Google LLC, on Wednesday, contended before the Delhi High Court that India’s new IT rules for digital media are not applicable to the company because it is a search engine and not a ‘social-media intermediary’ as classified by the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021. A Division Bench comprising Chief Justice DN Patel and Justice Jyoti Singh issued notices to the Centre, Delhi Government, Internet Service Providers Association of India, Facebook, and a woman on whose plea a Single Judge Bench had, on April 20, passed the ruling against which Google filed their plea on Wednesday.
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The Court, however, did not pass any interim order when Google sought protection against any coercive action for non-compliance of the template or guidelines laid down by the Single Bench. In the petition, Google sought interim protection by the Division Bench against the Single Bench’s characterisation of the company as a ‘social-media intermediary’, and clarified that it was a search engine and not an SMI.
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Google clarified in its appeal that although it falls under the category of ‘intermediary’ defined in Section 21(1)(w) of the IT Act, which has a much wider ambit, it cannot be characterised either as a Social Media Intermediary (SMI) or Significant Social Media Intermediary (SSMI) under the new Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021. “There are broadly two regimes in play. One is the obligation of an intermediary to deal with complaints brought to it under the grievance redressal mechanism, where the intermediary is required to address complaints by individuals aggrieved and the other is the regime of complying with the takedown orders issued by courts or statutory authorities empowered to do so. The judgment conflates these two and creates obligations of censoring by private internet platforms, which is not only incompatible with the Rules but, in fact, is contrary to the mandate of the law in which private entities are not created as censors of content,” said Google in its petition.
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The Single Bench ruling passed by Justice Anup Jairam Bhambhani had come on a petition filed by a woman who contended that her photographs were taken from her Facebook and Instagram accounts without her consent and uploaded on a pornographic website. While issuing a slew of directions to deal with the complications in removing the content, the judge classified Google as a ‘social-media intermediary’ as provided under the new rules .
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The Single Judge order had also said that besides removing or disabling access to an offending content to be effective even within India, a search engine must block the search results throughout the world since no purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant. It also directed the police to ensure the offending content was removed and directions were also issued to search engines such as Google, Yahoo and Bing “to globally de-index and de-reference” the offending content from their search results.
It asked search engines to endeavour to use automated tools to proactively identify and globally disable access to any content, which is exactly identical to the offending content that may appear on any other websites/online platforms. It further stated that if an intermediary fails to fulfil the conditionalities and obligations cast upon it, it was liable to forfeit the exemption from liability available to.
“The Single Judge has misinterpreted and misapplied the New Rules 2021 to the appellant’s search engine. Additionally, the Single Judge has conflated various sections of the IT Act and separate rules prescribed thereunder, and has passed template orders combining all such offences and provisions, which is bad in law,” said Google in its appeal.
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