Concerns on the “Nirmal Baba” gag order

Before TV Channels decried Nirmal Baba as a charlatan and criminal complaints were filed against him in various States, some articles appeared online which did the same. One such article titled as, “is nirmal baba a fraud?” was posted on what appears to be a blogging platform called “hub pages” by a user having its username as, “Indijobs”. This resulted in a legal action before the Delhi High Court which raises several important issues including, liability of intermediaries, jurisdiction of internet websites and blocking of websites.

The Facts

Aggrieved by the contents of the online Article, “is nirmal baba a fraud ?”, Nirmal Baba approached the Delhi High Court in the case titled as, Nirmaljit Singh Narula vs Indijobs At Hubpages.Com. The Case which prayed for a mandatory injunction alleged that contents of the Article were defamatory and harming his reputation and standing.

As per an Order dated 30.03.2012, an interim injunction was passed which also contains extracts of the article. I am pasting it below since it is vital to understanding the case which has been set up by Nirmal Baba and is part of a reported judgment (also subsequent press reports have been severely critical of him and I doubt any prejudice will be caused to him from extracting contents of the Order).

6. As per the plaintiff, the defendant No.1 has written a false and defamatory article about plaintiff which, the defendant No.2 has published and the same is titled “Is Nirmal Baba a Fraud?” at http://indijobs.hubpages.com/hub/Is-Nirmal-Baba-a-Fraud,. In the said article defendants No.1 and 2 have made false statements about the plaintiff that he is “a suspicious guru” and have made false and derogatory imputations by alleging that plaintiff uses „Vashikaran mantra’, that is black magic, tantric powers in the following words – “He is quite confident about his vashikaran mantra by which he can control the thinking power of anyone on this planet.”..” He looks like a fraudster masquerading as a spiritual guru.”

After noting the contents of the article, the Court stated that the Plaintiff had addressed an email to Hubpages, to take down the page and reveal the identity of the blogger. However, Hubpages resisted this request by stating that the article reflected a person’s opinion about a public personality. Thereafter a disciple of Nirmal Baba wrote to Hubpages stating that the contents were not reflections of a mere opinion but contain false and defamatory accusations. Even this request was resisted by the intermediary. This resulted in Nirmal Baba filing the case.

The Order

The Court after noting the pleadings of the Plaintiff which contained the above mentioned facts, passed an ex-parte injunction reasoning that the Plaintiff had made out a good prima facia case. The injunction restrains Defendant No. 2 from publishing the article. Paraphrasing paragraphs 23 till 26, the injunction is detailed into specific reliefs

  1. Defendant No. 2 (hubpages) is restrained from publishing any defamatory content against the Plaintiff (Nirmal Baba) whether written by Defendant No. 1 (Indijobs) or any other person till the next date of hearing
  2. This injunction applies not only to content uploaded in the future but even in the past, for which Defendant No. 2 (hubpages) has to take down the content within 36 hours.
  3. If Defendant No. 2 (hubpages) fails to take down the content within 36 hours then Defendant No. 5 (the registrar) has been ordered to block it from public access in India.
  4. Defendant No. 2 (hubpages) shall disclose the identity of Defendant No. 1 (Indijobs)

Concerns which emerge

The Court on Intermediaries

One of the most significant aspects of the case is its reliance on the Information Technology (Intermediaries Guidelines) Rules 2011 (referred to as the IT Rules). The IT Rules have been under a cloud recently as they have been described to be against our constitutional provisions and have even been flagged for discussion in parliament. However, at present they do have the force of law. The Court refers to these rules extensively, in prima facia expressing an opinion that Hubpages has not acted in compliance with the Rules. It states that:

14. In view of the abovesaid act of defendant No.2, it is an “intermediary” within the definition of Section 2(1) (w) and Section 79 of the Information Technology Act, 2000. Under Section 79 (3)(b) of the IT Act,2000, defendant No.2 is under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service. He is bound to comply with Information Technology (Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due diligence and not knowingly host or publish any information that is grossly harmful, defamatory, libellious, disparaging or otherwise unlawful.

