YouTube: The Bi-Polar Behemoth

We are happy to bring to you a guest post on a recent order by the Madras High Court directing Google and You Tube to disclose the identity and IP address of the user who uploaded an allegedly defamatory video about Lebara Foundation. The author of this post wishes to remain anonymous.

 

YouTube: The Bi-Polar Behemoth

Anonymous

Recently on Spicy IP, Rahul wrote an excellent post describing YouTube’s most recent over-zealous efforts to police content on their website. In short, YouTube’s content monitoring system is ineffective, and outdated. While the sheer amount of videos uploaded every day, admittedly makes it difficult for YouTube to monitor content, it must undoubtedly do a better job when it comes to protecting innocent content creators from malicious take down notices. The 3 strike rule backfired in the context of curbing crime rates in the United States, and seems to have reared its ugly head once again in the YouTube realm with the same deleterious effects.

The fact that YouTube has always erred on the side of caution, even if at the expense of innocent content creators, has been part of internet folklore for a while now. This is exactly what makes the recent actions on part of YouTube in the recent ‘Marupakkam Seithigal’ (Translation: The other side news) case confounding.

For those who are unaware of the facts, YouTube has been directed by the Madras High court to reveal the details of a user in the form of his/her IP address (Marupakkam Seithigal) who posted an allegedly defamatory video against a private organization (Lebara Foundation). YouTube and Google, have been averse to following the orders of the court, fearing that their actions will expose them to privacy suit filed by Marupakam Seithigal. As I will explain later, their intransigence is unfounded, and in violation of their own Privacy Policy. Before I get ahead of myself however, a quick sojourn into the background of this dispute seems appropriate.

Facts

Originally, the Lebara Foundation filed a civil suit to remove the video posting in the page of ‘Marupakkam Seithigal’ on YouTube and also sought for a permanent injunction restraining them from uploading the defamatory material. (Unfortunately, or perhaps fortunately, I am unable to find the video or the content of the allegedly defamatory video online).

A single judge, then directed YouTube to disclose the IP addresses and other details of the uploader, with express directions that they were to restrict their disclosure with respect to videos with the title ‘Marupakkam Seithigal’ referencing Lebara. Also keep in mind that the single judge had not ruled on the defamation claim made by Lebara, it was merely trying to ascertain the identity of the uploader, in order to determine the rights of the Lebara Foundation, and the author of Marupakkam Seithigal.

YouTube and Google then appealed the decision, before a division bench. It had 2 main contentions: (1) it reiterated its position that since the IP address was located outside Indian jurisdiction, it would be untenable under prevailing Indian law to furnish details; (2) Additionally, Google and YouTube were apprehensive about whether, by complying with the High Court’s order, they would leave themselves open to a privacy suit by the uploader of Marupakkam Seithigal.

Dismissing the trepidations of Google, the division bench stated: “In our view, YouTube and Google are being unnecessarily apprehensive about the possibility of legal proceedings being initiated against them by the undisclosed Marupakkam, as certainly the agreement (with Marupakkam) does not contain a term that there would be no disclosure of information even if directed by the court. That being the position, we see no reason for any apprehensions of YouTube and Google of them being liable for any legal proceedings by Marupakkam”.

Further, they went on further to state that, “We are of the view that the minimum which is required to be done when the portal is used for materials which are prima facie offensive is to disclose the identity and IP address in pursuance of the direction passed by the single judge of the court. Instead, YouTube and Google want Lebara to go through a circuitous route which is not necessary.”

Analysis

I am intrigued by the Court’s usage of the word ‘circuitous’, when describing the privacy issue; it would have been more apt to describe the jurisdictional issue that YouTube raised. Nonetheless, YouTube in their memo clearly stated that while Indian Courts have the jurisdiction to order YouTube to remove access to the video in India, the same is territorially limited, meaning that an individual can still have access to the video from Papa New Guinea, or Burkina Faso, or anywhere else in the world. This is another baffling contention on YouTube’s part. While admittedly the Court has only decided prima facie that the video is defamatory, the video must then be defamatory irrespective of where the viewer is watching the video from. If not, the consequences for YouTube subscribers who are victims of genuinely infringing content, or defamatory content are deplorable. They will be required to go to each jurisdiction individually to get the courts to request YouTube to cut off access in that particular territory to the video!

Common sense would dictate that YouTube should remove access to the infringing content universally, or to take down the defamatory content till a final court order. The difference of course is that in the event the allegedly defamatory content is ruled to be bona fide, the former would not need a re-upload while the latter would. However, even such an approach is not without its own difficulties.

Putatively, there are situations where content that is prima facie defamatory in one jurisdiction is not in another. A more liberal court might not find the content infringing, while a conservative court might find it appalling. In that case, a universal ban would not make much sense, and a jurisdiction-by-jurisdiction analysis should be preferred. Is there a middle path? Does YouTube want to have its universal actions decided by a court in a single jurisdiction? As Asheeta Regidi notes here, the real fear that YouTube should have is if it refuses to remove access to the infringing material outside India (it has already removed access within India) then it loses its immunity as an intermediary, which opens the door for Lebara to sue YouTube for retaining the defamatory content. In the immortal words of Uncle Scrooge, “Bah, Humbug!”!

With regards the privacy issue however, it is uncertain where Google’s obstinacy originates from and how YouTube will, if at all, be liable to the uploader of ‘Marupakkam Seithigal’, when their own Privacy Policy allows them to reveal the information under a court order!

In relevant part, their Privacy Policy states:

“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.”

Conclusion

Why a colossal MNC like Google feels threatened by a hypothetical privacy suit, and is willing to go so far as vicariously protecting its own interests rather than complying with an express diktat from the Court, is beyond me. One possible reason could be that YouTube is afraid of the precedent that such a decision would create: frivolous requests for IP addresses for any sort of defamatory content. In this case however, the request has not been made by a YouTube user, but rather demanded by a Court order. Surely, there is a difference. Besides, from when has Google assumed the mantle of the Privacy Messiah?

Before signing off, I must express my slight apprehension with Asheeta Ragidi’s post. Particularly, where she describes the reasons why YouTube must choose to release the information. She reports:

“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.”

I disagree with her statement on grounds that the uploader of Marupakkam Seithigal is not a “criminal”, and it is dangerous to brand them as such. Aspersions on guilt aside, this is a civil suit filed by Lebara Foundation, and more importantly, the High Court itself notes that the information is sought to determine the rights between the parties. To label the uploader as a criminal before his/her rights have been adjudged by a court is irresponsible.

Image from here