Recently, the Kerala High Court held that social media intermediaries cannot be compelled to remove allegedly defamatory online content merely on the basis of private complaints unless a competent court or authorised government authority first declares such content unlawful. The Court dismissed a writ petition seeking the removal of allegedly defamatory YouTube content and action against Google entities and digital publishers. The Court observed that intermediaries, being private entities, cannot themselves adjudicate whether content is defamatory since such a determination involves complex legal considerations requiring judicial scrutiny.
Brief facts:
The case stemmed from a writ petition filed before the High Court alleging that certain videos and online publications circulated through YouTube and other digital platforms contained defamatory statements affecting the Petitioner’s reputation and rights under Article 21 of the Constitution. The Petitioners had earlier issued legal notices seeking the removal of the impugned content and compensation, but the content continued to remain accessible on the platforms. The matter reached the High Court primarily on the issue of intermediary liability under the Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’) and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as ‘IT Rules’). The Court was called upon to examine whether intermediaries could be directed to remove allegedly defamatory third-party content without any prior judicial or governmental determination, particularly in light of Sections 2(w), 2(za), and 79 of the IT Act and the legal principles laid down in Shreya Singhal v. Union of India.
Contentions of the Petitioner:
The Petitioners argued that the impugned videos contained false and defamatory allegations which seriously harmed their personal and professional reputation, thereby infringing their fundamental rights under Article 21 of the Constitution. The Counsel contended that the Union Government and the intermediary platforms had failed to enforce the provisions of the IT Act and the IT Rules. The Petitioners asserted that YouTube and Google entities, being significant social media intermediaries, were obligated to exercise due diligence and remove unlawful content once it was brought to their notice. The Counsel further argued that the continued hosting and circulation of defamatory material violated Article 19(2) of the Constitution, restrictions relating to defamation, and justified governmental intervention. Reliance was also placed upon Rule 3 and Rule 4 of the IT Rules to contend that intermediaries cannot claim complete immunity under Section 79 of the IT Act where due diligence obligations are not properly discharged.
Contentions of the Respondent:
On the other hand, Google and other intermediary Respondents argued that YouTube merely functions as a platform where users upload content independently and therefore the intermediaries cannot be treated as “originators” under Section 2(za) of the IT Act. The Counsel contended that their role was limited to that of an intermediary under Section 2(w) of the IT Act, attracting statutory protection under Section 79 of the Act. It was specifically argued that intermediaries cannot independently adjudicate whether content is defamatory because such a determination depends upon multiple legal and factual considerations. The Respondents relied heavily upon the Supreme Court’s decision in Shreya Singhal v. Union of India to submit that “actual knowledge” under Section 79(3)(b) of the IT Act arises only through a judicial order or a valid notification issued by a competent government authority. The Union Government and other Respondents also challenged the maintainability of the writ petition and contended that the petitioners had failed to invoke appropriate civil or criminal remedies before competent forums for adjudication of the alleged defamation.
Observation of the Court:
The Court observed that the grievance raised by the petitioners was entirely founded on the allegation that the impugned online publications were defamatory in nature, but the determination of defamation could not be undertaken merely on the basis of a private complaint. The Bench noted that such an issue depends upon multiple factual and legal considerations, including the truthfulness of the publication and the circumstances under which it was made. The Court observed, “As far as the said ground is concerned, it is subjective, as it varies from person to person. Besides, it depends upon various aspects, truth behind the said content, circumstances under which the same were published, etc.”
The Bench further held that YouTube and Google entities function only as “intermediaries” under Section 2(w) of the IT Act, and therefore enjoy statutory protection under Section 79 of the Act. The Bench noted that such platforms neither create nor upload the impugned content and merely provide access to third-party communication systems. The Court held, “It is evident that, the said platform does not have any role in generating or uploading of the contents. Therefore, there cannot be any dispute that, the role that is played by the 4th respondent and its subsidiaries, is that of an intermediary, as defined under Sec.2(w) of the IT Act.”
The Court observed that the obligation of intermediaries to remove online content arises only upon fulfilment of conditions specifically contemplated under Section 79(3)(b) of the IT Act. Referring to the Supreme Court’s decision in Shreya Singhal v. Union of India, the Bench clarified that “actual knowledge” cannot mean mere receipt of allegations from private individuals. The Court noted that intermediaries become obligated to act only upon judicial orders or lawful governmental directions. The Court observed, “Thus it can be seen that, the said provision contemplates an obligation upon the intermediary to remove the content on happening of two events; firstly, upon receiving actual knowledge, and secondly, on being notified by appropriate government or its agency, as to the unlawful nature of the content.”
The Bench further noted that the legislative framework itself demonstrates that intermediaries are not expected to independently determine the defamatory nature of online content while performing due diligence obligations under the IT Rules. The Bench pointed out that the expression “defamatory” was consciously removed from Rule 3(1)(b)(ii) through a later amendment, thereby indicating clear legislative intent. The Court held, “Thus, the legislature consciously removed ‘defamation’, from among the matters pertaining to which due diligence is to be observed by the intermediary. From the above it is clear that, the defamation is not something, which needs to be taken note of by the intermediary, while observing due diligence.”
The decision of the Court:
The Court ultimately dismissed the writ petition after holding that intermediaries cannot independently adjudicate whether online content is defamatory and their obligation to remove or disable access arises only upon a judicial order or lawful governmental notification under Section 79(3)(b) of the Information Technology Act, 2000. The Court held that private allegations of defamation alone are insufficient to compel takedown action by intermediaries and reaffirmed that adjudication of defamatory content must first be undertaken by a competent authority.
Case Title: Mr. Anto Augustine & Ors. Vs. Union of India & Ors.
Case No.: WP(C) No. 9839 of 2024
Coram: Hon'ble Mr. Justice Ziyad Rahman A.A.
Advocate for the Petitioner: Sr. Adv. A.Kumar, Adv. Muhammed Firdouz A.V., Adv. Libin Varghese, Adv. A.H.Sincey, Adv. Akhil Philip Manithottiyil, Adv. M.P.Shameem Ahamed
Advocate for the Respondent: Sr. Adv. Santhosh Mathew, Adv. Riji Rajendran, Adv. Arun V.G., Adv. Mitha Sudhindran, Adv. Souradh C. Valson, Adv. Thejus Thomas Kattady, Adv. Anushree, Adv. R.S.Diwaagar, Adv. Bharadwajaramasubramaniam R., Adv. K.R.Syam Sekhar, Adv. Neeraj Narayan, Adv. Sreekumar G.(Chelur), DSGI O.M.Shalina
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