Saying it will have a “chilling effect on freedom of speech and expression and be against public interest”, Google Inc. moved the Delhi High Court Monday, seeking to vacate an order that directed them to take down anonymous posts containing sexual harassment accusations against artist Subodh Gupta that emerged during last year’s #MeToo movement.
The application came up for hearing before Justice Rajiv Sahai Endlaw who sought the response of the parties involved in the case.
Facebook apprised the court that they have removed the post about Gupta from the ‘Herdsceneand’ Instagram account, which can no longer be viewed by users in India, although users outside India can view the posts. Meanwhile, Google Inc. has removed the URLs to a few articles and three Instagram URLs.
Urging that modification of the High Court’s order is needed, Google Inc. said that it “owns and operates an online search engine — Google Search Engine — which merely performs the task of indexing information, in response to a search query, that is already available on independent third party websites that are beyond their control and supervision and they do not create, own or control any content on third party websites”.
“Hence, the Applicant (Google Inc.) is neither the host nor the publishers of the third party content displayed on the Google Search Engine,” the High Court was told.
Highlighting that none of the media/news reporting agencies have been added as a party to the defamation suit, in which an interim order was passed in Gupta’s favour, Google Inc., now known as Google LLC, said in its application that “the present proceedings have been clearly initiated with a view to put an unreasonable restraint on the freedom of speech and expression on the internet as well as the freedom of the press”.
“It is settled law that in a case of alleged defamation, the threshold for considering the prima facie strength of granting an injunction, especially at the interim stage, has to be necessarily of a very high order. A publication may not be restrained if the defendant says that it intends to justify it or to make a fair comment on a matter of public interest,” it said.
“This is in order to keep a fair balance between the constitutional right of free speech and individual rights. In the case such as the present one, where the plaintiff has failed to even implead the authors/publishers of the alleged defamatory articles, the court is deprived of a counter view or justification of the said articles, which goes directly contrary to due caution that must be exercised before grant of such injunction,” the application stated.
The High Court will now hear the matter on November 18 when it is scheduled to hear Gupta’s defamation suit against Instagram handle — Herdsceneand — and others, seeking Rs 5 crore damage caused to him and his family due to the alleged defamatory posts.
Senior advocate Kailash Vasdev and advocate Neoma Vasdev, appearing for Gupta, had contended that the “defamatory posts have been made behind a veil of anonymity, causing irretrievable and incalculable damage to the plaintiff, his family, his right to livelihood and reputation”.
At this, the High Court on September 18 had restrained Herdsceneand from posting on its account any content pertaining to Gupta. It also directed Herdsceneand, Instagram LLC, Facebook Incorporated, Facebook Ireland Limited, Google Incorporated and Google India Pvt Ltd to “forthwith” take down the alleged defamatory posts/ articles/all content pertaining to Gupta and block around 18 URLs.