Update 14 November 2019 the judgment is, unsuprisingly, being appealed.
‘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.’ (see further below).
Thank you Daphne Keller for flagging CS (OS) 27/2019 Swami Ramdev et al v Facebook et al at the Delhi High Court on 23 October. Defendants are Facebook Inc, Google Inc, YouTube LLC, Twitter etc. The allegation of Plaintiffs is that various defamatory remarks and information including videos, found earlier to have been defamatory (a judgment currently before the Supreme Court without having been stayed), are being disseminated over the Defendants’ platforms.
At 6 Prathiba M Singh J summarises the parties’ position: 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.
Particularly in the review of plaintiff’s submission at 8 ff, the parallel is clear with the discussions on the role of intermediaries in Eva Glawischnig-Piesczek v Facebook. Reference of course is also made to Equustek and, at 64, to the CJEU in Google v CNIL. Facebook refers to the material difference between defamation laws across the globe: at 10: ‘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.’
At 44 ff Prathiba M Singh J extensively reviews global precedent, and, at 69, to Eva Glawischnig-Piesczek v Facebook. At 88 ff this leads justice Singh
Firstly, to uphold fairly straightforwardly the court’s power to order global delisting given the origin in India of the original act of uploading: ‘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.’
>>>Clearly the authority of the finding (likely to be appealed) may therefore be limited to situations of content uploading from inside the jurisdiction.
Further, at 99, to make an effectiveness argument: ‘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 latter element, again, may limit the authority of the judgment. I am not au fait with the ground for jurisdiction in the case at issue.
Finally, at 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’. This does not imply the law simply laying down to have its belly rubbed. Exactly my sentiment in my post on the UK AI case.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 18.104.22.168, Heading 22.214.171.124.5