Indian Court Orders Global Takedown Of 'Defamatory' Video From YouTube, Twitter, Facebook
from the jurisdiction-fight dept
I've mentioned in the past that, from Techdirt's earliest posts, one key topic is how you handle "jurisdiction" on the internet, since the internet is global, and laws don't always work that way. Indeed, allowing for global jurisdiction for any particular government's laws would inevitably mean that the most draconian and the most limiting laws rule around the globe -- and that should worry everyone. This is why we've been so concerned about rulings concerning "global" blocking of content in places like Canada and the EU. Thankfully, just recently, the Court of Justice in the EU stopped one global application of the EU's right to be forgotten, and Canada's attempt got effectively stopped by a US court.
And now we get to see how all this plays out in India, as a court has issued a global blocking order directed at Facebook, YouTube and Twitter. The content in question appears to be a video about a book, Godman to Tycoon that the courts have deemed to be defamatory towards Swami Ramdev, a somewhat controversial "yoga superstar."
The companies pushed back arguing a variety of points including that the whole case made no sense since the person who uploaded the videos themselves wasn't even targeted with any lawsuit -- and if that person removed the videos, they would be gone worldwide. But, mostly they focused on just how wrong it is to think that an Indian court should be able to control content well outside its jurisdiction (and they point to the rulings in the Canadian and EU cases above, among others, to suggest that it will only lead to embarrassment for the Indian court to try to reach its power too far).
He further submits that a global ban on content ought to be the last resort of the Court. Such an order results in muzzling dissent. Reliance is placed on the Equustek litigation, wherein an order to remove content was passed by the Courts in Canada and when Google brought an action before a US District Court to prevent enforcement of the Canadian Court‟s order, the U.S. Court restricted the application of the Canadian court‟s order only to Canadian territory. Such judgments could severely undermine the dignity of Indian courts if global injunction orders are passed.
The companies also pointed out other problems with the case -- including that since no one has determined if the videos themselves are defamatory (just the book the videos may be based on), they shouldn't be responsible for the content of the videos -- and that all of the supposedly defamatory content is public domain as it's part of the records in the (separate) court case over the book. Another good point raised: the book in question is available globally, and no Indian court could ban the sale of the book outside of India so why is it able to do so regarding a video.
The court... doesn't seem to care much about any of that. It says it doesn't matter that the videos haven't been carefully reviewed for defamation since they're about the book that has already been deemed defamatory:
The said video clearly claims to be a summary of the book – 'Godman to Tycoon – The Untold Story of Baba Ramdev'. The publishers of the book are mentioned. The video is also conscious of the fact that the book has been banned w.e.f. 11th August, 2017, which appears to be the date of one of the orders passed in the litigation between Plaintiff No.1 and the publisher. Interestingly, the video claims that the views in the video are of those of the author of the book and that the video channel itself has no relationship with the views expressed therein. Thereafter, the video proceeds to give a summary of the book
As for the issue of geoblocking... the court's reasoning is... odd. It relies heavily on the fact that the content was uploaded from India. There's a very legalistic attempt to interpret the current intermediary liability laws in India (around pages 66 to 68) in which it more or less concludes that because the law says that platforms are required to "expeditiously remove or disable access" to the content in question, that applies globally -- because the issue is "the material" and not the location of the viewer of the material.
Thus, if any information or data has been uploaded or is residing in a computer resource i.e. a computer network, the information or data which has to be removed or disabled from that very computer resource or network. The computer resource in the initial part of the Section is the same computer resource as used in the later part of the Section. The latter resource cannot be a sub-set or a species of the former. It has to be the entire computer resource which was initially connected when the uploading of the information or data took place. Thus, if an information or data has been uploaded on a computer network, the platforms would be bound to remove it and disable it from that computer network completely. Any other interpretation of Section 79(3)(b) would not give proper meaning to the use of the words “that material” and “that resource”.
From there, it highlights the fact that the content was uploaded from India as giving the court jurisdiction beyond India.
The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.
