Apar GuptaThis news is ironical for a person aware of dutch courts convenient adoption of universal jurisdiction against human rights violators. Two Dutch ISP’s seem to be in disregard of an interim injunction passed by a Bangalore court restraining the operators of websites hosted on their servers from posting alleged defamatory content against the applicant. The factual matrix is best explained by the news report quoted below:
Two Dutch NGOs, claiming to be championing rights of garment factory workers in India, have been summoned by a Bangalore court to appear before it on June 25 in a defamation case filed by a jeans manufacturing firm. The case against the Clean Clothes Campaign (CCC) and the India Committee of the Netherlands (ICN) has been filed by Jeans Knit Pvt Ltd, a 100 percent subsidiary of Fibres and Fabrics International. CCC is an international network of trade unions while ICN works for the deprived people in India. These two organisations have continued to carry on a campaign against Jeans Knit on their websites in spite of a court stay on such activities, according to the complaint filed by the company which has 5,500 employees and an annual turnover of Rs.3 billion ($74 million). The case was filed in a magistrate’s court under whose jurisdiction falls the Peenya Industrial Estate, where Jeans Knit has its factory…. Others accused of defamation and summoned to appear before the court are the Internet service providers Antenna and Xs4all, it said.
Now I became aware of this incident through the commons-law mailing list where the justification for ISP’s non compliance is given as:
(i) as providers they are merely carriers and not content providers (the ‘post office argument’) and
(ii) it is up to the Indian aggrieved party to prove that the allegedly infringing sites are prosecutable under _Dutch_ law, or under international law and/or conventions. The former is surely not the case, and as India is not signatory of the Cyber-crime convention, the latter is not even arguable.
IMHO, the first assertion is incorrect, since a content carrier is innocent to the extent of its ignorance of the nature of the contents hosted on its servers. Once the illegal nature of the contents are brought to the notice of the intermediary and it fails to expeditiously remove it or comply with the order, it becomes liable. It has an obligation to stop facilitating its dissemination. This principle receives expression in most municipal statutes regulating cyberspace. According to a notice sent by the advocates of the applicants pursuant to which the criminal complaint was filed, there was a interim injunction against posting further matter on the website. In all probability this order was communicated to the ISP’s. So the ISP’s had knowledge of the contents of the website and by not restraining the operators (their subscribers) from posting further materials on the website violated the order.
The news report states that the defendants have been booked under various provisions of the Information Technology Act. Notwithstanding the extraterritorial scope of the Information Technology Act, I have my reservations as to the ability of an Indian Court to enforce its judgment against the Dutch ISP’s.