disappearance. To outside observers it seemed as
though Ramdev was too busy chasing fame and
fortune, making them wonder: did he even care?
After his return, Ramdev summoned a press
connference in Haridwar, remembers the Jansatta
reporter and Haridwar resident Sunil Pandey. At the
press conference he was saying how Shankar Dev was
like a father to him and how sad it was ... I asked him
that if he really was like a father to him, why –didn‗t he
come back?
―I was in the US, conducting camps, answered
Ramdev.
― Well, if a family member disappeared, one
would come back, isn‗t it?‗Pandey pressed Ramdev.
If I knew he was alive, I would have,‗ replied
Ramdev.
'So you are admitting that you know that he is
dead?‗ demanded Pandey.
That was the suspicion in everyone's minds.
Stunned, realizing he had misspoken, Ramdev
fell silent.
Then his people just took over and changed the
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 subject. Though a lot of people were present at the
press conference,' recalls Pandey.
Little of this murky business was reported in the
national media at that time. Across the country,
Ramdev's star was ascendant.
It was only in October 2012, five years after
Shankar Dev's disappearance, that the Central Bureau
of Investigation (CBl), India's apex investigative
agency, initiated a probe to find him. In his inimitable
style, Ramdev welcomed the investigation on the one
hand, but also attacked the CBI and the government,
accusing them of a politically motivated conspiracy to
frame him m the case. Given the sour relationship
between Ramdev and the Union government at that
time, his allegation did have some credence.
Whatever the CBI's initial motivations, it was
widely reported- that it initiated a move to close the
case in December 2014 - by this time the Narendra
Modi-led government had taken charge at the-Centre –
because the agency had failed to make any headway.
The special BJ magistrate in Dehradun set the date for
the next hearing as 12 January 2015 but this is where
the public case file goes cold.
It‗s hard to ascertain what happened thereafter.
While a right to information (RTI) request I filed with
the CBI in Delhi met with the response that the CBI
was not covered by the RTI, another filed in Dehradun
met with the response that the CBI does not answer
questions on open cases. Ergo, the case is still open.
(c) At Page 201 Chapter 25 : Conclusion
"A trail of people whose goodwill or frailties he
used to further his own enrichment and pursue his own
agenda, people who were left by the wayside after they
had served their purpose. A trail of people who either
vanished into thin air, or died mysterious deaths, or
live on in utter fear of him. A trail of decisions and
political machinations driven not by the principles he
espouses but by expediency."
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 (d) At Page 202 Chapter 25 : Conclusion
"Finally, a trail of shirked responsibility. For
every negative event surrounding him, he has
consistently yelled foul, always choosing to lay the
blame at someone else's door."
…
…
…
"All Ramdev's former allies, aides, supporters
and mentors who had watched him rise but has fallen
by the wayside at some point seemed to have been
waiting for a call like mine, from anyone at all, asking
them about their time with Ramdev."
Insofar as the remaining content is concerned, the Court directed as under:
―182. As regards the submissions made in relation
to other portions of the BOOK as detailed in the
petition, the same prima facie fall within the domain of
thought provocation and debate and criticism and the
prayers in relation thereto cannot presently be
accepted.‖
30.

A perusal of the transcript of the video shows that the same is nothing

but a summary of the book. It contains a large portion of the deleted content
in a paraphrased / summarized manner. Thus, the videos are falling foul of
the judgment passed by this Court.
31.

Ld. Counsels for the parties have confirmed that the publisher of the

book had filed SLPs before the Supreme Court being SLP Nos. 3030730308/2018 which are stated to be pending in the Supreme Court. However,
there is no stay on the order of injunction that has been passed.
32.

Thus, insofar as the question as to whether the content is defamatory

or not, the same need not be gone into by this Court as the offending video
in the present suit is nothing but a summary of the book, which has already
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 been litigated upon. There has been no serious contest as to the fact that all
the offending videos whose links have been filed at pages 19 to 24 of the
documents file are merely summarizing/ paraphrasing extracts of the book
itself. Since this has not been factually contested by any of the parties, the
Court has not viewed each of the videos. The submissions of the ld.
Counsels have been focused on the video whose transcript has been
provided in the plaint in paragraph 18(a). The Plaintiff‟s averments in para
18(a) have been rebutted only on the ground that the platforms are
intermediaries. There has been no denial of the content of the video as
mentioned in paragraph 18(a) of the plaint. Paragraph 18(a) of the Plaint
reads as under:
“18. That the brief facts necessitating the filing of the
present suit are stated herein under:
a) That the Plaintiffs in October, 2018 came to know
from Plaintiff No. 1‘s followers including the special
power of attorney holder and the distributors and
officials of Plaintiff No. 2 about uploading/sharing/
dissemination/publication of highly defamatory and
malicious videos/URLs/Weblinks against the Plaintiff
No. 1 on the portals of the Defendants, based on
absolutely false and/or wrong and/or misleading
facts/documents/statement thereby insinuating that the
Plaintiff No. 1 is responsible for the death of Mr. Rajiv
Dixit and his guru Swami Shankar Dev Ji and his
colleague Swami Yogananda. That the vilification
campaign launched by the Defendants against the
Plaintiff No. 1 by allowing the uploading of several
videos/URLs/Weblinks
are
false,
frivolous,
misconceived and reeks of malafide intentions. The
contents of one such video is reproduced herein below:
…‖
33.

Thus, the question as to whether there has been defamation or not has

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 been decided in the earlier round of litigation between the parties and the
publisher. In fact, Google and YouTube have taken the stand that the
impugned videos / URLs / web links have been duly disabled from the
country domain. They have denied that the vilification campaign is at the
behest of the Defendants and further state that they are strictly neutral and
passive intermediaries. Insofar as Facebook is concerned, it has taken a
stand that it is only an intermediary, which provides platform to third parties
to upload content and it cannot be asked to proactively monitor its platform.
Thus, the content of the video to the extent it contains paraphrasing of
content which was directed to be removed from the book is held to be
defamatory. A perusal of the video transcript and the offending portion of
the book show the clear similarity and prima facie, establish that the video is
derived from the book and hence is defamatory. In any event, this issue is
moot inasmuch as the video begins by stating that it is based on the book.
Thus, the defamatory nature of the video cannot be disputed.
3)

Whether the Defendants are intermediaries and if so, what should

be the form of injunction order that is to be passed?
34.

In order to answer this question, the following aspects need to be

considered:
a) Role of Google, YouTube, Facebook and Twitter in the
dissemination of content;
b) Interpretation of Section 79;
c) Whether geo-blocking is sufficient or whether a global injunction is
required to be granted?

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 Written Statement of Facebook
35.

In its written statement, Facebook pleads that it is an intermediary

under Section 79 and has no role in initiating transmission, selecting the
receiver of any transmission and or selecting or modifying the information
contained in the transmissions. It is entitled to protection under Section 79.
Reliance is placed on Shreya Singhal (supra). Facebook pleads that it does
not have an obligation to proactively monitor the Facebook service in order
to block the offending posts. It merely provides a platform to upload the
content. It states that the request for global blocking would result in a
“conflict of laws situation”, as a global injunction may not be in consonance
with the law in other jurisdictions and may jeopardize Facebook‟s status as
an intermediary in other jurisdictions. This would be violative of
international comity. It states that it is neither the author nor the publisher of
third-party content and enjoys immunity under Section 79. In terms of
Shreya Singhal (supra), it is only required to act upon a valid Court order or
request from an authorized Government agency. It has already taken action
in respect of the URLs pointed out by the Plaintiffs. It further avers that it is
in compliance with the 2011 Rules and it shall not host, display, modify or
publish any information which is covered under Rules 2 and 3 of the 2011
Rules.
Written statement of Google LLC and YouTube LLC
36.

