The Kerala High Court recently dismissed a petition seeking directions to YouTube to remove an allegedly defamatory video targeting the Marthoma Church and its Bishop. [Aneesh K Thankachan v Union of India & ors].Justice TR Ravi referred to the the Supreme Court’s landmark ruling in Shreya Singhal v. Union of India to hold that intermediaries like YouTube cannot be compelled to remove content without a court order or government directive in line with Section 79 of the Information Technology Act, 2000 (IT Act)."The direction sought against respondents 6 and 7 (YouTube) cannot be granted for removal of the alleged objectionable video, so long as there are no orders of the Court finding that the material in question is defamatory," the Court said..The Court highlighted Section 69A of the IT Act to state that blocking content is permissible only when it involves violations of India’s sovereignty, security or public order."Apart from alleging that the material is defamatory, there is no specific allegation that it amounts to incitement to the commission of any cognizable offence relating to the earlier mentioned aspects like sovereignty and integrity of India, etc," the Court stated..Aneesh K Thankachan, the petitioner, approached the Court seeking redressal for grievances arising from an allegedly defamatory video uploaded on YouTube by a channel named 'i2i News'.The video, according to the petitioner, insulted the Marthoma Church and its Bishop by portraying the community in a scandalous light. Aneesh contended that the content aimed to create discord among believers and could potentially disturb public peace and law and order.The petitioner initially filed a complaint under Rule 3(2) read with Rule 4(1)(c) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules), with the Resident Grievance Officer of YouTube, alleging inaction. A separate complaint was also lodged with the Group Coordinator for Cyber Law. Dissatisfied with the lack of response, Aneesh sought judicial intervention through the writ petition before the High Court.The petitioner prayed for a series of reliefs, including directions to YouTube and its grievance officer to remove the objectionable video and other similar videos hosted on it's platform by the channel.The petitioner also stated that YouTube, as a significant social media intermediary under the 2021 Rules, failed to uphold its statutory duties of regulating content. He claimed that the video violated the platform’s community guidelines and contravened the Information Technology Act, 2000, specifically Section 69A which allows the Central government to block online content threatening national sovereignty, security or public order.The petitioner contended that the lack of action by YouTube and government authorities demonstrated a disregard for the provisions of the IT Act and related rules..YouTube’s counsel responded that the platform operated as an intermediary under the IT Act and was not obligated to decide the legality of content unless ordered by a court or government authority. YouTube argued that imposing such obligations would be impractical and contrary to the safeguards under Section 79 of the IT Act..The Court also observed that without a court order declaring the video defamatory, YouTube could not be compelled to act as intermediaries are exempt from liability under Section 79 unless they fail to act on valid court or government directives. Section 79(3)(b), as interpreted in Shreya Singhal, ensures that intermediaries are not burdened with evaluating the legitimacy of every removal request, which could lead to inconsistencies and potential misuse."Section 79(3)(b) has to be read down to mean that the intermediary, upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material, must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc., to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not," the Court said. Additionally, the Court noted that no evidence was presented to prove that the video violated the reasonable restrictions on free speech under Article 19(2) of the Constitution and there was no judicial or governmental directive for its removal.Consequently, the petition was dismissed..Advocates George Varghese (Perumpallikuttiyil), Manu Srinath, Nimesh Thomas and Sherin Edison appeared for the petitioner.Senior Advocate Santhosh Mathew assisted by advocate Riji Rajendran represented YouTube.Government Pleader Sunil Kumar Kuriakose appeared for the State.Advocate Girish Kumar V appeared for the Central government..[Read Judgment]
