'Take Down Order Will Have Chilling Effect On Free Speech' : Google Tells Delhi HC In Subodh Gupta Case [Read Affidavit]

In the latest development in Subodh Gupta case, Google has moved an application before the Delhi High Court seeking vacation of the ad-interim injunction order to block certain URLs containing sexual harassment allegations against Indian contemporary artist, Subodh Gupta.

Google has stated in its application that Gupta had initiated the defamation proceedings, after a year of publication of the impugned articles, only to put an unreasonable restraint on the freedom of speech and expression on the internet as well as the freedom of the press. Thus, the ad-interim order ought to be set aside or else it will have a "chilling effect" on public rights and interests, it said.

The application has been moved under Order 39 Rule 4 of CPC which enables the court to vary or set aside or discharge an injunction order.

Stating that it was neither the author, creator or the publisher of the content displayed on its search engine, Google submitted that it "…merely performs the task of indexing information, in response to a search query, that is already available on independent third party websites that are beyond control and supervision..."

Rather, Google said, that the suit was bad for non-joinder of necessary parties as Gupta, being well aware of the source websites which published the impugned content, ought to have made them a party.

"Any action at a secondary level cannot proceed if the Plaintiff is unwilling to challenge the action at a primary level and seek removal of the impugned content from the source of such publications," it submitted. It added that merely directing Google to take down such URLs would not ensure that such articles do not appear on indexed search results on other search engines.

It went on to urge that no cause of action lay against it inasmuch as to make a case against Google, Gupta ought to have established that the impugned articles were "false and defamatory" and that they had been "published" by Google.

Moreover, it said that Gupta had failed to point out as to which contents of the said articles he alleged to be defamatory and the manner in which such content lowered his reputation in the society.

Further contending that the words "actual knowledge" under Section 79(3) of the IT Act were attributable to "due adjudication" through a court order, it said,

"Court cannot abrogate the right of adjudicating what is defamatory to the Plaintiff and permit and give the Plaintiff the power to adjudicate what content is defamatory and to be a judge in his own case."

Section 79(3)(b), binds an intermediary to take down objectionable content from its website upon acquiring 'actual knowledge' of the content. Such actual knowledge, as per the ruling in Shreya Singhal v. Union of India, (2013) 12 SCC 73, would mean notice by a judicial or governmental order, specifically requiring the intermediary to disable such content.

It lastly contended that the impugned ad-interim order was liable to be vacated as it was opposed to the "Bonnard Principle", as per which exceptional caution must be exercised when granting an interim injunction in cases of defamation, since their true validity can be tested only at the time of trial, after giving due hearing to both sides.

"Court should not allow an injunction order to be used as a means to stifle the publication of the impugned contents which may be in the public interest without giving the publishers due opportunity to be heard and defend it…," Google submitted.

Gupta had been accused of making unwelcome sexual advances by an unnamed co-worker, on an anonymous Instagram handle known as 'Scene and Herd', a page which is indulged in aggressively exposing inappropriate behavior in the Indian art world. She listed a series of such incidents with several women along with her own ordeal.

Subsequently, the allegations and the contents of the post were also published on Facebook and re-produced by various reporting agencies. Thus, the alleged defamatory content was a click away on Google.

Aggrieved by these posts, Gupta had filed a civil defamation suit alleging that the allegations were false and malicious and he sought "token" damages of Rs. 5 crore.

Taking note of the seriousness of allegations, Justice Rajiv Sahai Endlaw had then passed an ad-interim injunction order asking the Respondents to take down the alleged defamatory content.

"…the allegations as made in the allegedly defamatory contents, cannot be permitted to be made in public domain/published without being backed by legal recourse. The same if permitted, is capable of mischief.

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…defendants namely (i) Herdsceneand; (ii) Instagram LLC; (iii) Facebook, Incorporated; (iv) Facebook Ireland Limited; (v) Google Incorporated; and, (vi) Google India Pvt. Ltd. are also directed to forthwith, on service of the copy of this order, remove/take down the defamatory posts/articles/all content pertaining to the plaintiff and block the following URLs/web links" he said.

Reportedly, Google has removed the URLs to a few articles and three Instagram URLs, pursuant to the order.  

The matter is set to be taken up on November 18.

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