Google and YouTube have both filed a common written statement. It

is averred that Google Plus i.e. Defendant No.4 is not a separate juristic
entity, and is only a product which is owned and operated by Google LLC.
The said Defendant thus deserves to be deleted. The two platforms claim

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 that they are not publishers of the content, which has been created by a third
party and uploaded on www.youtube.com. The said content is neither
created nor controlled nor owned by the platforms and is accessed on the
Internet on an ‗as is‘ basis. Google and YouTube claim that they have
complied with the order dated 24th January, 2019 and disabled the web links
/ URLs to the extent they related to India. The said paragraph is relevant and
is extracted herein below:
“4.
Without prejudice to the submissions made
herein it is submitted that the answering Defendants
have duly complied with the order dated 24.01.2019
passed by this Hon‘ble Court and the Defendant No. 3
has duly disabled the web links/URLs complained of by
the Plaintiffs in the present matter, to the extent that
they pertained to YouTube (hereinafter, ―Impugned
URLs‖) from the country domain.‖
37.

Insofar as the prayer as to blocking and restriction of access to all

other media in control of the Defendants is concerned, their stand is that
such blocking would be contrary to the “established principles of defamation
law” and Section 79 of the IT Act.
38.

As per the basic terms and conditions of YouTube, a user has to

contractually agree to the following three documents:
i. YouTube‟s Terms of Service;
ii. Google‟s Privacy Policy;
iii. YouTube‟s Community Guidelines.
39.

These are binding on every user, who gives various representations

and warranties. Only the uploader has specific knowledge of the content of
the video, and the platforms are mere intermediaries. Thus, no liability can
be fastened upon them. YouTube claims that it provides for a “robust, easyCS (OS) 27/2019

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 to-use mechanism” on its website and any user can report a video for
violation of his or her rights. In addition, a complaint form can also be filled,
which is publicly accessible. Upon receipt of any complaint, the same is
reviewed as per YouTube‟s policy and local law of every country, and the
same is acted upon. It is submitted that since defamation is a subjective
issue, and laws vary from each country, such issues are subject to the local
laws of the country where alleged defamation is complained of. It avers that
the Courts are the adjudicating authorities to decide whether the alleged
content is defamatory. Since YouTube is a dynamic platform, where videos
are uploaded every hour, no specific knowledge of the contents of videos
can be attributed to YouTube.
40.

As per Shreya Singhal (supra), a Court order has to be passed

identifying the content as being defamatory, as a claim of defamation is
especially hard to judge and only Courts of competent jurisdiction can take a
decision on the same.
41.

It is pleaded that the plaint does not disclose a cause of action as the

ingredients required for a defamation action are not satisfied. It is further
pleaded that the injunction sought is vague and broad, as an order is being
sought in respect of “other active URLs/links which contain or purport to
contain, the infringing or disparaging Video…”. Such an order would be
contrary to Shreya Singhal (supra). Further, injunction is being sought
“across the globe.” It is pleaded that an order in such terms is beyond the
territorial jurisdiction of this Court. Since every Court has its own standards
for freedom of speech and expression, the order of the Court cannot be
enforced beyond Indian borders. Such an order would expose the
Defendants to liability for censoring content in various countries, which
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 would be contrary to free speech standards and may also expose the
platforms to legal proceedings. It is averred that such order would lead to
libel tourism and forum shopping.
42.

It is submitted that active monitoring also cannot be directed. The

injunction ought to be restricted to India, and only to the identified URLs. It
is further stated that the platforms have complied with the order dated 24th
January, 2019. The relevant extract from the written statement reads as
under:
“4.
Without prejudice to the submissions made
herein, it is submitted that the Answering Defendants
have duly complied with the order dated 24.01.2019
passed by this Hon‘ble Court and the Defendant No. 3
has duly disabled the web links/URLs complained of by
the Plaintiffs in the present matter, to the extent that
they pertained to YouTube (hereinafter, ―Impugned
URLs‖), from the country domain.
…
20….It is submitted that the said prayers are untenable
and contrary to settled law for the following reasons:
(i) To the extent the Plaintiffs seek in its prayers a
blanket order to remove ―any other URLs/links
containing the Video or part thereof‖ without
identifying such videos or specifying their location, the
prayer is vague, excessive and incapable of being
complied with;
(ii) To the extent the Plaintiffs seek in its prayers a
blanket direction to block/disable ―any other
URLs/links containing the Video or part thereof‖ that
defame or disparage
the alleged goodwill and
reputation of the Plaintiffs, without there being any
examination and/or adjudication by the Court on
whether each such video is indeed defamatory or
disparaging or not, the prayers are contrary to settled
law and cannot be granted;
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 (iii) To the extent that the Plaintiffs seek in its prayers
a blanket direction to block/disable videos from its
websites ―across the globe‖ which is beyond the
territorial jurisdiction of the Hon‘ble Court. It is
respectfully submitted that every country has its own
standards of Free Speech and Expression – what is
lawful in one country may not be lawful in another
country and every country has its own standards of
Free Speech within its territorial limits. It is pertinent
to mention that the said right is not affected by the
nature of media use for communication. Therefore, any
attempt by the Plaintiffs to seek implementation of
orders passed by this Hon‘ble Court (which are
undisputably based on the Indian Legal Framework)
beyond Indian borders and thus, enforce Indian legal
standards of defamation and Free Speech across the
world, would outright contradict critical international
law presumptions of territoriality and principles of
international comity. It is submitted that courts across
the world and in India have consistently held that
orders passed by them ought to be limited to the
territorial jurisdiction of the country.
It is respectfully submitted that the Answering
Defendants are intermediaries that operate in several
countries under the local domain to such countries, in
compliance with the respective legal framework of
those countries and targeting the local citizenry. Any
order for global removal would expose the Answering
Defendants to liability for censoring content in a
particular country, in contravention to the free speech
standards of those jurisdictions.”
Written statement of Twitter
43.

Twitter claims that it is a social media platform. Further, the

description of the Twitter service is pleaded as under:
“3.
The present suit is not maintainable against
the answering Defendant, which makes available the
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 Twitter Service ( which includes enabling users to (a)
create and share short messages up to 280 characters;
and (b) sharing images and videos through a real-time
global information network) to the users living outside
the United States of America, including India through
the social media platform at www.twitter.com. Being
only a service provider, the answering Defendant does
not control or participate in or select the content
uploaded by its users on www.twitter.com, a social
media platform. Further, the answering Defendant
does not directly post any content on the said website.
The answering Defendant, thus, qualifies as an
―intermediary‖ within the meaning of Section 2(1)(w)
of the Information Technology Act, 2000 (the Act). In
fact, it is an admitted position that the answering
Defendant is an ―intermediary‖. Being an
intermediary, the answering Defendant is exempted
from any liability in relation to any third-party
information or data made available or hosted by it in
terms of Section 79 of the IT Act.‖
44.

Twitter states that it complies with the 2011 Rules. It relies on the

judgment in Shreya Singhal (supra) to argue that the only manner in which
knowledge can be attributed to an intermediary is through a Court order.
Twitter has no partisan role and is bound by the Act and the Rules framed
thereunder. No order in the form of a prospective injunction can be passed
against unidentified future content as Twitter does not have any policy to
monitor, detect and remove content. Reliance is placed on the judgments in
Myspace Inc. v Super Cassettes Industries Ltd. 2017 (69) PTC 1 (Del) and
Kent RO Systems Ltd. & Ors. v Amit Kotak and Ors. 2017 (69) PTC 55I(Del.

45.

With respect to the prayer for global injunction, it is pleaded that such

an order would run contrary to the principles of state sovereignty in
international law and the principle of international comity, since the laws
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 relating to free speech and defamation are not co-extensive and differ from
country to country. Any order for a global takedown or global blocking
would interfere with the rights of the people over whom the Court has no
jurisdiction. The local laws of every country cannot apply to the internet
globally. National courts thus have to restrict their orders only to geoblocking of the content i.e. blocking of content only in the country where the
content is in breach of local law, since what is illegal in one country need
not be illegal in another.
Analysis
46.

On the basis of all the above pleadings of the platforms, it is clear that

the platforms do not deny that they are disseminating the content. It is also
not denied that they are bound by the provisions of Section 79 of the Act.
Further, the Court had specifically directed the Defendants to throw some
light on how geo-blocking is done and to keep a technical person present in
Court to seek clarification on geo-blocking. None of the platforms have
given a detailed explanation as to how geo-blocking is done. In fact,
Defendants 2 and 3 sought exemption from having a technical person
present in Court. Thus, the Court has no option but to adjudicate the issue of
geo-blocking on the basis of the material available on record and the
submissions made before the Court.
47.

