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17. Mr. Sanjeev Sindhwani, ld. Senior Counsel appearing for Twitter submits that the grant of a global injunction can have a regressive effect even on India. He relies upon Section 13 CPC to submit that India also prescribes various conditions to recognize judgments of foreign Courts. He further relies upon the Sections 3 and 4 of the IPC to argue that if there are extra territorial offences, an order of an Indian Court would not be enforceable abroad. The principles of comity of courts and comity of nations requires Courts to respect the territoriality of their jurisdiction. The contraventions under the Act cannot be dealt with by a Civil Court as they are criminal offences. The High Court of Justice in Northern Ireland, in George Galloway v. William Frederick Frazer & Ors. [2016] NIQB 7 has held that no global injunction can be granted. The Defendants have already complied with the orders on a pan-India basis and geo-blocking has been done. The Plaintiffs have not complained of any violations of the order that has already been passed, and under the provisions of Order VI Rule 4 CPC, pleadings are required to be specific and in the absence thereof, no injunction can be granted. The mere apprehension of use of VPN and proxy servers to access global websites cannot be sufficient to presume that the data is likely to be transmitted and accessed in India. In Suresh Jindal v. Rizosli Corriere Della Sera Prodzioni T.V. S.p.a. and Ors [1991] Suppl. (2) SCC 3, the Supreme Court, being conscious of the limitations, granted an injunction against dissemination only in India. In view of the fact that the global standard to protect free speech could be very low in various jurisdictions, Indian Courts, which have a higher standard for free speech, should not impose the said standards internationally. In Shreya Singhal (supra), it has been held by the Court that the injunction, if any, has to be in the narrowest terms.

21. He submits that Section 79 of the Act is the exception to the rule that every publisher is liable. The platforms are publishers and since they intend to seek protection and safe harbour under Section 79 upon being served with a Court order, they have a duty to implement the same. Rule 3(2) of the Rules has to be part of the user agreement, and if any content is defamatory, the same has to be taken down. Intermediaries cannot be judges in their own cause and cannot attempt to police content on their own. Since they do not claim any responsibility at the stage of uploading, the removal of content has to be without hesitation. If they question the orders of the Court, they no longer remain neutral intermediaries and are liable as publishers. He distinguishes the judgment in Ajitabh Bachan (supra). He relies upon the judgment in Niemela (supra) to argue that global blocking was sought. He submits that on a VPN network, the video on global platforms is easily available in India. While the platforms are willing to protecting trademarks and copyrights on a global basis, they are refusing to protect a person‟s reputation. The platforms have not included defamation as part of their policies and hence where defamatory content is concerned, Court orders are required. While the platforms, based on their own policies, do remove content on a global basis, they refuse to do so on the basis of Court orders. The reason for such resistance by the platforms is because the advertising revenue of the platforms depends on the number of hits they get on the shared content. Controversial content gets more hits, and thus if the said content remains, the platforms earn greater revenues. He submits that the publication in the Journal of Media Law in fact states that intermediaries ought to stay out of judging and leave the same to the Courts.

Final conclusions

91. The race between technology and the law could be termed as a hare and tortoise race - As technology gallops, the law tries to keep pace.

92. This Court is of the opinion that any injunction order passed by the Court has to be effective. The removal and disablement has to be complete in respect of the cause over which this Court has jurisdiction. It cannot be limited or partial in nature, so as to render the order of this Court completely toothless. If geo-blocking alone is permitted in respect of the entire content, there cannot be any dispute that the offending information would still reside in the global platforms of the Defendants, and would be accessible from India, not only through VPN and other mechanisms, but also by accessing the international websites of these platforms. It is not unknown that the Canadian, European and American websites of Google, Facebook, You Tube and Twitter can be accessed in India through various technological means. This would thus result in partial disabling and partial removal.