Apar GuptaPress reports indicate that 22 social networking websites have been asked to put down content by a District Court in Delhi. I am relying on the information reported in the Economic Times and DNA to quote the Order, since it is not showing up on the Delhi District Court website (believe me, i tried for half an hour).
The factual details
- The proceedings appear to be a Civil Suit for Damages and Mandatory Injunction on grounds on defamation. Though this has not been quoted in the press reports, I am quite sure that this is the kind of proceeding which has been filed. As per both publications the Suit has been filed in the Court of the Ld. Additional Civil Judge Mukesh Kumar who sits in the Rohini District Courts.
- As per both publications an Order dated 20.12.2011 has been passed in the Suit ordering the take down of content. The Order is an ex-parte order. It is directed against 22 social networking websites and compliance has to be filed in court by 24.12.2011.
The Order
I am quoting excerpts from the Order as they appear in the press reports below:
“I have gone through the record carefully wherein the plaintiff has also filed a CD containing all the defamatory articles and photographs. In my considered opinion the photographs shown by the plaintiff having content of defamation and derogation against the sentiments of every community.
“In such circumstances I am of the view that plaintiff has a prima facie case in his favour. Moreover, the balance of convenience is also against the defendants (websites) and in favour of the plaintiff.”
“Moreover, if the defendant will not be directed to remove the defamatory articles and contents from the social networking websites, not only the plaintiff but every individual who is having religious sentiments would suffer irreparable loss and injury and cannot be compensated in terms of money”
Concerns
Even though I have not had a chance to check the veracity of excerpts against the Order itself or even looked at impugned content I am hazarding some broad comments subject to future correction.
- The proceeding appears to be against social networking websites. Now it is a given that social networking websites perform the function of intermediaries when they facilitate the posting, transmission and hosting of user generated content. For this the law contains a specific exemption under Sec. 79 of the IT Act. For this exemption to be availed the intermediaries, i.e. the social networking websites have to take down content on actual notification. Even the much critisised Intermediaries Rules, 2011 follow on this basic premise. Having said all this, if the Plaintiff has not sent a notification to the Social Networking Websites there may be grounds to file a Order 7, Rule 11 application and have the suit dismissed as it is barred by law.
- Also if these steps for prior-notification have not been taken by the Plaintiff before the institution of the Suit, the ex-parte order would immediately appear to be onerous.
- This appears to be one of the first times that a Plaintiff has alleged defamation not only personally on the basis of content but also for the community. These claims may be tough to sustain on grounds of defamation (though other substantive civil wrongs may succeed). The law on defamation does not allow claims on general communities and requires specific imputations. Hence lawyers cannot file defamation suits even though they cringe when they see Govinda as an unethical lawyer in Kyunki Mien Kabhi Jhooth Nahee Bolta.
- Finally the Order heavily quotes, “religious sentiments” as one of the grounds for the ex-parte order. I am left to wonder if such a ground is available in a Suit for Damages and Manadatory Injunction. A Suit is essentially a private right of action and though trusts and associations of persons can file them it has to involve a private right. I am not quite sure if “religious sentiments” are taken into account in such a private action and in suit jurisdiction.
Having said all this, I will again like to draw a caveat that I am commenting on the news reports and not the order itself. Also all my comments above are rather off the cuff reactions in which I am searching for answers rather than offering a categorical opinion.