Madras HC’s verdict jolts net activists in Tamil Nadu

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A recent Madras High Court’s directive to YouTube and Google to provide the IP address and details of a user uploading defamatory content has rattled online activists in Tamil Nadu

By R Ramasubramanian in Chennai

Can an Indian court demand the identity of the person who uploaded a particular content on an internationally accessible website? This question has gained significance after the Madras High Court passed multiple orders, the latest on October 27, directing Google and its subsidiary YouTube to provide the IP address and details of a user accused of uploading defamatory content on the video sharing site. However, Google and YouTube are hesitant to reveal the identity since this will breach the privacy clause which they have with the concerned user and make them vulnerable to privacy lawsuits in other countries.

Along with Google and YouTube, online activists of Tamil Nadu are also concerned. Reason: they fear that they can no longer seek refuge behind the anonymity offered by the internet and would stand expose not only to the state’s scrutiny but also to a barrage of litigations if the order is implemented and sets a precedent.

But what is the genesis of the court order? Lebara Foundation, a Chennai-based organization fighting child poverty, petitioned the Madras High Court to direct YouTube to remove what it called an objectionable and defamatory video against it uploaded by MS Marupakkam Seithigal. 

Hearing the petition, Justice MM Sundresh on May 13, 2016, not only directed YouTube to remove the objectionable content but also provide the IP address and other user details of Seithigal. Both YouTube and Google filed a modification petition and the same were heard by the same judge and he passed an order on June 23, 2016, reiterating his earlier ruling.

MODIFICATION PETITIONS

YouTube and Google then filed another modification petition and after hearing elaborate arguments from both sides, Justice Sundresh passed a detailed 18-page order on August 29, 2016. The judge dismissed YouTube’s contention that it had complied with the single judge’s order by blocking the viewing of the video in India but couldn’t do the same outside the country.

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The Lebara Foundation contended that it wants the IP address and the details to file a civil defamation suit against MS Marupakkam Seithigal. “The major part of the order passed by this court has been complied with. However the direction issued to furnish the correct IP address along with the name of the author of the offending URL outside the country has not been furnished with. The offending video of the website was available in the website of YouTube which could be accessed by anyone from outside the country and hence the respondent/plaintiff (Lebara Foundation) wants to have the IP address so as to proceed against these persons who are responsible for the same,” it said.

Interestingly, the court dismissed YouTube’s two major arguments: (a) YouTube and Google are only facilitators and no direction can be sought for against them and (b) furnishing the user details would expose the user to the rigor of any law that would be available in other countries. In support of his arguments, YouTube’s lawyer also cited the YouTube and Google privacy and community guidelines.

The judge also mentioned that the averments made by Google through an email to YouTube’s counsel on July 25, 2016, did not hold: “As per Section 1782 of Title 28 of the United States Code and by filing a ‘John Doe’ lawsuit in Santa Clara County, California or even invoking diplomatic procedure such as Hague Evidence Convention, which provides a mechanism for non US persons and entities who wish to obtain evidence to do so through US Department of Justice, Office of International Judicial Assistance in Washington, DC one can get the details. But this has to be done through the US Department of Justice, Office of International Judicial Assistance in Washington, DC”.

For this Justice Sundresh observed the following: “Sub Section b of Section 1782 of Title 28 of United States Code is as follows: ‘(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in manner acceptable to him’.”

JUDGES COUNTER

The High Court order also speaks about how “A John Doe Law Suit is filed if the true identity of the defrauder is unknown. A civil suit is filed using a John Doe for the Defendant’s name. It is necessary to provide all emails; letters wire transfers etc. that show that the identity or location of the Defendant is not known. The purpose of such a suit is to obtain a subpoena (it’s a document that requires its recipient to appear in court as witness) and of the unknown fraudster in order to obtain the person’s name and address in order to file a civil suit”. Quoting this section, Justice Sundresh said: “If a person is aggrieved by the offending video uploaded by an unknown Phantom, then the identity will have to be known or else there will not be any remedy in the eye of law.”

Likewise, on the privacy policy, the judge quoted Google’s own provisions: “We will share personal information with companies, organizations or individuals outside of Google if we have a good faith belief that access, use, preservation or disclosure of the information is reasonably necessary to: meet any applicable law, regulation, legal process or enforceable governmental request, enforce applicable Terms of Service, including investigation of potential violations, detect, prevent or otherwise address fraud, security or technical issues ….”

YouTube and Google appealed against this ruling and a division bench of the Madras High Court headed by Chief Justice Sanjay Kishan Kaul and Justice R Mahedevan on October 27, 2016, dismissed it. The bench said it is not some secret information affecting the personal rights of the undisclosed second respondent (MS Marupakkam Seithigal). It is only the identity and address of that person so that the Court can take appropriate process to determine the rights of two respondents (Lebara Foundation and MS Marupakkam Seithigal). The bench also gave two weeks time to YouTube and Google to disclose the IP address.

ONLINE ACTIVISTS CONCERNED

This judgment has jolted online activists in Tamil Nadu. Speaking to India Legal, they expressed fear that this would terribly affect their work. “Anonymity is the charm and strength of internet. There may be 5 to 10 percent misuse which is negligible. This ruling will have a cascading effect on the work of online activists in Tamil Nadu wherein the state government has been hell-bent upon filing defamation cases right, left and center against media persons and politicians. There are 213 defamation cases filed by Chief Minister Jayalalithaa alone and no one knows the count in the districts. By using the net’s anonymity, online activists were able to bring out leads in many corruption cases and these were later picked up by the mainstream media,” said A Shankar, a Chennai-based online activist.

Google and YouTube are hesitant to reveal the identity of users as it will breach a privacy clause
Google and YouTube are hesitant to reveal the identity of users as it will breach a privacy clause

Another online activist, Sam Ponraj, reiterated this apprehension. “This ruling will definitely affect our work. For example, on platforms like Facebook, the identity of the page administrator is not known. Now, this will expose them. For a country like India, and especially in Tamil Nadu where getting credible information from the government on any issue is extremely difficult, anonymity is a tool to bare the truth and place the same in the public domain.”

Another online activist however has a slightly different take. “Indian IT laws are strong enough to elicit the relevant information from the service providers. So the Madras High Court is well within its rights in passing an order like this. But if there is a clash between any law and Article 19 (which ensures freedom of expression) then the latter should prevail. I feel this is one case where there is a clash between Indian IT Acts and Article 19.”

He cited the recent case involving Jayalalithaa’s health. “The police have arrested 10 people for spreading ‘rumors’ on Jayalalithaa’s health. Still, hundreds of posts are regularly appearing in social media about her condition and this is crucial when the traditional media is just parroting monotonous medical statements of the hospital. If anonymity is not preserved, then not a single social media post on sensitive and important issues will be possible.”

It is not clear whether YouTube and Google will comply with the High Court’s orders or go for appeal. But the final outcome of the case will be watched closely by those who support and oppose internet freedom.

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