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Photo: iStock
Photo: iStock

Opinion | We need a balanced approach to internet takedowns

Our courts should observe restraint while ordering the removal of offensive internet content

This Saturday, a YouTuber called MrBeast released a video that went viral around the world. To celebrate crossing 20 million subscribers, he vowed to plant 20 million trees by 1 January 2020. That’s 20 million trees in just over two months, a feat that is humanly impossible. But MrBeast is no ordinary person. He is part of an elite group of social media influencers whose every utterance reaches millions. So, MrBeast reached out to dozens of other influencers like him to rally them to his cause. They all put out videos for their followers to get the message pushed out, and within 24 hours, his website—teamtrees.org—had secured commitments to plant 3.5 million trees. At the time of writing this, that number has crossed 6 million.

There has never before existed a platform for global social change quite like the internet. It defies national borders and regional differences, and, now that video has become the primary medium of communication, has torn down cultural and linguistic barriers. If the #TeamTrees campaign is successful, it will be just another in a long line of viral social movements that have been made possible by the global reach of the internet.

As much as the internet is a blessing, the fact that it can be accessed from everywhere gives rise to conflicts between national laws that are hard to reconcile. The very concept of an international network, through which data flows unimpeded between countries, threatens traditional notions of sovereignty, challenging courts and governments to find new ways in which to enforce local laws while still availing themselves of the benefits of the network. As the stakes have grown higher, governments have allowed their frustration to show, imposing regulations such as data localization and requiring decryption of encrypted traffic to wrest back some control.

Last week, the Delhi High Court ordered three of the largest technology companies of the world to take down offensive content, not just in India but globally as well. This is not the first time that Indian courts have issued orders with extra-territorial consequences, but rarely ever have they required intermediaries to ensure that the content in question is not just placed beyond the reach of all in India, but asked for it to be expunged completely from servers everywhere.

The judgment was delivered in a case filed by Swami Ramdev against Facebook, Google, YouTube, and Twitter, seeking the removal of allegedly defamatory material and videos from their services. None of the platforms objected to disabling access to the content in India. However, they all resisted the request for a global takedown, arguing that laws vary from country to country and that India should not insist that its decision be followed in other jurisdictions. If the defendants were to comply, they could be accused of violating the laws of the other countries in which they operate. They argued that if global takedowns like this became the norm, it would give rise to forum shopping, with litigants hunting for jurisdictions with the least tolerance, reducing free speech on the internet to its lowest common denominator.

Justice Prathiba Singh rejected these arguments, ruling that whenever unlawful content is uploaded to the internet from within India, the intermediaries that are ordered to disable access to it must do so completely. If the content is only removed from the Indian websites of the defendants, it would still be accessible from India, not only through virtual private networks and other technical measures, but also by simply accessing the international websites of these platforms. Issues of a comity of courts, conflict of laws, and restraints on the right to freedom of speech and expression need to be balanced against the rights of privacy, reputation of a citizen, national security, national integrity, and threats to sovereignty. The only exception to this rule is if the content is uploaded from outside India, in which case geoblocking would be appropriate.

This logic is flawed. India does not have the right to dictate how other countries should deal with data simply because that data was uploaded to the internet from within the country’s borders. I am not questioning the authority of Indian courts to issue, where appropriate, orders that have a global effect. However, just because they can does not mean they should.

Our courts have always operated with restraint, only taking proportionate action when necessary. They should demonstrate the same restraint while ordering the takedown of offensive content on the internet. Undeniably reprehensible material, such as child pornography and extreme acts of violence, should be taken down everywhere in the world. However, for everything else, we should offer other countries the courtesy of being able to deal with it within their territory, according to their own standards.

If we fail to appreciate nuances such as these, we would end up curtailing our ability to benefit from all that the internet has to offer us.

The #TeamTree campaign demonstrates just how powerful the internet can be in effecting change on a planetary scale. However, global campaigns like this could easily run afoul of national and local regulations. People who put them together rarely have the wherewithal to review the regulations that prevail around the world, or mobilize sufficient legal resources to deal with challenges. If they are subjected to global takedown orders, the likes of which have been issued by the Delhi High Court, they will have no option but to fold up.

Rahul Matthan is a partner at Trilegal and author of ‘Privacy 3.0: Unlocking Our Data Driven Future’

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