Thus, if uploading of data which the Court considers defamatory or offensive has taken place from IP addresses located in India, then Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material, from the computer network of these platforms on to which the said information and data has been replicated. The material/information having originated from India, courts in India would have jurisdiction to direct removal of the same. After uploading of the data or information if the same has been replicated or disseminated or stored in different servers/computers in different geographical locations, the same would not mean that Courts would lose jurisdiction on the same, as the data/material/information was uploaded from India, in the first place. So long as the uploading from India led to the data or information 'residing in' the network or being 'connected to' the network, the same ought to be disabled or blocked globally. Any other interpretation of Section 79 would result in reducing the efficacy of the provision which equates the computer resource which initially created the information and the resource from where it is to be disabled or removed.
If you squint, you can kinda maybe see the logic there if you ignore basically all of the problems it would then create. But, alas, the court says if the videos are uploaded from India and made available globally, they can be taken down globally from India as well:
Removal or disabling of access under Section 79(3)(b) of information or data uploaded from India is not restricted as meaning removal or disabling or access only to users located in India. The removal or disabling is linked with “that resource” and not with the location of the user or viewer. Thus, geo-blocking as is being suggested by the platforms would not be in consonance with Section 79 or with the purport and intent of the Supreme Court....
There's also a weird bit in which the court says that because all of these platforms have terms of service that let them takedown content, there's no real problem with requiring them to take it down globally. How would that play out if platforms didn't put that in their terms of service? Or if someone uploaded the same content from outside of India? It's not at all clear.
Thus, the policies of these platforms permit them to block and disable access in terms thereof. It is not disputed that blocking and disabling access when the platforms do it voluntarily is on a global basis.
As Stanford intermediary liability expert Daphne Keller notes on Twitter, don't be surprised when more countries start demanding global blockages of content. She also points a finger at everyone (*cough* Hollywood lobbyists *cough*) who insisted that the EU and Canada should be able to block globally because those places "have the rule of law," so such processes wouldn't be abused (don't laugh -- this was argued). But, of course, China, Iran, Russia, Turkey and lots of other countries who sure would like to censor critics would insist that they, too, "have the rule of law."
I've often been told that it is OK for EU countries to require filtering, global takedowns, etc. because they "have the rule of law" & won't abuse their power. It would be nice to have a list of which countries count as "rule of law" countries for purposes of that logic.
— Daphne Keller (@daphnehk) October 23, 2019
As Keller notes, this is almost certainly just the beginning of US companies having to deal with these kinds of blockade demands around the world. And, don't be at all surprised when China, Iran, Russia, Turkey and the like all point to the courts in Canada, the EU and now India as evidence for why the US companies need to obey.
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Filed Under: blocking order, defamation, global blocking, global takedown, india, jurisdiction, swami ramdev, uploads
Companies: facebook, google, twitter
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Corporations that have global reach are SUBJECTS globally.
First, indidividual humans have rights, corporations do NOT. That's key to understanding this or any similar.
If a corporation is doing business in a country, it has agreed to abide by that countries laws as condition. Corporations do not exist without permission from gov'ts, period.
Dell computer for instance, isn't allowed to sell computers in Germany unless meet their electrical standards instead of US ones.
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Not that I expect you to answer, but…
Assume for a moment that a person in China manages to use a website with no physical presence in that country to say something critical of the Chinese government. For what reason should that website have to censor that speech worldwide if the Chinese government says it should?
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Re: Corporations that have global reach are SUBJECTS globally.
The problem with declaring that corporations do not have rights is that corporations are made of people that do.
If one person standing alone has the right to do something, why does that person lose their human rights because the person they are standing next to agrees with them?
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Re: Re: Corporations that have global reach are SUBJECTS globall
They don't, and they're free to act in their own name. But they shouldn't get a second voice when grouped up under articles of incorporation.
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Re: Re: Re: Corporations that have global reach are SUBJECTS glo
Actually, they do. Like it or not, they actually do have rights.
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Re: Corporations that have global reach are SUBJECTS globally.
Uhhh… did you forget about Hobby Lobby? Corporations do have rights.
Furthermore, your example fails because it deals with shipping a physical product to a foreign country. We’re talking about censoring information on a website from another country that extends beyond the country doing the censoring.
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Overuse Of Electronic Items makes you blind!
Corporations that have global reach are SUBJECTS globally.
First, indidividual humans have rights, corporations do NOT. That's key to understanding this or any similar.
