By Lucy Rana and Pranit Biswas
The Supreme Court of New South Wales, Australia, recently upheld the decision regarding holding the publisher of any content liable for the comments made by third-party individuals/entities, on the cyberspace. The case involved a former inmate of the Don Dale Youth Detention Centre – Dylan Voller, who sued three media companies that had posted stories about him on their Facebook pages/accounts. While the problem Voller had was with the defamatory comments made by individual third-party users against him on the said post; instead of suing the individual commenters, Voller opted to sue the publishers of the post themselves, only to astonishingly succeed in doing so! The decision relating to whether the comments were actually defamatory in nature is still underway, however, it was very affirmatively settled that publishers would be liable for the comments made on content published by them.
RATIONALE OF THE COURT
The observations regarding what could potentially contribute towards the evolution of adjudicating the complex matters of intellectual property rights in the cyberspace domain, makes the present case a very interesting one to delve into. Some of the most relevant observations of the court in this regard are enumerated below:
- Judge Rothman drew comfort in the fact that every public page on Facebook has a set of exclusive administrator (admin) rights granted to its owner, which includes the feature of restricting and hiding comments made on posts published by them. This is akin to a filter which the admin of a Facebook page can choose to enable.
- To add to the same, it was observed that the Plaintiffs cannot take any steps of the like to remove/restrict such individual comments. It was noted that it is not possible to edit or delete third-party comments in advance (assuming any comments are allowed),however, it is possible, by the listing of common pronouns and other common parts of speech, to hide all (or substantially all) comments from third-party users and to vet comments prior to them being rendered available for third-party users.
- Careful comparisons of various modes of publication were made throughout the case, including publishing of content through newspapers, radio, etc. however, it was deduced that a publication on a public Facebook page cannot be treated in the same manner, giving the reasoning that upon publishing content on one’s public Facebook page, an implied invite is rendered to the members of the public, who have Facebook accounts, whether subscribers or otherwise, to comment and hold discussions over the said content.
- The Court also refused to apply the ‘ought to know’ test, as it must involve the capacity of the subsidiary publisher to remove defamatory material within a reasonable time from when it ought to have known. However, the Supreme Court was of the view that the aforementioned is not directly relevant to the issues of the present case.
Inter alia, by virtue of the abovementioned observations, the Court held that the media houses were liable for the comments made by third party individuals. While the defendants filed an appeal against the said decision, the same was dismissed on the ground that the applicants had failed to demonstrate error in the affirmative.
The case in discussion has interesting takes involved, which by and large places the entire onus of liability for defamatory remarks on to the publisher for publishing the content. This was concluded by virtue of the well-established tort law that defamation is an actionable wrong invoking strict liability in the sense that a publisher of defamatory imputations will be liable even in the absence of any intention to cause injury to reputation, and even if the defendant acted with reasonable care.
However, some foreseeable repercussions include – a free pass for online ‘trolls’, absolving them from any liability, and facilitating them to post offensive comments under the safe haven of the precedent laid down in the instant case. With the concept of trolls having their own set of legal complications, inter alia, the challenges to track down trolls who engage through fake accounts on social media platforms, such a safeguard may strain the scope of adjudication for cases of this nature, even further, and media houses may not be able to effectively operate in the cyberspace (with their hands being tied).
Moreover, when it has been sufficiently established that the treatment/adjudication of published content on public Facebook pages cannot be done in the usual manner, given the circumstances, it may be fair to amend the treatment of the complainant as well. Granting some relief/safeguards to the publisher because the responses they get, may be overwhelming to keep track of, may be a good idea.
In other words, public Facebook pages, which may get visitors from basically anyone using the social media platform, may have a hard time keeping track of each and every response it receives, especially when it is a media house, whose primary job is to disseminate information that is often sought for. For instance, if a renowned media house were to post an article or post on their Facebook account, the same would inevitably get thousands and thousands of comments, the said media houses simply would lack the manpower to review all comments and flag/remove/delete/hide potentially objectionable ones.