One of the platforms i.e. Facebook, has placed on record its response

to the queries raised by the Court on 5th April, 2019. According to Facebook,
it follows the Facebook Community Standards, which address various issues
like bullying, harassment, hate speech, violence, etc. Facebook‟s categorical
position is that if any content is violative of Facebook Community

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 Standards, such content is not made available on its platform at all. The
relevant part of the note by Facebook is extracted herein below:
“ When intermediaries action content because the
content violates their terms of service/policies is the
content geo-blocked or globally blocked?
Response: Facebook‘s ―Community Standards
(annexed herein as DOCUMENT A hereto) outline
what type of content is and is not allowed on
Facebook. The Community Standards are in place to
ensure a safe environment for all users globally. As
such, the Community Standards apply around the
world to all types of content. The Community
Standards address globally relevant issues such as
bullying, harassment, hate speech, credible violence,
protection of minors, and spam. Thus, if content
violates Facebook‘s Community Standards, Facebook
considers that such content should not be available on
its platform at all and therefore renders such content
inaccessible for all users globally.
48.

Insofar as Google, YouTube and Twitter are concerned, from the

pleadings which have been filed on record, it is clear that the content is
uploaded on their platforms by users. What is however not clear is as to how
the content uploaded from a particular geographical location is immediately
transmitted across the world without any geographical limitation. It is a
matter of public knowledge, and is also clear from the various judgments
which have been cited before the Court, that all these platforms maintain a
global network of computer systems, which transmits the content,
information and data on an almost instantaneous basis. Thus, any content
uploaded from India, would be available, within a matter of seconds, across
the globe and would be accessible to users or viewers across the globe. The
same would only be disabled or blocked upon a Court order being received,
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 subject to local laws of that particular jurisdiction.
49.

Insofar as the global dissemination of information, content or data is

concerned, there is no doubt that platforms disseminate the same by either
copying the data on multiple servers, or providing access to the source of the
data / information / content through a network of servers. This entire process
could be even without human intervention.
What is geo-blocking?
50.

As per all the platforms, geo-blocking is a method by which the

platforms ensure that any content is blocked from a particular jurisdiction.
Facebook has given a brief description how geo-blocking is done. As per the
note filed by Facebook, geo-blocking is done in the following manner:
“With respect to the Facebook platform, content is geoblocked in the following manner:
(i) To determine where an individual is located,
Facebook relies on a number of data points and
signals, including:
a. An individual‘s internet protocol (―IP‖) address at
the time they are accessing the Facebook service;
b. Information a user specifically shares with
Facebook, including a Facebook user‘s self-reported
location; and/or
c. Location information if a user has consented to
GPS/location tracking services on his/her smartphone
settings- this means of determining location is common
among Internet platforms.
(ii)
Using such data points, Facebook geo-blocks
content based on an individual‘s location.‖
Along with their written submissions Google and Twitter have also
submitted a note on geo-blocking. No oral submissions were made in respect
thereof.
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 51.

Defendants No. 2 and 3- Google and YouTube, state that their Terms

of Service and Community Guidelines, which are binding on users are
aimed at “striking a proper balance between enabling free expressions and
maintaining a responsible and safe community of users.” It is stated that the
Policies are developed on the basis of internationally accepted norms that
are not known to deviate across various jurisdictions. Content that is
reported to Google and found to violate the Policies is removed from the
platform as it goes against the “principle on which the Platform is founded.”
Such removal is stated to be global in nature.
52.

Defendant No. 5-Twitter‟s note on geo-blocking states that when an

order is passed by a court of a particular country to block any content,
Twitter disables the access to the reported content for all such Twitter users
whose user settings indicate the name of the country of which they are
residents as the country in which the content is to be blocked. It further
states that Twitter automatically determines the location of a particular user
at the time of creation of his/her Twitter account on the basis of the IP
address through which the user logs in and reflects the same in the accounts
settings of the user‟s profile. By way of example, it is stated that if an Indian
court was to direct blocking of a particular tweet, Twitter would disable the
access to such tweet for all account holders whose account settings indicate
that their place of residence is India. However, if content is found to violate
Twitter‟s terms of service, it is taken down globally.
53.

From the above discussion, in non-technical terms, `geo-blocking’

appears to be a short form for `geographical blocking’ i.e. blocking of
content from country to country or from one region to another. If the content
is geo-blocked, the same would still be available on the other global
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 platforms but not on the platforms of the country where geo-blocking has
been carried out. Thus, geo-blocking is partial blocking of content,
information and data, restricted by territory. The question as to whether geoblocking is justified and sufficient under Section 79 of the Act, is the
question that arises for determination.
International Legal position on Geo-blocking/Global Injunctions
54.

A review of the case law on the question of geo-blocking and global

injunctions in the context of internet platforms shows that the same has been
a raging debate across jurisdictions. While some courts have taken the view
that granting of global injunctions is not appropriate, other courts and
forums including in recent decisions, have taken a view that if the
circumstances warrant, global injunctions ought to be granted.

Issues

relating to comity of courts, conflict of laws etc. have been raised even in
these proceedings.
55.

One of the earliest cases cited by the Defendants is Playboy

Enterprises, Inc v. Chuckleberry Publishing Inc. (supra) which involved
an internet site publishing a “male sophisticate” magazine under the name
“Playmen” operating from Italy. The magazine had commenced publication
in 1967 in the print form, and in 1996 it had expanded to an internet site.
The U.S. District Court for the Southern District of New York, in 1981 had
directed Tattilo Editrice S.P.A, the Italian publisher to either shut down its
internet site completely and or refrain from accepting any new subscriptions
from customers residing in the U.S. It further directed payment of all the
gross profits earned from customers residing in the U.S. to the Plaintiff. The
injunction, which was granted on 26th June 1981 was pressed by the

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 Plaintiff, and a contempt petition was filed against Tattilo. The Court held
that Tattilo had violated the injunction order and accordingly sanctioned the
company for civil contempt, directing the website to either shut its internet
site completely, or prohibit US users form accessing the site. In the
contempt proceedings, the Tattilo had challenged the jurisdiction of the US
Court, however the court held that it had the jurisdiction to enforce the 1981
injunction. The relevant observation in respect of extraterritorial jurisdiction
is as under:
―Tattilo may of course maintain its Italian Internet
site. The Internet is a world-wide phenomenon,
accessible from every corner of the globe. Tattilo
cannot be prohibited from operating its Internet site
merely because the site is accessible from within one
country in which its product is banned. To hold
otherwise ―would be tantamount to a declaration that
this Court, and every other court throughout the world,
may assert jurisdiction over all information providers
on the global World Wide Web. Such a holding would
have a devastating impact on those who use this global
service. The Internet deserves special protection as a
place where public discourse may be conducted
without regard to nationality, religion, sex, or to
monitors of community standards of decency. See
generally American Civil Liberties Union v. Reno, 929
F. Supp. 824 (E.D. Pa.1996)‖
Vide the operative portion of the injunction however, the Court directed
Tattilo either to:
―(1) either shut down its Internet site completely or
refrain from accepting any new subscriptions from
customers residing in the United States;‖
In this case, however, what deserves to be noted is the fact that the
Defendant was actually an Italian company doing business in Italy, and it
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 had been publishing the magazine for more than 3 decades. Moreover, the
magazine was being operated from Italy and the court injuncted the
magazine from permitting acceptance of subscriptions from the United
States
56.

