The Delhi High Court on Thursday ordered social media intermediaries and search engines including Facebook, Google and X to take down/ remove all videos recordings of court proceedings before Justice Swarana Kanta sharma in the excise policy case in which Aam Aadmi Party (AAP) chief Arvind Kejriwal had appeared and argued in person.
The Court also issued notices to Arvind Kejriwal, several leaders of AAP and others on the plea seeking contempt of court action against them for publishing such videos in violation of Delhi High Court's rules.
A Division Bench of Justices V Kameswar Rao and Justice Manmeet Pritam Singh Arora passed the order on a public interest litigation (PIL) petition filed by advocate Vaibhav Singh.
"The petition states that the proceedings as held in one of the courts of this HC on April 13 have been unauthorisedly recorded, uploaded and transmitted on social media which is showing this court in bad light. He would submit that the uploading of the proceedings of this court is prohibited under the Delhi High Court Rules. Liberty is granted to the petitioner to inform the intermediaries if the videos of the proceedings surface on social media. The respondents shall take down the proceedings forthwith. We issue notice to respondent no. 4 and other respondents (Kejriwal and others)," the Court ordered.
The Court also sought the response of the Ministry of Electronics and Information Technology (MEITY).
"We also note that the IT Rules 2021 specifcially rule 3(1)(b)(xi) states the following the perusal of the rule reveals that intermediary has an obligation to through its rules and regulation/privacy policy to make reasonable efforts by itself or cause user of its computer resource to not host, display, publish, transmit, story or share any information that violates the law for the time being in force. Accordingly, we issue notice to Ministry of Electronics and Information Technology (MEITY), GOI, through its secretary for its appearance in the proceedings on the next date of hearing," the Court said.
The matter will be heard again in July.
The petitioner Vaibhav Singh took objection to the video recordings of court proceedings in which Kejriwal argued his plea seeking the recusal of Justice Sharma.
The videos were published on social media.
Apart from Kejriwal and Ravish Kumar, the petitioner sought action against Congress leader Digvijay Singh, AAP's Manish Sisodia, Sanjay Singh as well as Sanjeev Jha, Purandeep Sawhney, Jarnail Singh, Mukesh Ahlawat and Vinay Mishra.
The plea also sought directions to remove the videos from the social media platforms.
Notably, advocate Vaibhav Singh had earlier filed a complaint before the Registrar General of the High Court seeking action against Kejriwal and others.
In his present petition, Singh said that Kejriwal made "various frivolous, scandalous and misleading submissions before the Hon'ble Court without any basis against this Temple of Justice and also against the Noble Court of Justice Ms Swarana Kanta Sharma".
As per the petition,
"That several leader of Aam Aadmi Party including members of various other opposition parties have intentionally and deliberately and with the wilful intention to malign the image of this Hon'ble Court and to manipulate/misguide and also to make negative image of this institutions nationally and globally and also in eyes of general public living in India and outside India the court proceedings had done the video and audio recording of the court proceedings and circulated on various social media platforms."
He added that the recordings were circulated on X, Facebook, Instagram, YouTube and various new channels.
"The circumstances in which the audio/video recording of the Court Proceedings was done and shared, retweeted and posted by various political leaders and the way it went viral smells deep conspiracy by Mr. Arvind Kejriwal and various leaders of Aam Admi Party to malign the image of this noble institution and also to mislead the common people of this nation and also to show the general public that the judiciary is working on the behest of some political parties and also under the pressure of the Central Government," he said.
Singh's counsel argued that Delhi High Court rules prohibit the recording of court proceedings unless expressly permitted by the Court.
"These rules are very clear that any court proceeding cannot be recorded without express permission of the court. In this case the proceedings were going on April 13 in respect of a recusal application moved by the respondent (Kejriwal). Those proceedings have been recorded. Not only recorded but published on social media," it was contended.
The posts on social media were intended to scandalise court proceedings, it was submitted.
"As far as reposting is concerned, that tantamounts to publication. One Digvijay Singh has uploaded it. There are others also who have uploaded it. These posts are to scandalise the court proceedings."