While technological aids can be used to shortlist objectionable comments (such as by filtration by certain phrases/keywords), the sheer number of such comments may be far too high to individually track down and tackle. A whole new concept of logistical technology will have to be devised solely for keeping track of responses. Hence, even though the Court in the instant case has emphasized on the use of the Facebook feature to filter key words, which would automatically hide all comments that include words specified therein; given the ever-changing nature of online jargon, this act solely cannot guarantee the elimination of derogatory statements.
Duty of Care
In addition to the utilization of the aforementioned feature by the publisher, it may perhaps be rational to apply the principle of reasonable duty of care on the injured party as well. The principle of reasonable duty of care refers to the obligation to take such reasonable care to protect one from all reasonably forseeable risk of harm.
By virtue of the above, utilizing the not-so-secret and effective feature of reporting a comment, could sufficiently qualify as discharging one’s duty of reasonable care. While the lines may be blur in respect of determining the extent of offence a statement might cause to an individual, the utilization of this feature offered by Facebook, essentially resolving the matter with just a click of a button.
In addition to the ill effect that could have already taken place before the reporting of the defamatory statement, the only forseeable drawback of reporting a comment feature, which offers considerable safeguards from offensive comments ranging from hate speech to spam/false information; is that the successful removal of the reported content would be subject to Facebook’s discretion and its perception of what qualifies as offensive/wrong in their view.
POSITION IN INDIA
Swami Ramdev & Anr. v. Facebook, Inc. & Ors
In 2019, the Delhi High Court ordered the removal of all defamatory content published online against spiritual guru – Baba Ramdev, without any territorial limit. Inter alia, what is pertinent to note is the fact that Baba Ramdev (plaintiff) had chosen to sue only Facebook Inc. amongst others, and not the individuals who had published the defamatory content in the first place, even though the Plaintiff was aware of who these individuals were.
Order & Rationale
The suit was ordered in favour of the Plaintiff and the Appeal made by the Defendants was also dismissed. The rationale given was as below:
- Non-utilization of the geo-blocking feature which refers to the method by which the platforms ensure that any content is blocked from a particular jurisdiction, e. blocking of content from country to country or from one region to another. It was held that since the unlawful act in case of content uploaded from India is committed from within India, a global injunction shall operate in respect of such content. In case of uploads which take place from outside India, the unlawful act would be the dissemination of such content in India, and thus in those cases the platforms may resort to geo-blocking.
- The High Court of Delhi also observed that uploading of data which the Court considers defamatory or offensive has taken place from IP addresses located in India, then Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material, from the computer network of these platforms on to which the said information and data has been replicated.
Shaharyar Ali Case
Moreover, in another recent conflict that arose between the Indian Union Minister Smriti Zubin Irani and UP Professor Shaharyar Ali, wherein the professor was found to have published derogatory remarks against the politician. During the hearing, the professor through his counsel, took the defense that the same was published by virtue of his account being hacked, and that the same was not published by him.
However, the Hon’ble Supreme Court was rather dissatisfied with the defense, stating that the same appears to be an afterthought as the professor failed to adduce any evidence in this regard either. The relevance of the said case of July 2021 appears when the Apex Court retorted that:
“We are not able to believe your hacking story. If your account was hacked, how can you access your own account? It can’t be called hacking. And if someone has used your account to post something, you will still be liable prima facie. You can prove your innocence before the trial court if you have not done anything.”
With the professor being denied bail, and the trial still being underway, this particular statement shows the extent of liability placed on the posts published under a said username.
While the trend to adjudicate matters of this nature appears to place the entire onus of liability on the publisher, without paying much heed to some of the rather uncontrollable factors at play, online. As rightly observed by Hon’ble Justice Pratibha M. Singh, the race between technology and the law could be termed as a hare and tortoise race – As technology gallops, the law tries to keep pace. The adjudication of such cases are at its infancy, however, the legal aspect revolving around these cases must be carefully scrutinized and principles must be evolved in an all pervasive manner, taking into account all of the aspects faced by both the parties. Moreover, prima facie, it would only be fair if every individual were held responsible for their individual actions, irrespective of whether the wrong was done online or offline.
 Swami Ramdev & Anr. vs Facebook, Inc. & Ors. on 23 October, 2019 (https://indiankanoon.org/doc/63056689/ )
 CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 9747 of 2021
Girishma Sai Chintalacheruvu, Associate at S.S. Rana has assisted in the research of this article.