In the case of Macquarie Bank Limited & Anr. vs. Berg (supra), the

New South Wales Supreme Court was seized with an action for defamation.
The Defendant was an ex-employee of the Plaintiff bank. He started
publishing defamatory content on websites from outside New Zealand, it
was reasonably understood that the Defendant was doing so from the United
States. Thus, there was a serious issue of jurisdiction. In this case, the court
held that the injunction sought for disabling access ought not to be granted.
Prima facie the Court found that the publication could not be called
scurrilous. In respect of the question as to whether the Defendant could be
restrained from publishing anywhere in the world via the internet, the Court
observed as under:
―14…Such an injunction is not designed to
superimpose the law of NSW relating to defamation on
every other state, territory and country of the world.
Yet that would be the effect of an order restraining
publication on the Internet. It is not to be assumed that
the law of defamation in other countries is coextensive
with that of NSW, and indeed, one knows that it is not.
It may very well be that, according to the law of the
Bahamas, Tazhakistan, or Mongolia, the defendant has
an unfettered right to public the material. To make an
order interfering with such a right would exceed that
proper limits of the use of the injunctive power of this
court.
15. For this reason alone, I would refuse the order
sought.‖

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 It can be noticed that in the above judgment, the Defendant was not a
resident of New Zealand. The uploading had not taken from New Zealand
and the court also found that while the language was strong, the content
could not be termed as “scurrilous.” The relevant portion from the judgment
is extracted hereinbelow:
“24.
Another matter argued by counsel was that
freedom of expression does not extend to the freedom
to engage in scurrilous abuse and properly analysed,
that is what the material on the website amounts to. It
is true that the content of the website is at times
couched in strong language, and make serious
allegations against the plaintiffs. In the last dew pages
there are thumbnail sketches of a number of
individuals involved in the engagement between MBL
and the defendant, and these are not only critical of
some of those individuals, but are illustrated by
reference, apparently, to notable characters from the
world of entertainment. The illustrations, are,
apparently, designed to ridicule some of the individuals
named. I am not persuaded that they, or any other
parts of the publication warrant the epithet
―scurrilous.‖
57.

The Supreme Court of New South Wales had the opportunity to

consider this very issue of global injunctions in X v. Twitter Inc. (supra)
This case involved confidential information being leaked on the Twitter
platform and in the said context, the Court observed that Twitter ought to
have a mechanism for filtering information on the Twitter service, especially
keeping in mind issues of national security and classified intelligence etc.
The Court holds that a direction to apply some degree of filtering would not
be unreasonable. The Court further observed that an order could also be
directed towards future tweets, and that there cannot be a right to post
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 offending tweets. The observations of the Court is as under:
―I have taken into account the assertion in the Twitter
email that it is ‗not feasible to proactively monitor user
content for Offending material‘. But the defendants
chose not to put evidence before the Court to explain
their systems and processes or the factual basis for
their contention. As counsel for the plaintiff stated
‗Unfortunately, we just don‘t have the defendants here
to explain what is involved‘ and ‗That‘s a deficit
brought about by the position taken by the
defendants‘.‖
Thus, the Supreme Court of New South Wales holds that worldwide orders
would be required to be passed against Twitter, if compliance with such
orders cannot be guaranteed in those jurisdictions. The Court expresses
confidence in Twitter being an organisation with social responsibility, so as
to ensure that the offending tweets are removed.
58.

A classic case of jurisdictional conflict on the internet has arisen in

the litigation between Equustek Solutions Inc. and Google. Equustek had
filed a suit in Canada against a company called Datalink seeking an
injunction against violation of intellectual property. Datalink had launched
various products on the internet, which according to Equustek, mislead the
customers into believing that they were Equustek‟s products. An injunction
was granted against Datalink, with which Datalink did not comply. To make
matters worse Datalink removed itself from the jurisdiction of Canadian
courts. Despite arrest warrants been issued, the order could not be effected.
Equustek then sought an order against Google to remove Datalink websites
from its search results which was refused by Google. Once Datalink was
injuncted by the Canadian Court Google blocked 300 Datalink websites
from appearing in the Canadian specific domain i.e. www.google.ca.
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 However, the references to Datalink's websites, which appeared in the
search results outside Canada retained. At that stage, Equustek sought an
injunction from the Canadian court to direct Google to remove Datalink
websites from all its global search results. The Trial Court granted the order
for delisting the search results, which was complied with by Google. The
Court of Appeals of British Columbia affirmed the order.
59.

Google, thereafter approached the United States District Court in the

Northern District of California seeking a declaratory judgement that the
Canadian court order was not enforceable in the United States. The United
States District Court in Equustek -II (supra) granted Google preliminary
relief of injunction on the ground that would be deprived of the benefits of
U.S. Federal law that protects free speech on the internet. The observations
of the District Court are as under:
―Google is harmed because the Canadian order
restricts activity that Section 230 protects. In addition,
the balance of equities favours Google because the
injunction would deprive it of the benefits of U.S.
federal law. See, e.g., Arizona Dream Act Coal. v.
Brewer, 757 F.3d 1053, 1069 (9th Cir, 2014) (―[I]t is
clear that it would not be equitable or in the public‘s
interest to allow the state… to violate the requirements
of federal law, especially when there are no adequate
remedies available.‖)(quoting Valle del Sol Inc.
Whiting, 732 F.3d 1018, 1029 (9th Cir.2013))
An injunction would also serve the public interest.
Congress recognized that free speech on the internet
would be severely restricted if websites were to face
tort liability for hosting user- generated content. See
Zeran, 129 F. 3d at 330. It responded by enacting
Section 230, which grants broad immunity to online
intermediaries. See, e.g., Batzel v. Smit, 333 F. 3d
1018, 1027 (9th Cir. 2003)(―Congress wanted to
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 encourage the unfettered and unregulated development
of free speech on the Internet.‖); 47 U.S.C. §
230(a)(3),(b)(2),(b)(3)(―The Internet and other
interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for
intellectual activity… It is the policy of the Unites
States… to promote the continued development of the
Internet and other interactive computer services and
other interactive media [and] to preserve the vibrant
and competitive free market that presently exists for the
Internet and other interactive computer services,
unfettered by Federal or State regulation.‖)
The Canadian order would eliminate Section 230
immunity for service providers that link to third-party
websites. By forcing intermediaries to remove links to
third-party material, the Canadian order undermines
the policy goals of Section 230 and threatens free
speech on the global internet.
IV. CONCLUSION
Google‘s motion for preliminary injunctive relief is
GRANTED.)‖
60.

It is interesting to note that this judgment has been relied upon by the

Defendants to argue that any order passed, which may have a global impact
could result in a conflict of law situation and may also hurt free speech. It is
however relevant to note that the judgment in Equustek-I related to an issue
of piracy of intellectual property, and was not a free speech case. Thereafter,
the Supreme Court of British Columbia, in its judgment Equustek Solutions
Inc. v Jack 2018 BC SC 610 (hereinafter, Equustek-III) dated 16th April,
2018 noted that Google had taken a position before the U.S. District Court,
which was contrary to its position before the Canadian court. Google argued
that its right of free speech includes its right to decide as to which website it
can link to, which is different and distinct from the content which appears on
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 the said links. The Court in Equustek -III thereafter observed as under:
―[19] I find it is not open to me to revisit all issues
relating to extra-territoriality and judicial comity that
were before all three levels of court in the prior
proceedings. On those issues, the Supreme Court of
Canada has defined in advance the change of
circumstance that will justify a reconsideration:
Google could apply to vary on the basis of evidence
that the injunction would ―require it to violate the laws
of another jurisdiction, including interfering with
freedom of expression.‖ Google sys that should be
interpreted broadly, noting that the Supreme Court of
Canada cited Groberman J.A‘s reference to ―core
values‖. It says the injunction violates core American
values by interfering with freedom of speech.
[20] The U.S. decision does not establish that the
injunction requires Google to violate American law.
That would be the case if, for example, the Datalink
Defendants obtained an order from a U.S. court
requiring Google to link to their websites. But there is
no suggestion that any U.S. law prohibits Google from
de-indexing those websites, either in compliance with
the injunction or for any other reason. Absent the
injunction, Google would be free to choose whether to
list those websites and the injunction restricts that
choice, but injunctions frequently restrain conduct that
would other wise be prima facie lawful. A party being
restricted in its ability to exercise certain rights is not
the same thing as that party being required to violate
the law. I interpret the words of Abella J. as being
primarily limited to the latter situation.
[21] But even if I am wrong in that, Google has not
demonstrated that the injunction violates core
American values. I assume rights guaranteed by the
First Amendment can be regarded as core values, but
Judge Davila expressly declined to rule on Google‘s
submissions that its First Amendment rights were
violated by the injunction. Google argues the First
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 Amendment was engaged because its drives the policy
underlying both the statute and the decision. In my
view, the decision of Judge Davila should not be
interpreted to mean more than it actually says,
particularly as Google‘s application was unopposed
and the Court did not have the benefit of any contrary
arguments.
[22] The effect of the U.S. order is that no action can
be taken against Google to enforce the injunction in
U.S. courts. That does not restrict the ability of this
Court to protect the integrity of its own process
through orders directed to parties over whom it has
personal jurisdiction.‖
The request of Google to set aside the injunction was thus, rejected on the
ground that the Canadian courts had the ability to protect the integrity of
their own process through orders directed against parties over whom the
Canadian courts had personal jurisdiction.
61.

