Revisiting the Debate on the Validity of Global Takedown Orders

I. INTRODUCTION

‘Global takedown’ means the removal of content from all the domains of an intermediary, without any geographical limitation. The validity of such orders has always been a bone of contention between the countries as it raises issues of international comity, jurisdiction, freedom of speech, etc. Recently, on October 3, 2019, the European Court of Justice (CJEU) in Eva Glawishnig v. Facebook Ireland, held that the EU laws do not prohibit global takedown orders. Relying on this judgment, on October 23, 2019, the Delhi High Court in Swami Ramdev v. Facebook Inc., ordered the intermediaries to restrict global access to certain defamatory content. An increase in the number of such cases necessitates an understanding of the need for worldwide takedown of content and the issues connected therewith.

II. ARGUMENTS IN SUPPORT OF GLOBAL TAKEDOWN ORDERS

Effectiveness: Online platforms like Google, Facebook, and Twitter have different domain names based on the geographical divisions of the countries. Article 4 of the Manila Principles on Intermediary Liability specifies that when certain content is held to be illegal in a country, its removal from the Internet should be limited to its territory. However, an Internet user from such country is still free to access the restricted content from the other domain names. Due to this loophole, the entire process of blocking illegal content is rendered ineffective.

This was one of the reasons cited by the Supreme Court of Canada while passing a global de-index order in Google Inc. v. Equustek Solutions Inc. In this case, the respondent had moved against Google seeking the removal of the websites of a company known as Datalink, as the products sold by it online infringed the respondent’s IP rights. However, Google removed the links only from its Canadian version (i.e. www.google.ca). The Court observed that since the customers from Canada and other parts of the world could still purchase the products from Datalink’s website, the Canada specific takedown was not adequate. Similarly, in Swami Ramdev v. Facebook Inc., the global takedown order was passed on the same ground.

Online content is regulated by social media platforms’ own guidelines/rules: : Not all forms of speech are protected under the freedom of expression. However the intermediaries, like Google and Facebook, globally restrict dissemination of the content which violates their Community Guidelines/Terms of Service. For instance, the Community Guidelines of YouTube discourage users from posting pornography, hate speech, violent content, spam and content which violates copyrights. Recently, in X v. Twitter Inc., the Supreme Court of New South Wales passed a global injunction against Twitter. Initially, the plaintiff notified Twitter Inc. about certain offending tweets, which leaked certain confidential information related to it. In response, Twitter blocked all the fake accounts involved, as they violated the Twitter Rules on impersonation. However, when the malicious tweets continued from anonymous accounts, Twitter refused to remove them on the basis that this did not constitute impersonation. The Court opined that Twitter had a social responsibility to ensure that the future tweets made by a person, who was the user of an offending account, were removed.

III. ARGUMENTS AGAINST GLOBAL TAKEDOWN ORDERS

Jurisdictional Issues: A question arises as to the authority of the courts or the executive body of the countries which pass a global de-indexing order, as they disregard the limits of territorial jurisdiction. A Court cannot establish global jurisdiction and dictate what cannot be posted online by merely placing reliance on its domestic laws. For instance, in the Indian case Swami Ramdev v. Facebook Inc., the Court interpreted the Information Technology Act 2008 (IT Act) in a way so as to establish extra-territorial jurisdiction. The Court opined that under S. 79(3)(b) of the IT Act, if certain content has been uploaded on the computer network from the IP address located in India and it is disseminated globally, then the Indian Courts will have the jurisdiction to pass a worldwide removal order. The Court noted that the IT Act does not specify that the removal of any content which is uploaded from India has to be limited to the Indian territory.

Further, in Eva Glawischnig-Piesczek v. Facebook Ireland, the Austrian Supreme Court referred the matter to the CJEU to examine if the EU e-Commerce Directive (2000/31) allows global takedown orders. In this case, a defamatory comment was made against an Austrian politician on Facebook. The CJEU held that since Article 18(1) of the e-Commerce Directive does not specify any territorial limitation, a Member State can impose a worldwide injunction on a host provider. However, the Court observed that while taking a measure to globally disable a piece of information, it is up to the Member State to ensure that the action taken is consistent with the international law. Similar observation was made by the CJEU in the recent case of Google v. CNIL, wherein the question before the Court was whether the right to be forgotten, provided under Article 17 of the General Data Protection Regulation (2016/679, GDPR) allows the global removal of content. In this case, the French Data Protection Authority, CNIL, fined Google for not complying with its request to de-index certain data from all of its domain names. The CJEU held that under the EU Directive 95/46 (the Data Directive) and the GDPR a search engine operator is not bound to remove the data from outside the EU. Contrastingly, it also observed that the EU law does not prohibit worldwide injunction orders and that the courts of the Member States have to strike a balance between the fundamental rights of the citizens and the right to access information, while passing such orders.

Further, the Court in X v. Twitter Inc., justified its exercise of extra-territorial jurisdiction merely on the ground that the judgment did not affect the proprietary rights of the defendants. However, it admitted that the global injunction order might not be enforced in the foreign jurisdictions where Twitter was available.

Free speech: Global removal orders violate the right to access information and the freedom of expression of people around the world. Due to this reason, in Google LLC v. Equustek Solutions Inc., Google approached a United States District Court against the global injunction order upheld by the Court of Appeals of British Columbia. The U.S. Court held that the Canadian order at issue could not be enforced in the U.S., as it contravened S. 230 of the Communications Decency Act, which protected free online speech. However, in April 2018, the Supreme Court of British Columbia in Equustek Solutions Inc. v. Jack, disregarded the judgment of the U.S. Court.

Conflict of laws: As legal standards vary worldwide, the question is, who decides what constitutes ‘illegal’ content? An act which is unlawful in a particular country may be legal in some other country. A classic example of this is the LICRA v. Yahoo! case. In 2000, a French Court ordered Yahoo! to restrict access to the online auction of certain Nazi items, as the same was illegal under the French laws. As the geo-blocking technique was not yet available, the content had to be removed from all Yahoo servers which were located in the U.S. However, a U.S. Court denied the enforcement of the takedown order, as it violated the First Amendment.

On the other hand, the Lower Court in Google Inc. v. Equustek Solutions Inc., stated that since most of the nations would recognize IP rights infringement and piracy as a legal wrong, the global injunction order was justified. However, this may also give rise to a conflict-of-laws situation. For example, even if defamation is an illegal act in India the U.S. and the U.K., its standard will vary, as it is both a crime and a civil wrong in India, as compared to the U.S. and the U.K., where it is solely a civil wrong.

IV. CONCLUSION

The uncertainty surrounding the enforcement of global takedown orders still persists. While the ineffectiveness of local takedown orders is a reality, the international issues of jurisdiction, conflict of laws and free speech cannot be ignored.

The Internet & Jurisdiction Global Status Report 2019 suggests that there is insufficient international coordination to address the global legal challenges on the Internet. In the opinion of the author, to fill this lacuna, an international convention should be concluded, which would validate worldwide injunction orders. A list of actions which commonly occur on the Internet, such as defamation, IP rights infringement, harassment and pornography can be recognised as illegal by the countries under the convention. This will authorise the courts to exercise extra-territorial jurisdiction; however, such an order will be enforceable only in those countries which will ratify the convention. A high standard test shall be fixed under the convention; for instance, the courts shall examine the factors of necessity and proportionality, while striking a balance between the harm caused to the plaintiff and the global freedom of expression. A global takedown order shall be passed only in exceptional cases, where the balance of convenience favours the former.

It is believed that this solution will help in reducing the existing legal uncertainty to some extent.

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