If a corporation is doing business in a country, it has agreed to abide by that countries laws as condition. Corporations do not exist without permission from gov'ts, period.
Dell computer for instance, isn't allowed to sell computers in Germany unless meet their electrical standards instead of US ones.
Why do you think this is any different from selling physical products? Business is business, and subject to rules that individuals are not.
Now, you don't fear that you are / will be in any way now or ever affected by this order or similar, only that corporate profits will be reduced if the principle is upheld that corporations are subject to every country's laws, instead of super-national and effectively immune.
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Re: Overuse Of Electronic Items makes you blind!
Since apparently my innovative names (now) block the comments, I'll just put those in subject line and bold the first line.
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Re: Re: Overuse Trolls
Have you ever considered using a registered account an not behaving like a spammer, Blue Balls?
Didn't think so.
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Re: Re: Overuse Of Electronic Items makes you blind!
Since apparently my innovative names (now) block the comments
It's not that. We would have no way to block "innovative names" (though, your names are not innovative, they're childish puns). The problem is that your comments trigger the spam filter, because... you so regularly comment in a way that is indistinguishable from spam. Work on that and maybe you won't get caught in the spam filter so damn often.
Along those lines if you STOPPED flooding the comments every time you get caught, it would make it easier for us to actually spot your comments and release the ones caught in the spam filter.
I will ask, once again, why you do this? Why do you constantly misrepresent things, lie about us, pretend we're saying stuff we aren't... and then spamming our comments obnoxiously for a decade?
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Re: Re: Re: Overuse Of Electronic Items makes you blind!
Why does he do this? Why do I do this? Maybe because we enjoy pointing out when a total phony is trying to pass off his lack of education as legal insight? Finish school, ever? Maybe because when we see someone with no standards and no morals and no self awareness we like to point it out as he slings or ridiculous bullshit. Again and again. It's like a drug. It's called "doing good". Try it sometime.
Or not, idiot. Reply again with a fake name and fake identity, it's fun. You provide entertainment at the highest levels of American Society. Meaning me, of course, you driveling idiot.
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Projection like this should come with free popcorn.
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Re:
Projection? Faker. I'm proudly anonymous, but you go forward with a fake name, a fake profile, a fake race, fake opinions, FAKE FAKE FAKE. Am I fake? I think not. I am an Anonymous Coward, and PROUD OF IT! I AM WHAT I SAY I AM! YOU ARE NOTHING BUT A PHONY PONY! (are you MM, actually?)
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Re: Re:
If you were that proud to be anonymous, Hamilton, you wouldn't go through the effort of using TOR to change your IP address geolocation symbol.
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Re: Re:
You’re a loser bro.
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Re: Re:
If it’s a “fake name”, then it’s a pseudonym, which is no worse than posting anonymously.
I don’t see how a blank profile can be “fake”.
I have no idea what “fake race” is referring to, but you provide no clarification or evidence.
As for “fake opinions”, again, you provide no evidence.
In short, you’re full of shit.
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Re: Re: Re: Re:
How's that Shiva Ayyadurai election fund coming along, Hamilton?
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Re: Re: Overuse Of Electronic Items makes you blind!
Names don’t get comments stuck in the filters. Only the content does that.
Want proof? The comment that you posted under your “innovative name” is actually up. We can all see it. At worst, the comment was stuck in the spam filter temporarily. That’s happened to me, too, but I never raised a stink about it or attempt to repost the comment when that happens. I just wait. So far, every single one has gotten through eventually. You need more patience.
Not using a registered profile (and feel free to call yourself “An Anonymous Coward” if you’d like) and spamming comments only exacerbates your problem, since comments from ACs have to go through a stricter filter than comments from registered users, and too many anonymous comments with identical or near-identical content in a short period of time would trigger most spam filters.
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Re: Overuse Of Copyright
First, individual humans have rights, corporations do NOT.
Starting with Copyright, right? Corporations - like Hollywood movie companies - CAN'T hold Copyrights to the movies they make by your "logic."
Any what the hell does this have to do with the article, which you clearly haven't read?
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Re: Overuse Of Electronic Items makes you blind!
How can a corporation control and enforce a copyright when you believe corporations have no legal rights?