In Niemela v. Malamas (supra), an interlocutory injunction was

sought by a Canadian lawyer, against whom various defamatory statements
had appeared on the internet. A Canadian court had directed the removal of
the URLs from the Canadian domain. The Plaintiff had then sought a global
mandatory removal order. The question that was considered was as to
whether the removal from the Canada domain name was inadequate to
protect the interests of the Plaintiff. The Supreme Court of British Columbia
observed that voluntary removal by Google from the Canada domain was
sufficient. The observation of the Court is as under:
―[31] I conclude that Google‘s voluntary removal of
URLs identified by Mr. Niemela has provided an
effective means of preventing searchers in Canada
from finding the links to the offending websites. An
injunction is not therefore required to prevent the vast
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 majority of the potential harm complained of by Mr.
Niemela.
[33] Finally, the Court is reluctant to make an order
that cannot be complied with.
Mr. Niemela
acknowledges that Google is not able to comply with
an order compelling it to block defamatory search
results in the United States. Two federal statutes, the
Communications Decency Act of 1996, 47 USC (1996),
and the Securing the Protection of our Enduring and
Established Constitutional Heritage (SPEECH) Act, 28
USC (2010), protect internet providers such as Google
and block enforcement orders that would infringe on
the First Amendment right to free speech.
[34]
While United States courts will generally
recognize and enforce foreign judgments, they will not
do so if enforcement of the foreign court‘s order would
violate the corporation‘s constitutional rights to free
speech: Yahoo! Inc. v. La Ligue Contre Le Racisme et
L‘ Antisemitisme, 169 F Supp 2d 1181 (ND Cal 2001)
at 1191-1193, rev‘d on other gounds 379 F 3d 1120
(9th Cir 2004).‖
The Court, discussed the manner in which search results appear on the
internet, and observed that prior to being issued a notice, Google is not a
publisher of the snippets. However, the Court holds that the question as to
whether Google is a publisher or not once a notice is issued was not
considered by the Court. The findings of the Court are as under:
―[102] There are hundreds of millions of active
websites over the internet and trillions of webpages.
Search engines make the internet a viable and effective
information and communication resource. The internet
cannot be successfully navigated without search
services such as those Google provides. If hyperlinks
are the pathways search engines are the maps.
Without snippets, which give a sample of the text in
which the search terms are imbedded, navigating the
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 internet would be much more difficult. Users would
have to click on each URL, access the hyperlinked
webpage, and examine its contents to determine
relevance.
[103] Adoption of the passive instrument test for
publication in British Columbia was addressed by
Burke J. in Weaver v. Corcoran. The plaintiff in that
case sued over reader comments posted about him on a
forum hosted by the National Post. After referring to
Bunt v. Tilley and Metropolitan as well as Tamiz v.
Google Inc., [2013] EWCA Civ 68, Burke J. concluded
at para. 282 that the jurisprudence establishes that
―some awareness of the nature of the reader post is
necessary to meet the test of publication.‖ She
continued at para. 284:
Until awareness occurs, whether by internal review or
specific complaints that are brought to the attention of
the National Post or its columnist, the National Post
can be considered to be in a passive instrumental role
in the dissemination of the reader postings. It has
taken no deliberate action amounting to approval or
adoption of the contents of the reader posts. Once the
offensive comments were brought to the attention of the
defendants however, if immediate action is not taken to
deal with these comments, the defendants would be
considered publishers as at that date. [Emphasis
added]‖
[104] In Weaver Burke J. found that it was reasonable
to expect the defendant to pre-vet thousands of visitors‘
comments for defamatory content and that the
defendant did not therefore have the awareness of the
words necessary to meet the test of deliberate
publication: at paras. 273, 282. That reasoning
applies all the more to a search engine that
automatically trawls trillions of webpages in seconds.
[105] Added to the sheer volume of material is the
obvious difficulty of developing programming to detect
and screen out defamatory word. It is apparent that a
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 search engine could not simply by programmed to
block every site containing, for example, the words
―scam artist‖ or ―steals‖ without blocking millions of
pages of non-defamatory content.
[106] Google programs its search algorithm so that it
locates URLs likely to relate a user‘s search query. It
is not aware of the snippets and hyperlinks produced,
nor can it be, realistically. In the words of Eady J. in
Metropolitan, Google does not authorize the
appearance of the snippets on the user‘s screen ―in
any meaningful sense‖ but ―has merely by the
provision of its search service, played the role of a
facilitator: at para 51.‖
[107] In summary on this issue, I conclude that
Google is a passive instrument and not a publisher of
snippets. There is accordingly no issue for trial in
relation to defamation.
[108] I emphasize that I have not been asked in this
case to consider whether Google could be a publisher
of snippets and search results after notice of
defamatory content. In the present case, Mr. Niemela
initially raised this issue in his notice of application
but abandoned the argument when Google voluntarily
blocked the URLs that produced the offending snippets.
Accordingly, the issue does not arise on the facts of
this case.‖
62.

In Vladimir Ivanovich Telnikoff v. Vladimir Matusevitch the Court

of Appeals of Maryland observed that the laws of defamation vary from
country to country. Foreign judgments would be recognised, unless contrary
to the public policy of the enforcing State. This judgment, however, did not
dealt with publication on the internet.
63.

In Ajitabh Bachchan V. Indian Publications (supra) again the

difference in defamation and libel laws between the U.K and the U.S. was
emphasized by the Supreme Court of New York County.
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 64.

The ld. counsel for Facebook relied upon the ld. Attorney General‟s

opinion in Google v. CNIL. The case before the CJEU was pending when
judgment was reserved in the present case.

However, recently on 24th

September, 2019 the Grand Chamber of the CJEU has pronounced its
judgment. Google had appealed to the CJEU against the penalty imposed on
it by the French data protection authority- CNIL, which was imposed as
Google had refused to remove the offending search results (termed as “dereferencing”) from all its domain name extensions. The Court considered
various provisions of the E.U. Directive 95/46 and Regulation 2016/679.
The Court noted that the CNIL had regarded as insufficient Google‟s geoblocking proposal in the context of privacy of citizens. Google had taken
the stand that all links cannot be removed without geographical limitation,
as such removal would result in “disregard of the principles of courtesy and
non-interference recognised by public international law” and would
disproportionately infringe the “freedoms of expression, information,
communication and the press guaranteed, in particular, by Article 11 of the
Charter.‖
65.

Thus, the Court was considering the following three questions:
(i).

Should the right to de-referencing extend to all domain names

used by the search engine so that the links no longer appear,
irrespective of the place from where the search is initiated and even if
it is conducted from a place outside the territorial scope of the EU
Directive 95/46?
(ii)

If the answer to the above question is in the negative would it

require the search engine operator i.e. Google only to remove the
links in issue on the domain name corresponding to the State in which
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 the requests is deemed to have been made i.e. for example a country
specific domain?
(iii)

Should the right to de-referencing only mean that the results

have to be removed using the geo-blocking technique conducted on
the basis of the requestor‟s name from an I.P. address located in the
State of residence of the person who sought enforcement of the right
to de-referencing i.e. to the territory where the Directive 95/46 is
applicable?
66.

