June 2, 2021 5:40:47 pm
Google has moved the Delhi High Court against a single-bench judgment which allegedly “mischaracterizes” it as a ‘significant social media intermediary’ as defined under the new IT Rules, 2021, and has contended that the requirement of observing additional due diligence cannot be extended to it since it is only a search engine which is called an “intermediary” under the IT Act.
The division bench of Chief Justice D.N Patel and Justice Jyoti Singh issued a notice to the Centre, Delhi Police, Internet Service Providers Association of India in the appeal filed by Google and listed the case for hearing on July 25.
While issuing different directions in a case in which a woman’s photos without her consent were downloaded from Facebook and Instagram and then uploaded on a pornographic website, a single bench of the HC on April 20 ordered the search engines including Google, Yahoo and Bing to proactively identify and globally disable access to any similar offending content by making them non-searchable on their platforms.
Contending that Rule 4 of the new rules does not apply to it, Google has said that its function is to only crawl and index existing information as available or published or hosted by independent third-party websites and such a process is done in a passive and automated manner with “no human intervention or inter se user interaction”. However, Google has clarified that certain rules under the new IT Rules would be applicable to it as an intermediary.
Rule 4 casts different additional obligations on the significant social media intermediaries and requires them to appoint a Chief Compliance Officer, appoint a nodal contact person for 24×7 coordination with law enforcement agencies, and appoint a resident grievance officer in India.
“Ld. Single Judge failed to note that Rule 4 is aptly titled “Additional due diligence to be observed by significant social media intermediary.” The said provision being clear and unambiguous in its applicability to only a particular kind of intermediary, there was no occasion to expand its applicability to other kinds of intermediaries,” reads the petition.
Google has also argued that the judgement passed by the single bench “cast onerous and impossible obligations” on the search engine to proactively identify and remove the offending content.
“The impugned direction is impossible for a search engine to comply with given its automated and passive functioning. It also violates the settled principle that no proactive monitoring can be directed as it has a chilling effect on free speech and may result in over-blocking of even content that is otherwise legitimate,” it has argued further.
It further has argued that general observations on the issue of global removal is “overboard” and that each content has to be adjudged in its own facts and context. A template order for “all grievances” is in contravent of the law, Google has argued.
“The Ld. Single Judge has concluded by directing that non-compliance with the directions would entail loss of immunity under Section 79 and ipso facto attract penal consequences under Section 85 of the IT Act,” reads the petition, adding Google has been exposed to the risk of “needless contempt and penal proceedings and loss of immunity” for “perceived’ non-compliance of the impugned judgment or others like it, without being heard, which would be highly prejudicial”.
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