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Re: Overuse Of Electronic Items makes you blind!
Just to address your point, but from a different angle, should the Internet as a whole be subject to Sharia law, and should that law apply to all companies and people who use the Internet regardless of where they live or operate?Just to address your point, but from a different angle, should the Internet as a whole be subject to Sharia law, and should that law apply to all companies and people who use the Internet regardless of where they live or operate?
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the removal or disabling is linked with “that resource” and not with the location of the user or viewer.
So if we apply this consistently, that means that India does not have any jurisdiction over any content that was not uploaded inside of India... meaning they would be unable to block that video at all if some enterprising person ripped the existing Youtube video and re-uploaded it from a computer in, say, Pakistan.
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Re:
That was my thought as well. If 'it was uploaded in India, therefore Indian courts have jurisdiction' is the argument they want to go then as soon as someone outside India uploads a copy the jurisdiction argument goes out the window, and if the copyright owner doesn't want to issue a takedown claim on the video for some reason then it would seem their hands would be tied unless they wanted to really make a power-grab and argue that anything about content that originated in India falls under their courts' jurisdiction, which probably wouldn't go over very well.
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Re:
Yeah, that was going to be my comment. Their argument leaves a massive and easy workaround for anybody outside of India to repost the video, and then the publicity surrounding this case guarantees a wider audience for that repost.
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Anyone belong to an HOA??
I hope you didnt sign a contract, as they could bring it to court because you uploaded a picture of a closed area.. for rent or lease or sale... and the HOA does not allow that..
HOA=home owners association..IYDK..
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Re: Anyone ??
ECA What does that have to do with India, or global censorship?
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Re: Re: Anyone ??
Corporate contracts..
They can say/do require anything they wish...even that you cant have an antenna or sat dish on your home..
They can require you to NOT update your home without ASKING them first..
go read up on some things that have happened.. its great..
YOu live by fed rules, state rules, even city rules then sign those away for an HOA..
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Re: Anyone belong to an HOA??
In Virginia, HOAs are empowered by state law and can effectively tax and take property for failure to pay those taxes. That likely makes them extensions of the government and subject to the Constitution.
But your example wouldn't fly. While no HOA would ever acknowledge it, the Virginia law that authorizes HOAs explicitly exempts real estate signs from HOA regulations.
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Re: Re: Anyone belong to an HOA??
HOAs, little third reichs for the paranoid and narcissistic.
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Re: Anyone belong to an HOA??
No need to sign a contract. By accepting a deed, you are at least liable to the extent of the property within the HOA jurisdiction.
Likewise, I suppose if you were providing content in India which is not approved by the local censors, you might be liable to the extent that the content is found in India. Obviously this will not reach outside of India: if the content is found outside of India, then there ought to be no jurisdictional reach.
A company with no assets in India would be hard to coerce into compliance with India's censorship. A company which finds the local regime uncomfortably may be able to retreat, shuttering its Indian operations and moving such jobs as it will to some other, less oppressive, area.
Some country might find it advantageous to create a sort of free speech safe haven, where the government is not allowed to regulate speech and will not allow other countries to reach in to regulate speech. Companies could set up shop in such "first amendment" areas and avoid a fair amount of unpleasantness.
The effect of job-repelling efforts such as Indian censorship and job-attracting efforts such as "first amendment" safe zones may be a concentration of jobs in the latter at the cost of the former.
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Re: Re: Anyone belong to an HOA??
That only works for popular sites if they are low data, and not sensitive to a bit of latency. High bandwidth sites, such as video sites need some form of caching in the countries where they have a larger audience, as the connections between countries do not have the capacity to serve that audience from outside the country. Google has a presence is so many countries because it needs a bit barn in each of those countries.
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This ruling will not affect global corporations at all. They have lawyers to defend themselves, and they have no corporate reason to care in detail what information is uploaded to their servers by individuals: so long as people are talking through their servers, their ends (and their ads) are served. The only content they don't want is content that turns users away (is offensive).