The Court, in the context of the above question observes as under:
―56. The internet is a global network without borders
and search engines render the information and links
contained in a list of results displayed following a
search conducted on the basis of an individual‘s name
ubiquitous (see, to that effect, judgments of 13 May
2014, Google Spain and Google, C‑131/12,
EU:C:2014:317, paragraph 80, and of 17 October
2017, Bolagsupplysningen and Ilsjan, C‑194/16,
EU:C:2017:766, paragraph 48).
…
70.
In addition, it is for the search engine
operator to take, if necessary, sufficiently effective
measures to ensure the effective protection of the data
subject‘s fundamental rights. Those measures must
themselves meet all the legal requirements and have
the effect of preventing or, at the very least, seriously
discouraging internet users in the Member States from
gaining access to the links in question using a search
conducted on the basis of that data subject‘s name
(see, by analogy, judgments of 27 March 2014, UPC
Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph
62, and of 15 September 2016, McFadden, C‑484/14,
EU:C:2016:689, paragraph 96).
…

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 71. It is for the referring court to ascertain whether,
also having regard to the recent changes made to its
search engine as set out in paragraph 42 above, the
measures adopted or proposed by Google meet those
requirements.
72.
Lastly, it should be emphasised that, while, as
noted in paragraph 64 above, EU law does not
currently require that the de-referencing granted
concern all versions of the search engine in question, it
also does not prohibit such a practice. Accordingly, a
supervisory or judicial authority of a Member State
remains competent to weigh up, in the light of national
standards of protection of fundamental rights (see, to
that effect, judgments of 26 February 2013, Åkerberg
Fransson, C‑617/10, EU:C:2013:105, paragraph 29,
and of 26 February 2013, Melloni, C‑399/11,
EU:C:2013:107, paragraph 60), a data subject‘s right
to privacy and the protection of personal data
concerning him or her, on the one hand, and the right
to freedom of information, on the other, and, after
weighing those rights against each other, to order,
where appropriate, the operator of that search engine
to carry out a de-referencing concerning all versions of
that search engine.‖
67.

Finally, the Court holds that the search engine is not required to

“carry out that de-referencing on all versions of its search engine, but on the
versions of that search engine corresponding to all the Member States,
using, where necessary, measures which, while meeting the legal
requirements, effectively prevent or, at the very least, seriously discourage
an internet user conducting a search from one of the Member States on the
basis of a data subject‘s name from gaining access, via the list of results
displayed following that search, to the links which are the subject of that
request.”

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 68.

Thus, the opinion of the Court was that the national Court of each

member state in the EU would have to adjudicate the right to privacy and the
personal data of the citizens on the one hand and the right to freedom of
information on the other and while weighing the two, the Court would have
to direct as to whether the search engine has to de-reference only specific
country domain name extensions or all versions of the search engine. In
effect, therefore, the language of the provisions of the EU directive and
regulations was interpreted by the Court to hold that the language as it exists
does not require a global de-referencing.
69.

More recently i.e. on 3rd October, 2019 the CJEU Eva Glawischnig-

Piesczek v. Facebook Ireland Limited6, has ruled on the interpretation of
EU Directive 2000/31 in the context of the Plaintiff‟s plea that statements
harmful to her reputation appeared on the social network of Facebook,
which she sought removal of. In the said context, the Court holds that
national courts of a member state can order blocking of access to the
information on a worldwide basis. The court‟s conclusions are as under:
―53 In the light of all the foregoing, the answer to
the first and second questions is that Directive
2000/31, in particular Article 15(1), must be
interpreted as meaning that it does not preclude a
court of a Member State from:
–
ordering a host provider to remove information
which it stores, the content of which is identical to the
content of information which was previously declared
to be unlawful, or to block access to that information,
irrespective of who requested the storage of that
information;
–
ordering a host provider to remove information
6

Case C-18/18

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 which it stores, the content of which is equivalent to the
content of information which was previously declared
to be unlawful, or to block access to that information,
provided that the monitoring of and search for the
information concerned by such an injunction are
limited to information conveying a message the content
of which remains essentially unchanged compared with
the content which gave rise to the finding of illegality
and containing the elements specified in the injunction,
and provided that the differences in the wording of that
equivalent content, compared with the wording
characterising the information which was previously
declared to be illegal, are not such as to require the
host provider to carry out an independent assessment
of that content, or
–
ordering a host provider to remove information
covered by the injunction or to block access to that
information worldwide within the framework of the
relevant international law.‖
70.

The position in India, insofar geo-blocking and global injunctions is

concerned, is not fully settled. In You Tube v. Geeta Shroff FAO 93/2018
(Decided on 17th May, 2018), a ld. Single Judge of this Court was dealing
with an offensive post, which was only removed from the India domain and
not from global platforms. In this context, the Court considered the
Equustek litigation as also the Securing the Protection of our Enduring and
Established Constitutional Heritage (SPEECH) Act, 2010 of the USA. The
Court thereafter, observed as under:
―The Court would note that it was never the case of
Google that the contents of the offending post had been
uploaded from a place outside India. It held that the
contents have been uploaded from India, hence they
were ordered to be removed from the internet so as to
restore the position as it was prior to the uploading of
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 the contents. The impugned order went on to hold that
the contents which were uploaded from India, if
transposted outside the jurisdiction of the country,
cannot be said to be beyond the jurisdiction of India,
and it could well be blocked or removed following the
path by which it was uploaded. The Court is of the
view that in the first instance, the injunction order
dated 04.06.2015, which has not been challenged, has
attained finality. It holds that on the basis of the
pleadings and/or lack of denial from Google that the
offending post had been uploaded from India, Google
was required to remove it so as to restore status quo
ante.‖
In fact, the Court observed that even if the post was uploaded from outside
India, the same ought to have been disclosed to the Court at the initial stage
and not after the interim order had attained finality. Thus, the appeal of
Google was dismissed as withdrawn. The said order dated 17th May, 2018
was challenged before the Supreme Court in SLP 24089/2018, which was
dismissed as withdrawn on 26th October, 2018. Thus, in You Tube v. Geeta
Shroff (supra), Google was directed to globally block the offending content.
71.

Recently, in Subodh Gupta v. Herdscene & Ors. CS(OS) 483/2019

Order dated 18th September, 2019, in the context of defamatory content, a
ld. Single Bench has directed removal of all the defamatory posts pertaining
to the Plaintiff, without any geographical limitation.
Interpretation of the provisions of the Act
72.

The main provision relied upon by all the platforms is Section 79 of

the Act. The said provision has been interpreted in various judgments
including the Supreme Court judgment in Shreya Singhal (supra). In
Shreya Singhal, the Supreme Court was concerned with the question as to

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 whether Section 79 and other provisions i.e. Sections 66A and 69A were
Constitutionally valid. The Court, while balancing the rights of citizens
under Article 19(1)(a) with the provisions of the IT Act deals with the
chilling effect which could result if the provisions of the same are
interpreted broadly. On the question of chilling effect, the court observes as
under:
“Chilling Effect And Overbreadth
87. Information that may be grossly offensive or which
causes annoyance or inconvenience are undefined
terms which take into the net a very large amount of
protected and innocent speech. A person may discuss
or even advocate by means of writing disseminated
over the internet information that may be a view or
point of view pertaining to governmental, literary,
scientific or other matters which may be unpalatable to
certain sections of society. It is obvious that an
expression of a view on any matter may cause
annoyance, inconvenience or may be grossly offensive
to some. A few examples will suffice. A certain section
of a particular community may be grossly offended or
annoyed by communications over the internet by
―liberal views‖—such as the emancipation of women
or the abolition of the caste system or whether certain
members of a non-proselytizing religion should be
allowed to bring persons within their fold who are
otherwise outside the fold. Each one of these things
may be grossly offensive, annoying, inconvenient,
insulting or injurious to large sections of particular
communities and would fall within the net cast by
Section 66-A. In point of fact, Section 66-A is cast so
widely that virtually any opinion on any subject would
be covered by it, as any serious opinion dissenting with
the mores of the day would be caught within its net.
Such is the reach of the section and if it is to withstand
the test of constitutionality, the chilling effect on free
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 speech would be total.‖
73.

