Google and its subsidiary YouTube are reported to have received an order from the Madras High Court to provide the user details of a user accused of uploading defamatory content. Google and YouTube are unwilling to comply with the court order and disclose the information. The request for information here is a very normal request, and it the basic duty, under law, of YouTube to comply with such a request. YouTube’s reluctance to share information is therefore very surprising.

User privacy suits scaring YouTube

The only explanation for this sudden resistance to provide information seems to be the way websites have been under fire for not protecting their users’ privacy. YouTube, in fact, states that it fears that complying with the order will open them up to a privacy suit from the user, Marupakkam Seithigal. Sharing information on a large-scale basis, as is seen with the NSA in America, or the sharing of information for ads is definitely something to worry about. However, sharing information in compliance with a court order, for investigation for a specific offence, is not only normal, but also necessary. Every privacy policy, including YouTube’s own Privacy Policy, has a clause to this effect.

YouTube’s responsibility for removal of defamatory content

The law in relation to removal of any offending content, including defamatory content, is very straightforward. Under Indian laws, the Information Technology (Intermediaries Guidelines) Rules, 2011 imposes an obligation on intermediaries (in this case, the website YouTube) to remove any defamatory content. When there is a court order, the content must be removed within 36 hours.

YouTube itself has a system for removal and blocking of defamatory content. YouTube notes that sometimes a court order is required for the removal of the content, but advises its users to approach the offending uploader directly, since acquiring a court order is a cumbersome process. Clearly, YouTube through its policies, intends to comply with court orders to remove offending content. The petitioner, a company named Lebara, approached the courts for the removal of the defamatory video. When a court order is already present, YouTube’s resistance of it is surprising, and also in contradiction with its own content removal policy.

YouTube’s Privacy Policy states it can share user data with courts

YouTube’s Privacy Policy, itself states that user data can be shared with courts. The relevant part reads as:

‘We will share personal information … outside of Google if we have a good-faith belief that … disclosure of the information is reasonably necessary to … meet any applicable law, regulation, legal process or enforceable governmental request.’

The applicability of this clause is not restricted to American courts, but applies to any court orders or official government requests from anywhere in the world.

The Intermediary Guidelines also impose an obligation on an intermediary to provide information when requested through a lawful order. This includes a court order. In fact, Rule 3(7) of the Intermediary Guidelines specify that information must be provided for the ‘purpose of verification of identity’. This is exactly the information sought by the Madras High Court order- the identity and the IP address of the user. Similar obligations can also be found under the laws in other countries. YouTube’s refusal to share the information is therefore, again in contradiction with its own policies, and in direct violation of Indian laws.

Only Indian access to offending video blocked

On receiving a direction to remove the offending video, YouTube removed access to the video from India. However, it has surprisingly refused to prevent the video from being accessed from other countries, stating that it amounts to ‘monitoring of content’ posted online.

YouTube’s differentiation based on the place of access is surprising. If a URL is illegal or offensive, YouTube must remove it, regardless of the place of access. It is not very clear if YouTube has removed the video itself, and has been asked to keep track of and remove any other such videos that turn up. In this case, YouTube’s refusal to monitor other videos is understandable, since it will be impossible for YouTube to monitor every single video that is put up.

However, it may be that the video itself has been retained, and only access from India has been removed, while access from other countries has been retained. If this is the case, then YouTube’s content removal system would be rendered pointless. Defamatory matter is defamatory anywhere in the world, with no differentiation based on the place of access. The obligation under the law is very clear, YouTube is required to remove the video itself. Refusing to do so can lead to YouTube losing its immunity as an intermediary.

YouTube apprehensive of privacy suits

Another of YouTube’s argument in this case is that it fears that disclosing the user information will lead to a suit of breach of trust against it from Marupakkam. This fear is also completely unfounded, since YouTube specifies in its Privacy Policy that it can share information with a government body.

As far as suits go, YouTube’s real fear should be if it loses its immunity as an intermediary by refusing to remove access to the video from other countries. Once it loses its immunity, Lebara itself can sue YouTube for retaining the defamatory content. Considering that a suit from Marupakkam is less likely to hold water, but a suit from Lebara will, YouTube needs to be more concerned about the latter.

YouTube taking an extreme stance

While maintaining user privacy is necessary, YouTube appears to be taking an extreme and unnecessary stance by refusing to share this information with the Madras High Court. Sharing a specific piece of information for investigating a crime is a better way to protect the people than to keep the privacy of the criminal. The Madras High Court itself has overruled YouTube’s arguments and directed it to provide the information. YouTube’s next step will have to be seen.

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