In a proceedings challenging the global injunction order passed by the Single Bench of the Delhi High Court, the Division Bench of Justice Muralidhar and Justice Talwant Singh asked Facebook about its stand in the present appeal.
The appeal was filed against an order passed by the Single Bench of Justice Prathiba Singh imposing a global injunction against Facebook to take down defamatory content against Baba Ramdev.
Justice Prathiba Singh in her order had held that so long as either the uploading takes place from India or the information/data is located in India on a computer resource, Indian courts would have the jurisdiction to pass global injunctions.
While hearing the arguments made by Facebook's counsel Senior Advocate Kapil Sibal, the Division Bench asked:
'Why are you challenging the order? As an intermediary, you can't contest the take down order passed by a competent court. How does the compliance with the order affects you?
Adding to that, the court further inquired:
'The person who had uploaded the content should be the aggrieved party in the present case. That person, if he wants to, should challenge the taking down order as a violation of his right to free speech.'
Mr Sibal explained before the court that it is the procedure adopted by the Single Bench which aggrieves the intermediary, and not the content of the order. He said:
'We're not espousing the cause, we're challenging the procedure adopted. Even if it's not personally affecting us, why does such an order be passed?
It was further pointed out by Mr Sibal that the Single Bench had passed the global injunction order without even making the content creator a party to the case.
Mr Sibal also argued that an intermediary can't be held liable for data hosted by it as per section 79 of the Information Technology Act.
He said that none of the exceptions mentioned in section 79(2)(b) and section 79(3) of the Information Technology Act, apply in the present case.
Section 79(3) of the IT Act takes away the immunity granted to an intermediary if the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act.
It was further submitted by Mr Sibal that the practice of global injunctions violate principles of national sovereignty and international comity. The impugned judgment interferes with the laws prevailing in other countries regarding online injunctions.