The Court further holds that if a statute is invalid, the fact that it could

be administered in a reasonable manner cannot save it. After applying the
doctrine of severability, the Court holds that Section 66A is severable and
the provision as a whole was held to be unconstitutional. However, insofar
as Section 79 is concerned, the Court examined the provisions of Section 79
along with the due diligence provisions required under the Rules. After
considering the said two provisions, the Court held as under:
―121. It must first be appreciated that Section 79 is an
exemption provision. Being an exemption provision, it
is closely related to provisions which provide for
offences including Section 69-A. We have seen how
under Section 69-A blocking can take place only by a
reasoned order after complying with several
procedural safeguards including a hearing to the
originator and intermediary. We have also seen how
there are only two ways in which a blocking order can
be passed—one by the Designated Officer after
complying with the 2009 Rules and the other by the
Designated Officer when he has to follow an order
passed by a competent court. The intermediary
applying its own mind to whether information should
or should not be blocked is noticeably absent in
Section 69-A read with the 2009 Rules.
122. Section 79(3)(b) has to be read down to mean that
the intermediary upon receiving actual knowledge that
a court order has been passed asking it to
expeditiously remove or disable access to certain
material must then fail to expeditiously remove or
disable access to that material. 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
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 legitimate and which are not. We have been informed
that in other countries worldwide this view has gained
acceptance, Argentina being in the forefront. Also, the
Court order and/or the notification by the appropriate
Government or its agency must strictly conform to the
subject-matters laid down in Article 19(2). Unlawful
acts beyond what is laid down in Article 19(2)
obviously cannot form any part of Section 79. With
these two caveats, we refrain from striking down
Section 79(3)(b).‖
From the above decision of the Supreme Court, it is clear that the
intermediary need not apply its own mind as to whether the information
should be blocked or not. However, the actual knowledge that can be
attributed to an intermediary is only by a Court order asking it to
“expeditiously remove or disable access”. Thus, Section 79(3)(b) was read
down by the Supreme Court in the manner as extracted herein above.
74.

The question that has arisen in the present case is what would

constitute removal or disabling access within the meaning of Section 79.
Can removal or disabling access be geographically limited or should it be
global?
75.

All the platforms have unanimously agreed in their pleadings that they

have already blocked or disabled access to the URLs specified by the
Plaintiffs insofar as the India domain is concerned. The question is whether
the platforms can be directed to block the content on a global basis, or would
the jurisdiction of Indian courts only extend to directing blocking in the
country domain. In order to appreciate this argument raised by the platforms,
the provisions of the Act, read with the Rules are relevant. The same are
extracted below:

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 The Information Technology Act, 2000
Section 2(j)
―computer network means the interconnection of one
or more computers through—
(i) the use of satellite, microwave, terrestrial line or
other communication media; and
(ii) terminals or a complex consisting of two or more
interconnected computers whether or not the
interconnection is continuously maintained;‖
Section 2(k)
"computer resource" means computer, computer
system, computer network, data, computer data base or
software;
Section 2(l)
"computer system" means a device or collection of
devices, including input and output support devices
and excluding calculators which are not
programmable and capable of being used in
conjunction with external files, which contain
computer programmes, electronic instructions, input
data and output data, that performs logic, arithmetic,
data storage and retrieval, communication control and
other functions;
Section 2(w)
"intermediary" with respect to any particular
electronic message means any person who on behalf of
another person receives, stores or transmits that
message or provides any service with respect to that
message;”
Section 79
“79. Exemption from liability of intermediary in
certain cases.–(1) Notwithstanding anything contained
in any law for the time being in force but subject to the
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 provisions of sub-sections (2) and (3), an intermediary
shall not be liable for any third party information,
data, or communication link made available or hosted
by him.
(2) The provisions of sub-section (1) shall apply if–
(a) the function of the intermediary is limited to
providing access to a communication system over
which information made available by third parties is
transmitted or temporarily stored or hosted; or
(b) the intermediary does not–
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also observes
such other guidelines as the Central Government may
prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if–
(a) the intermediary has conspired or abetted or aided
or induced, whether by threats or promise or otherwise
in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being
notified by the appropriate Government or its agency
that any information, data or communication link
residing in or connected to a computer resource
controlled by the intermediary is being used to commit
the unlawful act, the intermediary fails to expeditiously
remove or disable access to that material on that
resource without vitiating the evidence in any manner.
Explanation–For the purposes of this section, the
expression ―third party information‖ means any
information dealt with by an intermediary in its
capacity as an intermediary.‖

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 Information Technology (Intermediaries Guidelines) Rules,
2011
Rule 3
―3.
The intermediary shall observe following due
diligence while discharging his duties, namely : —
…
(2) Such rules and regulations, terms and conditions or
user agreement shall inform the users of computer
resource not to host, display, upload, modify, publish,
transmit, update or share any information that –
…
(b) is grossly harmful, harassing, blasphemous
defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or
racially, ethnically objectionable, disparaging, relating
or encouraging money laundering or gambling, or
otherwise unlawful in any manner whatever;‖
76.

All the platforms i.e. Facebook, Google, YouTube and Twitter argue

in one voice that they are intermediaries under Section 79. A perusal of their
written statements shows that they claim that they do not either initiate,
select or modify the transmission, and that they observe due diligence. Thus,
sub-sections (1) and (2) of Section 79 are relied upon by the platforms.
However, in order to avail of the exemptions provided under Section 79(1)
and (2), the intermediaries have a duty to “expeditiously remove or disable
access”. The intermediaries have to remove or disable access to “that
material”. The said material would be the information or data “residing in or
connected to a computer resource”. What would be the material to which
access is to be disabled or expeditiously removed? The answer to this is in
the 2011 Rules. Under Rule 3(2), the information or data which constitutes
“that material” would be `the material or information that is grossly
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 harmful, harassing, blasphemous, defamatory…. or otherwise unlawful in
any manner whatsoever‘. Thus, the access would have to be disabled to any
material or information which falls in any of these categories from (a) to (i).
If a material or information falls in this category, upon receiving a Court
order, the intermediary has to remove expeditiously or disable access to the
same.
77.

From which locations is the removal or disabling to take place? The

answer to this is again in Section 79(3)(b). The removal or disablement to
the offending material has to take place “on that resource”. What constitutes
“that resource”? It is a computer resource in which the “information, data or
communication link” is “residing in” or is “connected to”.
78.

Computer resource is defined as a computer, a computer system or a

computer network. It is not merely a single computer. It encompasses within
itself a computer network, which would include a maze or a network of
computers. Such a computer network could be a global computer network.
Thus, a proper reading of Section 79(3)(b) would mean that if any
information, data is residing in or connected to a computer network, i.e. a
computer resource, the intermediary has to remove or disable access to the
said information or data on that resource. The use of the words “that
material” and “that resource” shows that the same is intricately connected to
the initial part of the provision which deals with “any information, data or
communication link” and “a computer resource.” 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
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 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”.
79.

Thus, the removal and disablement is intricately connected to the

information that is uploaded and the system upon which it is uploaded,
where it resides.
80.

There is no doubt that when the uploading of information or data

takes place by a user upon any computer resource of these platforms, the
same is made available on a global basis by the platforms.
81.

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.
82.

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
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 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.
83.

The term “access” is defined extremely broadly under Section 2(a)

and means “gaining entry into, instructing or communicating with the
logical, arithmetical, or memory function resources of a computer, computer
system or computer network.‖ Thus, by geo-blocking and disabling access
to viewers from India with the offending material continuing to reside in
global platforms which users can gain entry into, access would not be fully
disabled. There is an obligation upon the intermediary to disable access,
which would have to be read as meaning to completely disable access and
not partially disable access. Further, expeditiously remove or disable access
casts not just a negative obligation, but a positive obligation on the platforms
to remove the offending content from that computer resource in a manner so
as to ensure that access is fully disabled.
84.

Removal or disabling of access under Section 79(3)(b) of information

or data uploaded from India is not restricted as meaning removal or
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 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 in the judgment of Shreya Singhal (supra).
85.

The question then arises as to what should be the exact order of

injunction that is to be passed in the present case. As observed earlier, all
the Defendant platforms have agreed to disable the access to the URLs in the
India domain thus, they do not have an objection if the injunction is
restricted to the India domain by availing of geo-blocking. They only object
to the injunction being extended on a global basis.
86.

Insofar as the argument that the Act only applies to the territory of

India is concerned, a perusal of Section 75 of the Act shows that the IT Act
does have extra territorial application to offences or contraventions
committed outside India, so long as the computer system or network is
located in India. Thus, so long as either the uploading takes place from
India or the information/data is located in India on a computer resource,
Indian courts would have the jurisdiction to pass global injunctions.
87.

