Neutral Citation Number: 2023:DHC:2806
intermediaries with policing and monitoring of content under the
garb of “due diligence”, and that Rule 3(1)(d) affirms that an
intermediary ought to take down content only upon receipt of the
Court order or order from government agency. This has been
clarified by the Executive vide FAQs dated 01.11.2021 whereby it is
stated that the communication between the authorities to the
intermediary should contain “platform specific identified URLs” and
“justification and evidence”. Thus, Orders for disablement of content
have to be qua specific URLs and intermediaries are not expected to
proactively sift through unlimited content to determine its
legitimacy; their role must be neutral and not reactive [Refer to
Muskan Jattana v. Union of India, W.P.(Crl.) 956 of 2021and
Vandana Pal v. Union of India, W.P.(Crl.) 1669/2021]. Further,
proactive monitoring would lead to the intermediary losing
immunity/safe harbour protection provided under Section 79.
Moreover, this Court in Anchit Chawla v. Google India, W.P.(C)
13921/2018, has recognised that Orders only against search engines
are futile, and directions need to be passed against actual publishers
to ensure holistic removal of content. Allowing intermediaries to
apply its own mind to adjudge the legitimacy of online content will
lead to chilling free speech, over-blocking as well as circumventing
the fundamental right of online speech of third-parties. It would also
undermine the right to privacy of users, which has been recognized
by the Supreme Court, whose personal or sensitive personal
data/information would be interfered with, and it would go against
various decisions of the Supreme Court where blanket orders or precensorship of content was held to be illegal.
Signature Not Verified
Digitally Signed
By:SHAZAAD ZAKIR
Signing Date:26.04.2023
17:19:50
W.P.(CRL) 1505/2021
Page 49 of 88
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