15. Such intermediary is not liable for third party content if, it removes access to defamatory content on receipt of actual knowledge .Rule 3(4) of the said rule provides obligation of an intermediary to remove such defamatory content within 36 hours from receipt of actual knowledge. The said rule expressly provides as follows- ” The Intermediary , on whose computer system the information is stored or hosted or published , upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in sub rule (2) above, shall act within 36 hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub rule (2).”

16. Prima facie, it appears that the defendant No.2 acted in clear non- compliance of the said due diligence obligations under the said rules read with Section 79 of IT Act, 2000 by not removing illegal information even after it obtained actual knowledge of the same when plaintiff has served on it cease and desist notice on it on 29.11.2011.

On a broader plain this reveals that Courts will increasingly treat the IT Rules and make reference to its provisions if it continues on our statute books. Secondly, the broad categories under Rule 3(2), do not raise any alarm bells. Moreover, the 36 hour deadline seems to be quite agreeable to the Court. Though the IT Rules are not made reference to in the operative portion of the injunction which states this 36 hour limit in terms of compliance for the Domain Registrar, it certainly must have played in the Courts mind, since Courts intuitively grant time for compliance in multiples of 24 hours. Also, it goes without saying, that as Defendant No. 2 (hubpages) did not take down the page on the notice which was sent to it, it now has most certainly lost its protection under Section 79 of the IT Act.

Application of Banyan Tree

The Banyan Tree Judgment which arose from a plaintiff alleging a passing off action against a defendant. Since passing off is a common law action not arising out of a specific statute (such as the trademark act), the jurisdictional test for it is contained under Secs. 18-20 of the Code of Civil Procedure, 1908. The Banyan Tree Judgment sought to prescribe more definite tests to Sec. 20 of the Code of Civil Procedure, 1908, which states that a Court will have territorial jurisdiction over a case, if the cause of action in part or in whole arises.

Adapting this test to passing off actions concerning websites the Court stated that there should be some effects caused within the territory of the Court and the Plaintiff has to specifically show the specific targeting of the forum where the court action is preferred. Making reference to it, the Court stated that:

According to the Banyan Tree Holding (P) Ltd vs A. Murali Krishna Reddy and Anr. ( Judgment dated 23.11.2008 passed in CS (OS) No.894/2008 by the Division Bench of this Court, it was held that for “effects test”to apply where a forum state is justified in assuming personal jurisdiction over a foreign defendant, plaintiff must plead and show primafacie that specific targeting of the forum state by defendant resulted in an injury or harm to the plaintiff in the forum state in which case the forum state, can presume jurisdiction over out of state defendant. In view of abovementioned reasons, plaintiff has sufficiently shown how defendant No.2 is targeting Indian visitors and transacting business in India and that the impugned articles have caused serious disparagement to the reputation of the plaintiff. Prima facie, the plaintiff has satisfied this Court that it assumes personal jurisdiction over defendants No.1 and 2.

In my opinion, the reasoning of the Court in adopting jurisdiction is a short on reasoning. The specific targeting which has been done by Defendant No. 2 is not brought out, inasmuch as the website would be naturally ubitious and accessible in India. With regard to transacting business in India, the Plaintiff has alleged in its pleadings that Defendant No. 2 monetizes each posting by a blogger on its platform by integrating it with the google ad sense program. To me these factors lack the specific targeting which is required by the Banyan Tree Test. In any case, the effects test itself will require further refinement through adjudication and at best can be called imperfect at present.

Attempt at Website Blocking

As stated before on non-compliance of the Injunction by Defendant No. 2 (Hubpages), Defendant No. 5 (the Domain registrar) has been ordered to specifically block the access of the domain in India. In the past we have seen block order being given out to ISP’s. The domain block from the level of a domain registrar appears to be a first.