The capacity of these platforms to disable or block access is not really

in doubt, inasmuch as any content or data or information which is violative
of the platforms‟ own policies is always blocked or removed on a global
basis. This is admitted by all the platforms in the submissions made before
the Court, as also the written statements and written submissions that have
been filed before this Court. A perusal of YouTube‟s Community Guidelines
shows that the platform asks users to refrain from posting content with
nudity/sexual content, “harmful or dangerous content”, which is described as
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 videos that “encourage others to do things that might cause them to get
badly hurt‖, hate speech, violent or graphic content, harassment and
cyberbullying, spam, threats and content that violates copyrights. The
YouTube Terms of Service further state as under:
“YouTube reserves the right to decide whether Content
violates these terms of service for reasons other than
copyright, such as, but not limited to, pornography,
obscenity, or excessive length. YouTube, may at any
time, without prior notice and in its sole discretion,
remove such Content and/or terminate a user‘s
account for submitting such material in violation of
these Terms of Service.‖
Twitter‟s Terms of Service state that all content is the sole responsibility of
the uploader, and that Twitter may not monitor or control the content posted
via its services, and cannot take responsibility for it. However, it states that it
reserves the right to remove content that violates the User Agreement,
including copyright/trademark violations, impersonation, unlawful conduct
or harassment. Facebook‟s Community Standards forbid “credible
statements of intent to commit violence”, content from “dangerous
organizations and individuals”, promoting/publicising crime, calling or
advocating physical and/or other harm, content related to “regulated goods”
such as drugs, firearms etc, content that encourages suicide or self-injury,
content with child nudity/sexual exploitation of children, hate speech,
violence and graphic content, sexual solicitation, “cruel and insensitive”
content, spam, false news and content violating intellectual property. 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.
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 88.

The Defendants have relied upon the judgment in Suresh Jindal

(supra) to argue that the Court ought not to grant an injunction against
exhibition in foreign countries. On the basis of this judgment, it is argued
that the injunction should be restricted only to a medium available in India.
In this judgment, the Supreme Court has observed as under:
―7. We have pondered on the nature of the relief that
should be given to the petitioner. As we have already
said, there is no doubt in our minds that, whether there
was a concluded contract as claimed by the appellant
or not, the appellant did play some part in making the
film possible and that the respondents are acting
unreasonably in denying him the benefit of the limited
acknowledgment he is entitled to have. In view of
respondent's disinclination to extend even this courtesy
to the appellant, we were initially inclined to issue
directions to the respondents to effect necessary
changes in the title shots and introduce an
acknowledgment of the appellant's services in
appropriate language before distributing or exhibiting
the film and its copies. We have no doubt that the grant
of such a direction would be absolutely within the
scope of suit and would mete out proper justice to the
appellant. On second thoughts, however, we refrain
from doing this. We learn that, though the picture was
shot in India, it is being exhibited only in foreign
countries. Even if we give a direction as proposed, it
might be difficult for this Court to ensure that the
respondents carry out these directions. Even the
appellant would not be in a position to ensure that
such directions are complied with. It is well known that
a court will not issue directions over the compliance of
which it has no control. In view of this we think that we
should not issue such general directions as indicated
above. We, therefore, restrict the scope of the interim
relief and direct, in the interests of justice, that in case
the film is proposed to be, or is exhibited either on the
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 T.V. or in any other medium in India, it shall not be so
exhibited by the respondent or their agents unless it
carries, in its title shots, an acknowledgment of the
services rendered by the appellant to the producers in
some appropriate language. We direct accordingly.‖
A perusal of this paragraph shows that the Supreme Court clearly holds that
the grant of an injunction which would have a global effect would be
absolutely within the scope of the suit and meet out proper justice. However,
the said relief was not granted by the Supreme Court “on second thoughts”
as it would have been difficult to enforce such an injunction.
89.

In Modi Entertainment Network and Another v. W.S.G. Cricket PTE

Ltd (2003) 4 SCC 341, the Supreme Court clearly confirms the principles
that even an anti-suit injunction can be granted which will have an impact in
a foreign shore so long as the parties are subject to in personam jurisdiction.
However, such a power should be exercised sparely and in exceptional
circumstances as also for good and sufficient reasons and to prevent any
injustice. Thus, both the judgments cited before the Court do not lay down a
proposition that Indian Courts cannot give injunctions which have a global
effect.
90.

Applying these very principles to the present case, it is clear that any

order passed by the Court has to be effective. The parties before this Court
i.e. the platforms are sufficiently capable to enforce an order of global
blocking. Further, it is not disputed that the platforms are subject to in
personam jurisdiction of this Court. The argument of the platform is that
owing to the disparity in the law of defamation in the different jurisdiction,
such an order ought not to be passed.

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 Final conclusions
91.

The race between technology and the law could be termed as a hare

and tortoise race - As technology gallops, the law tries to keep pace.
92.

This Court is of the opinion that any injunction order passed by the

Court has to be effective. The removal and disablement has to be complete
in respect of the cause over which this Court has jurisdiction. It cannot be
limited or partial in nature, so as to render the order of this Court completely
toothless. If geo-blocking alone is permitted in respect of the entire content,
there cannot be any dispute that the offending information would still reside
in the global platforms of the Defendants, and would be accessible from
India, not only through VPN and other mechanisms, but also by accessing
the international websites of these platforms. It is not unknown that the
Canadian, European and American websites of Google, Facebook, You
Tube and Twitter can be accessed in India through various technological
means. This would thus result in partial disabling and partial removal.
93.

Orders of Courts are meant to be implemented fully and effectively.

While the Defendant - platforms are raising issues in respect of comity of
Courts, conflict of laws and the right of freedom of speech and expression
under Article 19(1)(a), what is to be borne in mind is also the rights of
privacy, the right of reputation of a citizen, national security, national
integrity, threats to sovereignty, etc. The balance is always hard to seek,
however, Courts can only endeavour to strike the balance. Ld. counsels for
the parties have rightly raised various concerns on both sides. This Court
has to implement the statute in its letter and spirit.
94.

The interpretation of Section 79 as discussed hereinabove, leads this

Court to the conclusion that the disabling and blocking of access has to be
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 from the computer resource, and such resource includes a computer network,
i.e., the whole network and not a mere (geographically) limited network. It
is not disputed that this resource or network is controlled by the Defendants.
When disabling is done by the Platforms on their own, in terms of their
policies, the same is global. So, there is no reason as to why court orders
ought not to be global. All offending material which has therefore, been
uploaded from within India on to the Defendants‟ computer resource or
computer network would have to be disabled and blocked on a global basis.
Since the unlawful act in case of content uploaded from India is committed
from within India, a global injunction shall operate in respect of such
content.

In case of uploads which take place from outside India, the

unlawful act would be the dissemination of such content in India, and thus in
those cases the platforms may resort to geo-blocking.
95.

Insofar as Google Plus is concerned, considering that it is only a

product of Google, the said Defendant is deleted from the array of parties.
96.

Under these circumstances, the following directions are issued to the

platforms:
i.

The Defendants are directed to take down, remove block, restrict/
disable access, on a global basis, to all such videos/ weblinks/URLs in
the list annexed to the plaint, which have been uploaded from I.P.
addresses within India.

ii.

Insofar as the URLs/links in the list annexed to the Plaint which were
uploaded from outside India are concerned, the defendants are
directed to block access and disable them from being viewed in the
Indian domain and ensure that users in India are unable to access the
same.

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 iii.

Upon the Plaintiffs discovering that any further URLs contain
defamatory/ offending content as discussed in the present order, the
Plaintiffs shall notify the platforms, which shall then take down/ block
access to the said URLs either on a global basis, or for the India
domain, depending on from where the content has been uploaded in
terms of (i) and (ii) above.

iv.

If the Defendant - platforms, upon receiving notice from the Plaintiffs
are of the opinion that the material/ content is not defamatory or
violative, they shall intimate the Plaintiffs and the Plaintiffs would
seek their remedies in accordance with law.

97.

I.A. 855/2019 is disposed of in the above terms. Needless to add, that

the views expressed herein are prima facie in nature.

PRATHIBA M. SINGH, J.
JUDGE
OCTOBER 23, 2019
Rahul/dj

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