But this ruling will be devastating to INDIVIDUALS: private citizens who do not have their own lawyers, or their own websites or internet servers, who depend on the services of global communication corporations to, well, communicate with other individuals. If any government anywhere can shut me up, then--can't quote Bible verses, that's a crime in Iran. Can't talk about politics, ditto North Korea. Can't talk about pompous sociopathic leaders, ditto Turkey or France. Can't talk about Nazis, ditto Austria. Can't talk about news, ditto Germany or Spain. Can't talk about freedom, ditto China. Can't talk about blue jeans or pop muzak, ditto Russia. Can't talk about financial cons, ditto Italy. Can't talk about holocaust deniers, ditto Britain. Can't talk about renting houses, ditto the Democratic Republic of Berkeley.
Me, I'm planning to spend a few thousand dollars to get elected mayor of Backwater Pond Township, Massachusetts, then offer to criminalize any website on the planet--for a small fee, of course.
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But, of course, Adams, Los Angeles, King, San Bernadino and lots of other [counties] who sure would like to censor critics would insist that they, too, "have the rule of law."
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Am I the only one who wants to make an archive of every piece of art/text a foreign government tried to ban in the United States again? I honestly don't even want to look at most of that stuff but the fact they keep trying to ban me from seeing it is making me consider making the archive.
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If India believes courts have global jurisdiction...
I wonder if they would honor an injunction against that judge to not violate the sovereignty of other nations, issued by a court in a country that is not India?
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U.S. too
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Re: U.S. too
I don't think the US claimed jurisdiction over Ireland at all. The US law is that if a foreign government tries to remove the same info from a server in the US they have to go through the US court system and that government probably won't succeed if it's protected speech. I believe the US has more protected speech than anywhere else in the world including calling someone a nazi as a slur even if that slur isn't intended to be a factual claim of nazi party membership.
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I Think the eu has laws like the usa, it has european laws coming in re filtering content, posting snippets of news etc
i don,t think it expects countrys outside the eu to follow these laws,
i don,t expect youtube usa to block video,s that army be banned in iran
or saudia arabia .
Would india like it if iranian courts asked for certain video,s, on human right,s or womens rights to be banned around the world ,
if some of those video,s featured indian creators or human rights campaigners .
If we follow this to its logical extreme ,than all websites like youtube that host user uploaded content
will fall down to the lowest standard of human right,s
Any video that might offend india, china, pakistan ,russia,or china will be blocked as it might offend someone somewhere if it discuss,s
human right, religion, or politics .
And this is not even counting videos featuring news clips that might be fair use in america and illegal in another country .
Most content creators cannot afford to pay a legal expert to check is a video legal and compliant with laws all around the world .
Theres already soft censorship happening in film,s ,
many hollywood film,s have content cut out by the film maker
in order not to offend the chinese government ,
china is now a major market for film,s and video game,s .
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It's not extrajudicial since it only applies to those who wish to do business in India.
Section 230 will remain broken until individuals defamed in search results have recourse, whatever that may be. Right now people are defenseless. Perhaps people who act on defamation they find to deny people employment or housing should be held liable, or that type of damage can be used to defeat 230 after proper notice is given.
There's no way history is going to look kindly on how we let individual lives be ruined...because INTERNET!
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Re:
It's not extrajudicial, technically under US law, it comes from corrupt judges acting without jurisdiction when they try to apply their foreign law to the territory of the United States without going through US due process.
First, the judges are trying to mandate US companies operating in the US act as their agents without proper compliance with the foreign agent registration act.
Second the foreign judges are interfering with right of all people in the United States to receive protected speech (if it is in fact protected under US law). It doesn't even matter if the company that got sued agrees, it's unlawful either way.
The countries applying these types of rulings will likely, and correctly, eventually find themselves under US sanctions. Freedom of speech means I have the right to see the information regardless of whether the multinational corporation or the foreign government they're acting on behalf of objects.
Section 230 will remain broken until individuals defamed in search results have recourse
Section 230 is the best idea we have for preserving free speech right now. I actually doubt the anti-section 230 people will like what they get if 230 is repealed because all they will get is first amendment scrutiny which may look almost identical to section 230.
There's no way history is going to look kindly on how we let individual lives be ruined...because INTERNET!
The internet is likely to be looked on more favorably in history than the foreign governments trying to rule unwilling populations in foreign lands.
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Re:
[Jhon Smith asserts facts not in evidence as always]
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