"Your case is it could not have been recorded or shared. According to you, recording and sharing is prohibited," the Bench asked.
"Yes, we have also sought initiation of contempt proceedings. It is not that the entire proceedings have been uploaded. The edited parts have been uploaded, which suits their agenda," the counsel responded.
The Bench asked counsel for Meta, X and Google whether it is possible to identify who recorded such video first.
"Tell us one thing, is it possible to identify who uploaded it for the first time? Suppose we were to ask you to tell us who recorded, will you be able to tell us?"
"The first person who recorded may not be known," the counsel for one of the intermediaries replied.
"Why?" the Bench asked.
"Because that technology is not there," the counsel responded.
The counsel for Meta said that the identity of a person who uploads a video on X can be traced using phone number.
"Today if I upload a video, there is a URL. Every time an account is created on my platform, a mobile number is required. I will give that mobile number, which will help my lords and from the mobile numbers, the details of the person can be found. The law enforcement agencies can also find that," he submitted.
The Court then asked whether there is any technology to remove URLs carrying offending videos which are similar to the one already removed.
"If you see his prayer, one is remove all the videos. That you can do? If it is allowed, it will also include that as and when subsequent URLs come up, they will automatically be removed?" the Bench asked.
Such automatic removal technology may not be available with the intermediaries, the lawyer submitted.
"We are concerned with the larger interest of the institution. If we don't control this... These aspects have to be looked into," the Court said.
The Bench then asked the government what it can do.
"This impacts the institution of the judiciary," Additional Solicitor General (ASG) Chetan Sharma said on behalf of Central government.
"There are different types of content. One is porn etc. What happens in that there is a technology only for that limited extent then mapping and take down can happen automatically. This is being done in coordination with everyone. Then comes content which is defamatory which includes violation law, trademarks or copyright. What happens in that case is that I as an intermediary can't act as a super-censor. There is obligation under the rules that I will endeavour to deploy whatever tools I have. but the diffuclty is that every time the video is uploaded, a snippet of it is uploaded. Therefore, it may not be identified. We as intermediaries are not able to judge the content. For example, the Delhi High Court website gets hacked and someone puts a content which is egregious. The High Court will not have liability," the counsel for X said.
"This needs to be taken to its logical conclusion," the ASG said.
"We don't have the technology to differentiate. How do we differentiate whether the video being uploaded is of Delhi High Court, Supreme Court and whether it is permitted or not. The language used in the law is 'we will endeavour'. Because the technology is not perfect. We can't differentiate. We have said that we can't pro-actively monitor our platform," the counsel for Meta said.
"We just wanted to know Mr Datar whether it is technically feasible, every time that a particular video resurfaces on social media that a person has to inform the platforms to remove it. We wanted to know that if there is any technology that whenever these proceedings are uploaded, they are automatically removed," the Court asked Senior Counsel Arvind Datar appearing for Meta.
"More than 400-500 million messages pass through me. I can't adopt the role of censor. Delhi High Court VC rules prohibit it. Supreme Court has no rules. So to answer your lordships question, technically it is not feasible to identify that this particular image violates the Delhi High Court VC Rules," Datar replied.
"When Delhi rules bar recording anything, uploading would be unauthorised or not?" the Court asked.
"It will be unauthorised. That is why we took it down when we got the Registrar General's letter," Datar replied.
"Even for a lawyer to join the proceedings, they have to sign the undertaking that they will not record," the Bench said.
"We have taken down the URLs the RG letter pointed. The other prayer is for contempt. I don't think Facebok can be held liable for contempt. My lord has been sitting for years, first time this complaint has come. It has been brought to the notice of the court for the first time," Datar argued.
"There is a larger issue also," the Bench said.
"The larger issue, lordships can take anytime they want. But my lordship may record that we have taken it down. Contempt may not be made because we have not wilfully defaulted," Datar submitted.
"Today the court may direct the takedown but thereafter the same video may be uploaded and then they (intermediaries) will say that they need another direction from the authorities," the counsel for the petitioner said.
"We will say that these URLs of the proceedings of April 13 (when Kejriwal argued his recusal application) will be taken off," the Court remarked.
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