Bengaluru/New Delhi:Google has sought interim relief against its search engine being classified as a “significant social media intermediary”, placing it under the purview of India’s revised IT Rules that have drawn widespread ire since coming into force on May 25.
In its plea to the Delhi High Court on Wednesday, the global technology giant asked that a previous ruling directing it to remove objectionable content from its search results globally—by a single-judge bench in April—be overturned.
Google told the court that it is merely an aggregator and not a social media intermediary and that no coercive action should be taken against it. The US-headquartered firm said the earlier order had “misinterpreted” and “misapplied” the Information Technology Rules, 2021 to its search engine. The plea was heard by a division bench of Chief Justice DN Patel and Justice Jyoti Singh.
The April order—the first such after India’s new IT rules were promulgated in February—was the result of a petition by a woman who claimed that her photographs were uploaded onto pornographic websites without her consent. She had argued that she shouldn’t be subjected to having to identify URLs that misuse her photograph to request takedowns and instead they should be removed proactively.
Stating that it did not have any issues in complying with the court’s directions with respect to the individual petitioner, Google told the Court on Wednesday that it was aggrieved by the “template order” issued by the single-judge bench.
A representative for Google told ET that “search engines are a reflection of the content and information that is available on the Internet and while we maintain a consistent policy over removal of objectionable content from search results, the Delhi High Court order has cast certain obligations that would wrongly classify Google Search as a social media intermediary.”
Google also owns online video sharing and social media platform YouTube, which is categorised as a significant social media intermediary in India with over five million registered users in the country.
The division bench, which said it would not pass any interim order on the case, has now sought responses from both the Centre and the Delhi state government as well as from the Internet Service Providers Association of India. Others who have also been asked to respond by July 25 include social networks Facebook and Instagram, which were respondents in the single-judge case, the pornographic site and the woman petitioner on whose plea the single judge had initially ruled in April.
The next hearing of the case has also been set for July 25.
Appearing for Google on Wednesday, Senior Advocate Harish Salve argued that ,”firstly, we are a search engine and not a Social Media Intermediary so we are not covered under the definition of Significant Social Media Intermediary in the IT Rules, 2021,” according to legal news portal Livelaw. “Secondly, some content may be offensive in Indian law but not offensive outside India, so a blanket order to remove the content globally can’t be issued,” he said.
Legal experts are of the view that Google’s stance bears merit as it’s search engine does not mandate users to register on the platform to search for information.
“Google’s contention that it is not a ‘Social Media Intermediary’ under the new Information Technology Rules, 2021 but rather a search engine, may have merit,” said Atul Pandey, Partner at Khaitan & Co.
The government introduced The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, on February 25, as a means to combat the spread of misinformation through social media and regulate content on streaming services.
The new IT rules define significant social media intermediaries as those with over five million users in the country. They are required to appoint a resident grievance officer, chief compliance officer and nodal contact person and to publish the details of these executives on their website, along with a physical contact address. The rules also mandate traceability of the originator of messages, along with a provision for voluntary verification as a means to establish user identity.
Google and social networks such as Facebook, Instagram and WhatsApp have written to the government that they are in compliance with the new rules.
Pawan Duggal, Senior Supreme Court Lawyer, who was the Amicus Curiae – friend of the court in the single judge bench, said the new IT rules brought more effective remedies to lay users in India to take down content that is misused or misrepresented.
“By mandating criminal liability for intermediaries, it (Government) has sought to provide more enforcement for intermediaries to remove such content. To that extent they are distinctly game changing, but this may not necessarily find favour with a large number of intermediaries as their workload for compliances will increase, as also their costs,” Duggal said. “It will be interesting to see how the division bench deals with this matter.”
Google has monopoly over search in India with nearly 98% penetration both on desktop as well as on mobile. “If the Court was to accept the view being proposed by Google, then, though it may be an intermediary, with a subscription base larger than the thresholds provided, they may have some relief with regard to appointment of various officers, which a significant social media intermediary needs to appoint,” said Sajai Singh, Partner at J Sagar Associates.
